Shipwrecked

OBJECTIVE
Students will understand how constitutions can be a tool to help societies choose leaders and spread power around.

LAW 30 INDICATORS
FL1(c) - Predict the consequences of a society without laws.

FL1(d) - Explain why the rule of law is a fundamental principle in democratic societies and relate it to examples in Canadian society.

FL1(g) - Investigate elements that influence Canada’s legal system such as:
• the Constitution Act (Constitution) (1982) including The Charter of Rights and Freedoms

TEACHER’S BACKGROUND INFORMATION: THE BRITISH NORTH AMERICA ACT AND FOUNDING THE CANADIAN STATE
A focus of this lesson is the lack of democratic rights held by the survivors of the Batavia wreck. The Batavia wreck turned into bloody mutiny, in part, because of a lack of formal process. The senior leadership sailed off in search of water, leaving the castaways at the behest of a maniac who manipulated the few rules in place for his own ends.

To look at the broader societal lessons that come from this shipwreck with a Canadian context in mind, we can think about democratic rights in Canada and our decentralised government. These features of Canadian democracy are products of the evolutionary nature of Canada’s formation. The United Kingdom did not “sail off” and leave Canada as a fully-independent nation, nor was there a revolution that demanded the creation of an entirely new set of rules for governing the fledgling nation. Instead, when the Canadian state was founded, it was built upon a series of existing rules and norms, structured in a way so that new rules and norms could be created locally, in an evolutionary manner.

Canada’s constitution was formed when the government of the United Kingdom proclaimed the British North America Act (BNA). The BNA was later renamed The Constitution Act. The BNA united present-day Ontario, Quebec, Nova Scotia, and New Brunswick into one legislative union, setting the path for Canada to be a self-governing nation. To those ends, the BNA created many foundational rules for how Canada would be governed, with an understanding that our form of government—the Westminster Parliamentary model—was Canada’s inheritance from the United Kingdom.

Today, The Constitution Act, in conjunction with The Charter of Rights and Freedoms, are the centerpieces of Canada’s constitution. It is better to characterise these documents “centerpieces” of Canada’s constitution because Canada has other statutes of a constitutional nature, such as the Supreme Court Act alongside various Imperial statutes that still have effect.

One thing the BNA spelled out was the legislatures of our federal government, and the legislatures of the four provincial governments.

Canada as a whole would have “One Parliament... consisting of the Queen, an Upper House styled the Senate, and the House of Commons.” Parliament would follow the United Kingdom’s Westminster style of governance, a convention of legislating that dates back to and has been developing since the 13th century. Broadly, this set-up meant that the House of Commons would introduce legislation, the Senate would review legislation, and the Queen or her representative in Canada would sign-off on legislation. A law cannot be put into effect without fulfilling these three steps.

As a point of detail, legislation can also be introduced by the Senate though in practice it rarely is. The Queen or King does not introduce or create legislation, and their right to refuse to sign legislation largely is an obsolete constitutional formality. The last time a British monarch refused to sign a law in the United Kingdom was in 1707. Canada’s Governor General has never refused to sign off on parliamentary legislation. This set-up of the Crown, the Senate, and the House of Commons as independent elements of authority meant that power in Canada’s federal government would not reside in one single person or institution.

Further spreading out power, the BNA also set out what kinds of laws the federal government could make, and what kinds of laws provincial governments could make. In other words, it set out the jurisdiction of the federal and provincial governments. Add to that, the BNA prescribed courts and a process to choose judges. Courts can resolve disputes about laws, and be a tool to keep parliament in check.

Of course, a parliament or legislature is just a shell. As discussed in the previous lesson, the types of people we place in institutions matter. It also matters how these people are chosen. To those ends, the BNA prescribed that the Senate would be appointed by the Queen or her representative.

Senators could keep their position for life. Senators must meet various requirements: be at least 30 years of age, hold property amounting to $4,000—about $75,000 today—and be residents in the province where they are appointed. In practice, senators are selected by the Prime Minister, then appointed by the Governor General upon the Prime Minster’s advice.

Members of the House of Commons were to be elected from districts across the country. Because there was no law governing elections for the newly unified country as a whole, the BNA said that there would be a “continuance of existing election laws until Parliament of Canada otherwise provides.” This meant that Canada’s first House of Commons—people who formally propose our laws—would be chosen by Canadians, using each province’s existing elections laws.

At the time, each province had unique election laws that had developed in ebbs and flows over hundreds of years. Generally, at the time of Confederation, adult males in every province had the right to vote. However, not all adult males had this right.

For example, to vote you may need to earn a minimum income. Or you may need to own property. If you worked for the government, chances are you could not vote. And if you were not a British subject, you could not vote. The exact rules depended upon which province you lived in.

This collection of rules and exceptions left most working people, most women, and almost all Indigenous people without the right to vote for the House of Commons of the newly-created country.

In short, the provinces’ election laws at the time of Canada’s founding were inconsistent, unfair, and openly discriminatory. This should give us all reason for deep reflection. Universal adult voting rights were not part of Canada’s foundational documents. Voting rights advanced only through determined advocacy of fair-minded
citizens and lawmakers.

On the other hand, at least there was a somewhat democratic process in place, with the idea that it would be built upon. The House of Commons was to be chosen by votes. Importantly, members elected to the House of Commons could not stay in power forever. The BNA put into law that no House of Commons could sit for longer than five years.

Once its members were elected, they could get to work creating laws to govern the new nation. This work included creating new, more fair election laws. The rights we have today, especially the constitutional rights under the Charter of Rights and Freedoms, are the children of this pathway.

Canada’s foundational documents did not create a perfect democracy. Nor did these documents grant a universal right to vote. Rather, they reflected the United Kingdom’s largely evolutionary process of democracy and government. Many of the basic rules and forms of governance were a continuation of a system of rule that had been in the works for centuries. This system allowed for the continued evolution of our governance, all while keeping checks and balances to ensure that the country would not fall into the hands of a dictator.

Indigenous Self-Government
The centrality of the people who first lived on the land we now call Canada was never taken into account with the creation of the British North America Act. Rather, Indigenous people were marginalised. The consequences of this historical shame are still playing out today. The BNA merely spelled out that the federal government had jurisdictional responsibility for “Indians, and lands reserved for the Indians.” Notwithstanding the fact that Canada has a legal obligation to fulfill promises made in the Treaties, as they were agreements between sovereign nations, this section of the BNA led the federal government to pursue a top-down model of governance of Indigenous people. This top-down governance is largely characterised by the creation of the Indian Act in 1876.

Under the Indian Act, First Nations can create many of their own laws—or even negotiate self-governing agreements with the Government of Canada—but these laws are often arbitrarily overseen by the federal government. But this is changing.

Today, much positive news is now taking shape. Recent developments have seen various First Nations expand their jurisdictional authority. Recognition of the Indigenous right to self-government has further spread out power in Canada. For example, in 2016 the Akwesasne band council—whose territory is in modern-day Ontario and Quebec—introduced its own legal system, covering such areas as tobacco regulations, public sanitation, elections and wildlife conservation. Their laws reflect traditional Indigenous worldviews, while incorporating ideas of western justice systems.

Meanwhile, the Whitecap Dakota First Nation has recently made a self-governing agreement with the Government of Canada, creating particular areas of jurisdiction to be outlined and administered by the nation. Also closer to home, in 2020 the Cowessess First Nation created its own child welfare legislation. An Act respecting First Nations, Inuit and Métis children recognised the right for Indigenous people to control their own child welfare legislation, created in response to calls to action on child welfare made in the Final Report of the Truth and Reconciliation Commission. It is understood that Indigenous peoples should control their own child welfare systems, and is another important step towards further Indigenous sovereignty and self-government.

PROCEDURE
1. Using Teacher’s Background Information, lead class discussion on how power in Canada is not centralised but rather spread out through different institutions and jurisdictions. Why would keeping absolute power out of central hands be a good thing? Are there drawbacks to decentralised systems of rule?

2. As a class, read “The Dead End of Dictatorship: The Batavia”.
KEY QUESTIONS
• There was a great deal of wealth disparity between people on board the Batavia. Why would such extreme inequality make it easier to recruit people to overthrow the ship’s leadership?
• Does Cornelisz’ libertine doctrine tell us anything about choosing decent humans for leadership roles?

3. Have students consider Discuss questions, either individually or in small groups.

4. As a breakaway activity to further build on the ideas in this lesson, teachers may form students into groups to analyse the following issues discussed in The PLEA newsletter, and report their central ideas to the class.
• The Mind of Machiavelli provides deeper understandings of historical roots of spreading power throughout several institutions.
• Democracy and the Rule of Law provides deeper understandings of how power is spread around in Canada’s system of government.

FURTHER EXPLORATION
5. For deeper understandings of the evolution of the right to vote in Canada, check out Elections Canada’s A History of the Vote in Canada.

6. For an in-depth account of the wreck of the Batavia, check out Batavia’s Graveyard by Mike Dash. Find it at your public library.