A
Constitutional Proposal
to
Return to Our Roots
and
Regenerate Our Federation

A Letter and
a few important Introductory Notes
and Background

A Few Highlights of the Revised and
Updated Constitution Proposal

Following, is a brief summary of a few of the highlight of our proposed revised and updated Canadian Constitution:

The Canadian Constitution Committee

Box 143, Cayley, AB  T0L 0P0

June 1, 2000

Dear Fellow Canadian:

This accompanying document is a proposed Revised and Updated Canadian Constitution for the Twenty-First Century. Its content and intent follow closely the BNA Act which has served as our Constitution since 1867. This updated version clarifies and, where necessary, revises the original Act.

My committee, with the assistance and input of concerned Canadians in several provinces, has been working on this project for three years; and it should be noted that this proposed Constitution at this initial stage does not include the copious footnotes and amendments found in our present Constitution. They, of necessity, will have to be included once this document has been ratified by the Canadian People by way of referendum as The Canadian Constitution. This initial (proposed) edition is merely the precise text of our proposed Constitution for this new Millennium. It might be instructive to spend an hour in your public library comparing its text with our present Constitution.

The balance of this document is to give you a little background as to why we felt the urgent need for revision and updating of our Constitution at this time in the battle for national unity, and the motivating factor in launching this project.

Wishing you a stimulating and challenging read.

Neil Wilson, Chairman
The Canadian Constitution Committee

THE CANADIAN CONSTITUTION
2000 A.D.

A Proposed Revised
& Updated Constitution

A Little Background

Regardless of any misunderstandings or mistakes in the early constitutional development and framework of our country, the British North America Act for the past 133 years has been accepted by our governments, courts, institutions and general citizenry, as our Constitution. And upon examination, it’s basically a sound and reasonable ‘constitution,’ even though in reality it is only an Act of the Imperial Parliament which was never validated by the Canadian People by way of Referendum.

Our widespread disillusionment in several major regions of Canada today, and our national ‘unity’ problem, are not caused by or the result of the BNA Act or its usage and acceptance as our Constitution. Indeed, today’s problems are largely the result of the central government’s violation and disregard of the BNA Act as our Constitution, and the widespread ignorance of our provincial governments and our citizenry at large regarding our rights, our powers and responsibilities outlined in the Act.

The provinces were here, as colonies or territories, long before any central government. And, according to the BNA Act, the provinces allocated to the central government certain areas of jurisdiction, listed in Section 91 of the Act, such as national defence, foreign policy and affairs, postal services, banking services, offshore fisheries, etc. — those areas which by their very nature are national in scope. But the provinces retained for themselves exclusive jurisdiction over education, medical services, welfare, renewable and non-renewable natural resources, property and civil rights, etc. — those areas of jurisdiction by nature provincial and of a local or private nature, including direct taxation (income tax), as outlined in Sections 92, 92A and 93 of the Act.

Federal Invasion of
Provincial Jurisdiction

Ottawa, in 1917, passed the Income War Tax Act, by which the central government ‘borrowed’ the provinces’ exclusive constitutional right to levy direct taxation. This invasion of provincial jurisdiction was to meet the financial exigencies of wartime and to end within 24 to 36 months.

This ‘borrowing’ or exchanging of jurisdiction would certainly have been unconstitutional in peacetime without the sanction of a War-Measures-type Act. However, to this day Ottawa has not surrendered the income-tax jurisdiction it borrowed from the provinces 83 years ago!

Then, during the Second World War, this central government invasion of provincial areas of jurisdiction escalated, again under the exigencies of war.

Federal Invasion Becomes Permanent

The Globe and Mail, Sept. 17, 1997, under the caption “A constitutional mess on the Rideau,” published a most significant and revealing letter by Eric Kierans of Halifax, who is a former member of the Quebec cabinet of Jean Lesage and the federal cabinet of Prime Minister Trudeau. Following, are excerpts:

However, in 1942, to strengthen the war effort, all provinces agreed to cede their authority over personal and corporate taxation to the federal government (Dominion-Provincial Taxation Agreement Act, 1942). The agreement was to last for the duration of the war plus 12 months.

As a result of the agreement, Canadian economic and fiscal policies were fully centralized. In 1943, the Dominion government collected 76 per cent of all governments’ revenues. Ottawa officialdom was at the zenith of its power and, moreover, performed brilliantly.

A simple question soon surfaced to torment the officials who had achieved so much — Graham Towers, Alex Skelton, W.A. Mackintosh, Donald Gordon, Robert Bryce, Mitchell Sharp, et al. — How do we extend this power and authority into the peacetime years ahead?

Canada was a centralized state, a Keynesian prerequisite. It could remain so only by a successful amendment to the BNA Act or by repudiating the Taxation Agreement Act of 1942 and refusing to give up control of the income taxes. The full weight of the Department of Finance and the Bank of Canada persuaded the minister of finance, J.L. Ilsley, to renege on the agreement.

In the Dominion-Provincial Conference of 1945-46, Mr. Ilsley stated that it was ‘not the intention of the Dominion Government to consider a return to pre-war arrangements’ and no, ‘it is not proposed to seek a constitutional amendment.’ The Dominion government would provide enhanced subsidies in exchange for the withdrawal of the provinces from the income-tax fields. Times had changed, he noted.

The conference failed. But the Dominion government pushed through its proposals by budgetary resolutions. The Keynesian promises of high and stable employment and an ‘edifice of social programs’ were then introduced as the vision of postwar Canada.

The cost? It can best be described in the words of Angus L. Macdonald, premier of Nova Scotia, who had seen this coming during his wartime years as minister of national defence for naval services. In an emotional address to the conference, he said:

‘Provincial autonomy will be gone. Provincial independence will vanish. Provincial dignity will disappear. Provincial governments will become mere annuitants of Ottawa.’

There was no response. It was the way Ottawa wanted relations with the provinces to be.

Quebec premier Maurice Duplessis said soberly: ‘In my opinion, if we accepted the proposals of the federal government, Confederation could not endure.’ (Foregoing emphases added)

‘We are still cleaning up the mess’ (editorial — Sept. 3) True! A constitutional mess to make Keynesianism possible on the Rideau.

Well, there it is, right from three of Canada’s top wartime leaders, two of whom served in the federal cabinet and two as provincial premiers — the story of how Ottawa brushed aside our ‘Constitution,’ the BNA Act, and invaded Provincial areas of jurisdiction and sovereignty concerning both social policy and taxation. And, with the federal ‘edifice of social programs’ using tax-dollars rightfully belonging to the provinces, Ottawa has progressively escalated its invasion of provincial jurisdiction until today we have an almost all-powerful, centralized, non-democratic government in Ottawa, largely annuitant provincial governments, widespread federal-provincial wrangling, with a distinct threat of future fragmentation.

This situation has to be addressed and corrected, and a sound basis laid for genuine national unity, if we are to hand down to our grandchildren a great and united country and the rich heritage our forefathers handed down to us. And this requires a return to our roots and constitutional government, and the regeneration of our country.

That, and nothing less, has been the motivation for this initiative of a Revised and Updated Canadian Constitution.

Getting back to
Constitutional Government

Foremost in our minds in undertaking the essential revision and updating of our Constitution, was the fact that, while our Canadian citizenry has never been given an opportunity of ratifying the British North America Act by way of referendum, it nevertheless has proven itself to be a wisely conceived set of guidelines for good and responsible government to the extent that governments adhered, to it. And, indeed, over a long period of time it has been widely accepted as our Constitution.

Therefore, throughout any revisions, we have been careful in confirming or clarifying points or sections not to change the original intent, especially in the original division of powers and jurisdictions.

Moreover, in considering every idea, aspect and original intent, in revising and updating our Constitution we were ever mindful of the guiding principles inherent in our Common Law heritage

The Constitution of Canada does not belong to Parliament, or to the Legislatures; it belongs to the country, and it is there that the citizens of our country will find the protection of their rights. And, furthermore, our Constitution is to assist our governments and citizens in the maintenance of Law, Order and Justice, and in the preservation, expression and transmittal to succeeding generations of our nation’s culture and heritage.

It is our profound view that a constitution must engender respect for our past, our roots and history; love, honour and loyalty to our country, our home and homeland; and a spirit of unity, national pride, confidence and faith in our purpose and future.

We believe that our proposed Revised and Updated Constitution’s acceptance and confirmation would constitute a major step towards these high, yet realistic views.

ADDENDUM

The following notes are intended as a brief explanation of the reasons why the so-called Charter of Rights and Freedoms has been omitted in our proposed Constitution:

         The rights and freedoms the Charter claims to give Canadians are rights and freedoms we’ve enjoyed for centuries before Mr. Trudeau and his Charter came along. We enjoyed them as part of our English Common-Law heritage, secured by long practise and precedent of our forefathers for countless generations, going back to Magna Carta and even beyond to the Commandments and Statutes found in the Bible. Indeed, it should be understood that under our Canadian Common Law, the Citizen enjoys ALL rights and freedoms not expressly prohibited by the state — thou shalt not murder, thou shalt not steal, thou shalt not give false witness, etc. — and that these rights derive from God, not the state; and they may be denied only for grave crimes, after due judicial process by one’s peers in a Common-Law court.

         However, the Trudeau charter claims to give these rights from the state, a system generally known as the Napoleonic Code, under which the only rights a citizen enjoys are those dispensed by the state. But what the state gives, the state can take away! Thus, such a ‘right’ is little more than a ‘license,’ held at the state’s pleasure, rather than an inalienable fundamental, non-revocable human right.

         Furthermore, the Charter undermines the fundamental right of Equality before the Law. Its Section 15(2) says, in effect, all are equal before the law, but some are more equal, than others! By institutionalizing special ‘affirmative action’ status and ‘rights’ for certain minority groups, the Charter thereby relegates all other Canadians to second-class status and negates the great principle of Equality before the Law. That’s not acceptable in a free and responsible Common-Law country.

         Nearly all the serious and divisive problems we face in Canada today, have their roots in the Trudeau Charter and its break with our ancient Common Law. For instance:

• Today, we’re deporting people who have been exemplary Canadian citizens for half a century, without allowing them any defence or due process of law.

• Today, we’re hauling Canadian citizens before commissions and tribunals, to be found guilty and sentenced for all manner of ‘thought’ crimes stemming from the Charter but nowhere to be found in the Common Law of our land; and those facing these tribunals are not accorded the legal rights and protections due any citizen in a duly constituted Common-Law court.

• The federal Official Languages law, that in practise almost completely eliminates the English- speaking Canadian from the upper echelons of the federal civil service, not only in Ottawa but across the country, is anything but a help in resolving our national unity problem. And this problem, too, stems from the Charter.

• The federal Multiculturalism law that pours tens of millions of tax-dollars into scores of diverse minority groups to help retain their cultures, values and differences, which could enrich our culture if left to a natural pace of blending, has become instead a divisive factor, adding to the difficulty of building a strong, uniquely Canadian culture based on our Common-Law foundation. Again, the Charter is part of the problem.

Our Canadian Constitution Committee was unanimous in its decision to eliminate the so-called Charter of Rights and Freedoms, which for nearly two decades has been undermining Canadian society and obstructing the full enjoyment of our heritage of Common-Law justice, freedom, and united nation-building.

A Few Notes
on English Common Law

     By Common Law is meant the Law of all the people, based upon our history, values, customs — our social mores or culture — and upon precedent, the decisions over countless generations of learned judges on every facet of our stream of history’s experience. It is, indeed, the People’s Law.

     Under our Common Law, citizens enjoy ALL rights and freedoms except those expressly proscribed by law.

     Under Common Law, the practise known as habeas corpus grants the accused the right to know what he’s charged with, to summon legal counsel and be brought to trial within a reasonable time.

     Any person accused of an offence or crime has the right to face his accuser in a duly constituted court of law comprised of his peers, to have legal counsel, to cross-examine witnesses, to call his own witnesses, and to give evidence on oath himself.

     Also, under Common Law, an accused is presumed to be innocent until proven guilty; and he must be proven guilty beyond any reasonable doubt. Where there is any doubt, then the accused gets the benefit of the doubt.

     Under Common Law, a person may not be tried twice on the same charge.

     Common Law protects the right to own and enjoy property, which may not be attached except by due process of law in a properly constituted court.

     Under our Common Law, every person is Equal before the Law, regardless of rank or estate. Even the Monarch and his Ministers are subject to the Law of the Land.

In Closing . . . a thought or two

We wish to preserve the most ancient and basic human right: the privilege of private ownership of one’s own labour, product and property, thereby sustaining the incentive to contribute to the welfare of our family and community, emphasizing the Liberty, Initiative and Talents of the Individual ....

Ever mindful that if we don’t know our rights, then we don’t have any; but if our people know their Constitution, Rights and Responsibilities, and understand and appreciate their rich heritage, then we can look forward with confidence to the enjoyment of our great Country and Future.

Copies of this Proposed Revised & Updated Constitution may be purchased from

The Canadian Constitution Committee
Box 143, Cayley, AB  T0L 0P0
e-mail: newilson (at) platinum.ca

at the following prices: