Author Blog

  • Canada’s Constitutional Legacy: ‘Notwithstanding’ its framers?

    Written by guest blogger, Ben Gilding.

    CHR Latest Cover Image

    It is timely, even more so than I could have possibly intended, that my article emphasising the role of the British Colonial Office in defining the features of Canadian Confederation should be published in the Canadian Historical Review at a time when the constitution—albeit a newer section of it—is once more making headlines. I am, of course, referring to Ontario Premier Doug Ford’s decision to invoke the ‘notwithstanding’ clause in order to push through his reform of Toronto’s municipal elections. The Ontario Superior Court ruled that Ford’s bill violated freedom of expression under Canada’s Charter of Rights and Freedoms, which was entrenched in the constitution during its repatriation in 1982. To combat the Court’s ruling, Ford invoked the ‘notwithstanding’ clause, which allows governments (provincial or federal) to temporarily override rights and freedoms outlined in sections 2 and 7-15 of the Charter. These include freedoms of religion, association, and expression, among others. Since then, it has been revealed that the new Premier-designate of Québec, François Legault is threatening to make use of the same clause to ban the wearing of religious symbols by provincial civil servants, leading the Premier of B.C. to remark on the appearance of a ‘domino effect’ on the use of the controversial clause.[1]

    Constitutional debates pitching courts against politicians are, of course, nothing new in Canadian history. This is not to say that the current case involving Ontario’s use of the ‘notwithstanding’ clause is in any way justified by historical constitutional jurisprudence. Rather, it is simply to point out that the courts have decisively intervened at various stages in Canadian history through the interpretation of key clauses of the constitution.[2] This, of course, gave rise to the disputes between originalist and ‘living tree’ interpretations of the Canadian constitution which have oftentimes been falsely perceived as dichotomous. Originalists, in short, attempt to uncover the original meaning of the constitution through the intentions of its framers. The advocates of the ‘living tree’ doctrine, on the other hand, argue that the constitution ought to be seen as an organic structure that is adaptable over time. That these are not mutually exclusive attributes of a written constitution with a formula for amendment is not only self-evident but also admitted by Lord Sankey, the founder of the ‘living tree’ metaphor. In 1931, he declared that, ‘[i]nasmuch as the [British North America] Act embodies a compromise under which the original Provinces agreed to federate…the process of interpretation as the years go on ought not to be allowed to dim or whittle down the provisions of the original contract upon which the federation was founded.’[3]

    Ontario’s recent controversial use of the ‘notwithstanding’ clause has prompted a response from several of the framers of that provision (former Prime Minister Jean Chrétien, former Saskatchewan premier Roy Romanow, and former Chief Justice of Ontario, Roy McMurtry). These three, famously involved in the so-called ‘kitchen accord’, argued that the ‘notwithstanding’ clause “was designed to be invoked in exceptional situations, and only as a last resort after careful consideration.”[4] The assumption behind the release of this joint statement, and much of the commentary in the press and on social media surrounding this controversy suggests that the intentions of the framers matter in constitutional jurisprudence. Not that they ought to rule supreme and fossilize archaic notions into the structure of what would thereby become an increasingly obsolete document; but that they ought to be considered and accounted for in a rational debate concerning the principles that define the national character and the institutions of state.

    Upon this assumption—that the intentions of the framers matter in constitutional jurisprudence—my article examines the ideas and motivations of what I term ‘the silent framers’ of Canada’s original constitution. These were the political and permanent staff of the British Colonial Office who, alongside the already-familiar “Fathers of Confederation,” drew up the provisions of the British North America Act that continue to shape politics today. Notwithstanding the Confederation debates, the recent furore surrounding Ontario’s use of the Charter’s overriding clause suggests that Canada’s constitutional legacy is still far from settled, 151 years after its inception.

    [1] Richard Zussman, “B.C. premier surprised by ‘domino effect’ of use of notwithstanding clause.” Global News, 5 October 2018, https://globalnews.ca/news/4518008/bc-premier-horgan-notwithstanding-clause/

    [2] See John T. Saywell, The Lawmakers: Judicial Power and the Shaping of Canadian Federalism (Toronto: University of Toronto Press, 2002).

    [3] Privy Council Appeal No. 38 of 1931, p. 7. <http://www.bailii.org/uk/cases/UKPC/1931/1931_93.pdf>

    [4] “Chretien, Romanow and McMurtry attack Ford’s use of the notwithstanding clause.” Maclean’s, 14 September 2018, https://www.macleans.ca/politics/ottawa/chretien-romanow-and-mcmurtry-attack-fords-use-of-the-notwithstanding-clause/

    Ben Gilding is a PhD candidate at Christ's College, Cambridge. His research currently focuses on domestic responses to imperial crises in the British Empire in the “age of revolutions” (circa 1765–95). His article "The Silent Framers of British North American Union: The Colonial Office and Canadian Confederation, 1851–67 " is free to read in the latest issue of the Canadian Historical Review. Read it here!

  • Why The Canadian Financial System Did Well During The 2008 Credit Crisis

    Written by guest blogger, Joe Martin.

    A decade ago much of the world suffered through a financial credit crisis. In North America, the United States and Canada –two countries with many similarities, not the least of which are physical location and similar legal roots based in the United Kingdom –had very different experiences. The US experienced a full-blown financial crisis, beginning in the subprime mortgage market and culminating in the failure of Lehman Bank. Many other financial institutions were bailed out or failed. North of the border, Canadian financial affairs were much calmer. Although there was an Asset Backed Commercial Paper (ABCP) problem, no financial institutions failed and the economic decline was not as severe as in the US.

    Why did the Canadian financial system perform so much better than that of the US financial system? Before answering the question it must be understood that a financial system begins with public policy. Governments set the rules in both countries. On the other side of the system are the private sector players who are governed by the rules set in the public sector.

    In order to answer the question of why Canada performed better it is necessary to go back to the late eighteenth century – NOT the late twentieth century. While the Government of Canada’s decision to block the big bank mergers in the late twentieth century was a useful decision, it was not a transformative one. Four of the five key reasons the Canadian system did better than the American system in 2008 reach back to the late eighteenth and nineteenth centuries. They are:

    1. Canada has a Hamiltonian financial system. Yes, the same Hamilton, Alexander from the Tony award-winning musical Hamilton, with limited joint stock liability and branch banking. The US has a Jacksonian system, or at least did have, which limited US banks within states – indeed in some states no bank could have a branch other than the main office.
    2. The Fathers of Confederation ensured that both banking and currency were federal responsibilities when they defined Canada’s form of federalism at the 1860s Conferences. This was in marked contrast to the US where “banking” is not mentioned in their Constitution.
    3. Canada had the good fortune of having John A. Macdonald as our first Prime Minister with his capability in “cabinet making.” While his first two Ministers of Finance did not pass the test, the third one did.
    4. Sir Francis Hincks was John A’s third and best choice for Finance Minister. Hincks not only knew finances, he knew politics and how to work with the media, and he was not from Montreal. Hincks brought in compromise on the issue of currency and had the wisdom to ensure all banks were equal. In addition, he introduced the far-sighted policy of providing for decennial Legislative reviews, which resulted in more continuity in Canada than almost all other countries, especially the United States.
    5. Our financial system more or less behaved itself from the 1870s to the 1980s, but in the 1980s misbehaved. The consequence was failure – both bank and trust company, and the appointment of the Estey Enquiry. The report of the Estey Enquiry, plus Minister Hockin’s Blue Paper, resulted in the creation of the Office of the Superintendent of Financial Institutions (OSFI).

     

    The OSFI – plus nearly two centuries of a Hamiltonian financial system in which banking was a federal responsibility from day one, the right choice for Minister of Finance in 1869, and in 1871 the foresight to provide for regular reviews of the Bank Act – led to Canada to doing much better than the United States in the 2008 financial crisis. In addition, there have been basic and fundamental differences between the way the two countries finance the housing market which were also a big factor. But those are the subject of a future blog post…

     

     

    Joe Martin is the Director of the Canadian Business and Financial History Initiative at the Rotman School of Management as well as President Emeritus of Canada’s History Society. He is the co-author of From Wall Street to Bay Street. Want to learn more? Check out the trailer for Stability and Crisis: The History of the Canadian Financial System, a new documentary from Kevin Feraday based on the book.

  • At the Avant-Garde: Queer Cities, Cinemas, and Festivals on the Prairies

    Written by guest blogger, Jonathan Petrychyn.

    If asked to guess where Canada’s oldest and longest-running queer film festival is located, most people wouldn’t think to start guessing cities on the Canadian Prairies. Most would guess Montreal, Toronto, or Vancouver. But in fact, it all started in Winnipeg in 1985 – a full two years before Montreal, three before Vancouver, six before Toronto.

    This fact comes as a surprise to many. The prairies are typically conceived as a very conservative region of the country, deeply hostile to queer people. But, as my own research and the research of other scholars has shown, there have been queer people on the prairies – and these queers have been screening, making, and distributing film for as long as their peers in bigger cities.

    In my article for the Canadian Journal of Film Studies, I tell the history of expanded cinema and performance art at Queer City Cinema, Canada’s longest-running (and, until the Toronto Queer Film Festival emerged in 2016, its only) experimental queer film festival. Located in Regina, Saskatchewan, the festival has been organized and curated by performance artist Gary Varro since 1996. Like many other queer film festivals that emerged in the 1990s, the festival initially focused on screening just film and video. But, as popular acceptance and interest in queer films, videos, and television programs grew in the mid-2000s, Canada’s queer film festivals found themselves at a crossroads. Once the only place queer cinema could be reliably screened, queer film festivals were now competing for space with television and the multiplexes. Some responded to this by reorienting their festivals as industry hubs, focused on nurturing the next generation of queer filmmakers. But Varro expanded Queer City Cinema’s curatorial mandate and made a space where queer artists could experiment and push the boundaries between film, performance, media and art.

    Queer City Cinema remains on the vanguard of queer film festival curation in Canada. In 2006, Varro brought on Deidre Logue to curate Queering Plunder, the festival’s first expanded cinema exhibition, which included Aleesa Cohene’s Ready to Cope (pictured above). In 2017, Varro curated an all-John Waters festival featuring a campy mix of new performance art, classic queer Canadian short films alongside all of Waters’s features. This year, the 22nd year of the festival, is devoted explicitly to work by QTBIPOC (queer, trans, Black, Indigenous people of colour) and is dedicated to the memories of Tina Fontaine and Colton Bushie. Queer City Cinema is the first queer film festival in the prairie region – and indeed, perhaps in Canada – to devote an entire festival’s programming exclusively on QTBIPOC filmmakers since the Calgary’s The Fire I’ve Become ended in 1996.

    Queer City Cinema – and the history of queer film festivals on the prairies that I’ve intimated in this short post –­ is living proof that scholars of queer cinema and of sexuality in Canada need to pay closer attention to the prairie region. Exciting, important, and politically necessary work is being done in the region; in many ways, the prairies are truly Canada’s new avant-garde. Those of us located in Montreal, Toronto, and Vancouver have much to learn from their organizers and activists.


    PhotoAleesa Cohene’s Ready to Cope in Queering Plunder, Dunlop Art Gallery, Regina, 2006.

    Jonathan Petrychyn is a SSHRC Doctoral Fellow and PhD Candidate in Communication & Culture at York and Ryerson Universities in Toronto. His article "Film Festivals in the White Cube: Queer City Cinema as Artistic Practice" will be free to read in the upcoming issue of the Canadian Journal of Film Studies. Sign up for the CJFS mailing list to be notified when the issue goes online.

  • Most US and Canadian veterinary medical schools support ‘tracking’

    Written by guest blogger, Elizabeth A. Stone.

    Class of 1950 stained glass window, Ontario Veterinary College

    ‘‘Abandon the unrealistic concept of the universal veterinarian who can minister to the health needs of all creatures great and small.”
    Dean William Pritchard, 19891

    Each of the three major planning initiatives undertaken by the veterinary profession in the last 30 years has included a version of this recommendation. During this time, veterinary schools have begun to embrace this perspective as shown by a survey of deans, previous deans and academic associate deans of accredited veterinary schools. Seventy-one percent of the survey participants agreed that “at our school, tracking (e.g., emphasis areas, focus areas, streaming) where students focus on a class of animals or a discipline area begins in either year one (2.6%), year two (15%), year three (35%), year four (39%) or year five (6%).”2

    Veterinary school leaders want to ensure that their students achieve entry level competencies by the time they graduate, which is a Herculean challenge even for one class of animals or discipline area and most likely impossible for “all creatures great and small”. The visionary, Dean Pritchard, recognized this conundrum in the 1970’s and worked to implement the first tracking curriculum at UC Davis. Since that time the knowledge explosion and emerging new disciplines within veterinary medicine and biomedical science as a whole have made the possibility of educating ‘the universal veterinarian’ even more remote.

    One argument against tracking has gradually lost its validity, i.e., that tracking decreases the ability of graduates ‘to change careers in the future’. Given the rapid pace of discovery, we are fooling ourselves if we think that the facts and procedures we currently teach our students, whether they track or not, will prepare them for a major career change 5-10 years from now. Instead, we can focus on helping them learn how to learn, to solve problems, and to develop their own career goals and plans to achieve those goals now and in the future.

    If as a profession we can move beyond the arguments about whether or not tracking is a good idea (since most schools are already doing it), we can make more progress figuring out how to ensure that all veterinarians, no matter what their focus, master the essential ‘veterinarian competencies”. What might these be? My starting list would include the following: Be able to 1] provide informed opinions and discuss with the general public such topics as modern food production; key welfare issues; responsible use of antibiotics; importance of translational biomedical research; 2] effectively collaborate with public health and medical professionals within their communities; 3] work in a team environment as an employee, colleague and leader; and 4] monitor and sustain one’s own self-awareness, personal health and well-being.

    What would be on your list?

    Then the next question is: how do we incorporate these and other critical learning areas into the curriculum so that all students become competent and successful veterinarians?

    1 Pritchard WR. Future directions for veterinary medicine. Durham, NC: Pew National Veterinary Education Program, Institute of Policy Sciences and Public Affairs, Duke University; 1989.

    2 Stone EA, Reimann J, Greenhill LM, Dewey CE. Milestone Educational Planning Initiatives in Veterinary Medical Education: Progress and Pitfalls. Journal of Veterinary Medical Education. 2018;45(3):388-404.

    Elizabeth A. Stone, DVM, MS, MPP, DACVS, is the previous Dean and a Professor in the Department of Clinical Studies, Ontario Veterinary College, University of Guelph, Guelph, ON N1G 2W1 Canada, and an Emeritus Professor in the College of Veterinary Medicine, North Carolina State University, Raleigh, NC 27607 USA. Her research interests include leadership development, educational innovation, and the role of veterinarians in society. Her article "Milestone Educational Planning Initiatives in Veterinary Medical Education: Progress and Pitfalls" is free to read for a limited time: http://bit.ly/jvme453k

  • Digging Down: The Deep Roots of Canada's Policy-Making Process

    Written by guest blogger, Taylor Hollander.

    It is no revelation that the union density rates in both Canada and the United States have experienced significant decreases since the 1960s. But why has the decline in the U.S. been so much sharper? The two countries share similar employers, unions, and decentralized industrial relations systems. For many years, they even had comparable union membership levels. Yet, in 2017, the percentage of unionized workers in Canada’s private sector was more than twice as high as the United States. No state in the U.S. had a greater union density rate than Alberta, the least unionized province in Canada. In light of the recent U.S. Supreme Court decision, Janus v. AFSCME, which removed mandatory dues payments in public sector unions, it is not difficult to understand why some pundits argue that the historical moment for unionism in the United States has now passed.

    To better understand this cross-national divergence in union density rates, Power, Politics, and Principles looks to the making of labour law in Canada for answers. In particular, against the backdrop of the U.S. experience, it focuses on PC 1003 of 1944, which for the first time required Canadian employers to recognize and negotiate with the representatives of their employees’ choosing. Several earlier studies have highlighted differences in the legal frameworks for industrial relations in Canada and the United States like, for example, the use of permanent replacements or “scabs.” What Power, Politics, and Principles does differently is dive into the history of the policy-making process to uncover how the topic of compulsory collective bargaining became a part of the national discourse in Canada and then became a legal reality. The main argument of the book is that, unlike in the United States, a more moderate approach to labour policy formulation in Canada made the legal protections for workers less vulnerable to conservative backlash in the long run.

    There are several reasons why I believe that Power, Politics, and Principles will appeal to a wide audience:

    1. By comparing why and how collective bargaining regimes or the legal frameworks for industrial relations were created in Canada and the United States, it goes beyond vague discussions of cultural values to gain a more tangible and precise understanding of what distinguishes the two countries. As I mention in the book, the goal is not to consecrate the Canadian experience because industrial relations in the two countries are more alike than different. But a close study of what actually happened in the policy-making process does reveal important national variances.
    2. Power, Politics, and Principles underscores the messiness of the policy-making process. Throughout the book, the different perspectives and agendas of workers, labour leaders, business executives, civil servants, and politicians are examined to try and convince readers that the making of a collective bargaining regime in Canada involved many competing personalities. Rather than straightforward or certain, it was open-ended and contingent. For example, one of the arguments I make is that an ad hoc wartime agency of three people from outside the government - a conservative, a liberal, and a socialist - played a key role in convincing politicians that it was time for a compulsory collective bargaining policy.
    3. My book adds to the historiography on Mackenzie King. As Christopher Dummitt recently outlined in Unbuttoned, scholarly works on Canada’s longest serving prime minister have for a long time offered remarkably critical, if not bewildered, interpretations of his legacy. Most historians, political scientists, and journalists seem to agree that King took a Machiavellian approach to policy-making, never committing to anything unless it served his own purposes. In contrast, I encourage readers to consider the impact of his political principles. There is no doubt that King was a consummate politician who acted opportunistically, expediently, and obliquely. At least in the area of labour policy, however, it seems clear that his political principles also influenced his actions and inactions.
    4. Organized chronologically from 1935 to 1948, Power, Politics, and Principles conveys the complexities of the policy-making process in a compelling narrative, evoking a sense of time, place, and character without sacrificing analysis or argument. By emphasizing story line, avoiding jargon, and, in places, offering what one reviewer called “historical imaginings,” readers are transported back to two of the most turbulent decades in Canada’s history when real people battled both physically and verbally over the legal rights of workers.

     

    Taylor Hollander is a Middle School History Teacher at Orchard House School in Richmond Virginia and the author of Power, Politics, and Principles.

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