1867 (19 page)

There were, nevertheless, those crushing federal powers of reservation and disallowance in Mowat’s own resolutions, which transferred London’s Imperial authority to Ottawa and expressed the yearning of many delegates for a single, clear focus of constitutional authority in the new nation. They allowed Ottawa to delay or simply to nullify any piece of provincial legislation whenever it chose. Reservation and disallowance seemed to give the federal government a sledgehammer against the provinces.

Mowat did not confront disallowance and reservation directly at the conference. He may, however, have schemed to undermine them in the drafting of them. John A. Macdonald said of his own constitutional drafting at Quebec, “I must do it all alone, as there is not one person connected with the government who has the slightest idea of the nature of the work.” But Mowat was an expert in administrative law, abundantly qualified for legal drafting, and a friend described him as the delegate chiefly responsible for putting the Quebec decisions “into constitutional and legal shape.” At least part of what Macdonald had to do himself, perhaps, was wield a restraining hand upon Mowat’s drafts.
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With Macdonald looking over his shoulder, if not actually holding the pen, the final draft of Mowat’s resolution on the division of powers was something he described late in his life “only as the best practicable in view of the different interests and sentiments of the members of the conference and those they represented.” His first version, he claimed, had been much more explicit about the equality of the federal and provincial governments. But changing some words did not necessarily mean yielding on the principle. For Creighton was right: Mowat was cunning. He was a skilled and very successful lawyer, who almost certainly considered himself a better lawyer than John A. Macdonald. If the conference was reluctant to oppose directly the idea of a supreme national government, Mowat could try to build in restraining principles that he drew from his legal specialty, the law of chancery.
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The jurisdiction of the common-law courts and the jurisdiction of the chancery court were separate territories of English and Canadian law until they were merged late in the nineteenth century. (As premier and attorney-general of Ontario, Oliver Mowat supervised their merger in his province.) Common-law judgments were bound by the letter of the law and by strict judicial precedent. The chancery court, on the other hand, left scope to consider natural justice and to apply “equitable principles,” if strict application of the
black-letter law would lead to an injustice. It was the subtle challenges of working out and applying these equitable principles that made chancery procedures so slow, so intellectually satisfying, and so lucrative for practitioners like Mowat. When he was a judge, one of Mowat’s critics called him an “equity fanatic,” always ready to overthrow a common-law rule or a legislative statute on some principle of natural justice. Today, he might be called a judicial activist.
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From his successes in chancery, Mowat understood how principles of natural justice could modify the constitution the delegates were drafting. He was well placed to calculate that, in passing their resolutions, the Quebec delegates were embedding in them equitable principles strong enough to challenge the rule of disallowance. The black letter of the disallowance clause, he could have calculated, might one day be exploded by the deeper principles of responsible government.

During the Quebec conference’s discussions of provincial powers, Nova Scotian reformer Jonathan McCully declared that the provinces must be “miniature responsible governments.” Seizing on this phrase, Donald Creighton emphasized the word “miniature,” as if McCully had wanted to underline the minor and dependent status of the provinces. But the part of McCully’s phrase that must have echoed around the conference table was “responsible government.” In the political context of the 1860s, responsible government – rule by a government that answered to a popularly elected legislature – was the fundamental shield of the rights of British North Americans. It was a sacred thing.
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Creighton was ill-placed to ponder what “responsible government” meant to the delegates. The defining moment of his historical career had come when he grew bored with the colony-to-nation history of Canada that limped from Robert “Responsible-Government” Baldwin through a tedious series of constitutional abstractions towards the national independence of Canada. Creighton brilliantly shifted the emphasis away from reform-minded advocates of colonial
self-determination. He directed attention to the tory entrepreneurs and politicians who transformed the commercial empire of the St. Lawrence into the continent-spanning Dominion of Canada. Reform obsessions had been sidelined in the 1860s, Creighton argued. In confederation, he saw the strategic calculation and nation-building vision of John A. Macdonald. Creighton had no more patience for reform soliloquies on responsible government than for reform arguments that the reason to appoint senators was not to make them dignified and aristocratic (as conservatives suggested), but to make sure the Senate was toothless.

But even the tory nation-builders stood squarely on reform foundations. By the 1860s, the political culture of the colonies made it almost impossible to justify outside interference with a responsible government. In law, the Colonial Office’s authority over British North America was absolute. The achievement of responsible government in the 1840s and 1850s, however, had made it unacceptable for London to interfere arbitrarily with the internal affairs of the colonies in any but rare and extreme cases. When the British cabinet overruled Prince Edward Island’s attempt to legislate an end to landlordism, Edward Whelan had called London’s interference “degrading and humiliating” and “a species of despotism that strikes at the root of one of our most valued privileges – that of self-government.” Such things would never happen in Canada, Nova Scotia, or New Brunswick, Whelan said bitterly.
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Indeed, governments throughout British North America had largely defanged London’s ability to control local politics. In the debate on confederation, one veteran politician said London had not disallowed a Canadian law in twenty-five years. When a colleague cited one lone example, he retorted, “in that case we got our own way in effect directly afterwards.” Reformer or tory, no British North American politicians were willing to have their legislatures dictated to by London on local matters where local voters insisted
they
must be heard. It was being answerable to their own electorates
that enabled confederation-era politicians to delegitimize interference from London, even as they proclaimed themselves loyal subjects of the Queen.
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If there was a Machiavellian brilliance in Oliver Mowat’s work at Quebec, it lay in perceiving that what had reduced London’s Imperial power to ceremonial trappings (of the sort so bitterly resented by New Brunswick’s Arthur Gordon) would just as effectively undermine the powers Ottawa might one day claim to find in the Quebec resolutions. If the provinces were responsible governments answerable to their own electorates, Ottawa would find itself unable to interfere with them in their allocated spheres, just as London already had.

The power of disallowance was plainly there in the Quebec resolutions. But if Ottawa tried to disallow what a provincial government had enacted, it would be interfering in the action of a government responsible to its own local electorate. By attempting to negate the will of the voters, Ottawa would instantly become the old Family Compact, the autocratic appointed governor, the interfering Colonial Office of the bad old days. It would be wrong in politics, and it would be contrary to natural justice.

It may have been Mowat’s guess, as he and Macdonald drafted division-of-powers resolutions for the conference, that the crucial item in the deliberations, then, was the unequivocal agreement that the provinces, miniature or not, were responsible governments. Though George Brown, who should have been a reliable supporter of Ontario’s determination to control its own affairs, had said in his newspaper that “a responsible ministry in each province would certainly not be the cheapest system which could be adopted,” the provinces’ status as responsible governments was clearly understood at Quebec. In fact, the principle was confirmed in the resolutions that John A. Macdonald had himself introduced.
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In the battle of the draftsmen in the Canadian delegation at Quebec, John A. Macdonald put his faith in disallowance and other federal powers he had had written into the resolutions. He believed that, armed with them, “the central power must win in the long run.
My own opinion is that the general government or parliament should pay no more regard to the status or position of the local governments” than they would to municipal corporations. Mowat may have reasoned, however, that responsible governments were sacred in mid-nineteenth-century Canada, and that the principles of natural justice to which he had devoted his legal career would secure the rights of the provinces’ responsible governments against Macdonald’s black-letter rules of disallowance.
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By the late stages of the Quebec conference, Macdonald may have been growing aware of Mowat as a threat, for he paid him the compliment of getting rid of him. One of Canada West’s three chancery judges died in Toronto on the very day that Mowat was introducing at Quebec his crucial resolutions on the respective powers of the federal and provincial governments. Macdonald was the attorney-general for Canada West and, to the chagrin of several conservative allies who were angling for the appointment, he offered it to his Grit rival Mowat.

This rare offer – there were only three seats on the chancery bench in Canada West, all life appointments – was irresistible to a dedicated counsel like Mowat, particularly considering the minor role politics seemed to offer him. He accepted the judicial appointment. As a judge, he could not participate in the debates that followed the conference, and for years he offered no views about the terms of confederation. As a result, the reform-based, provincial-rights interpretation he would have been uniquely able to present was almost entirely unspoken in English Canada. As the confederation battles were fought, as the Dominion of Canada came into being, and as John A. Macdonald and his view of confederation came to dominate national politics, Mowat would spend eight quiet years as a judge in Toronto.

In October 1872, Mowat would leave the bench in spectacular fashion, shedding his chancery robes to assume the premiership of Ontario. Prime Minister Macdonald was by then making frequent and enthusiastic use of the disallowance powers granted to the
federal government in the British North America Act. Mowat almost at once confronted him. The conflict that had been buried in the backrooms of the Quebec conference became one of the great constitutional struggles of Canadian history.

The judicial war Mowat and Macdonald would fight between 1878 and the 1890s involved a long series of cases about provincial authority and the right of Ottawa to override provincial law. In 1880, John Wellington Gwynne of the new Supreme Court of Canada gave Macdonald just the verdict the prime minister wanted. “The Dominion of Canada is constituted a quasi-Imperial power,” he ruled “…  while the provincial governments are, as it were, carved out of, and subordinated to, the Dominion.… Nothing can be plainer … than that the several provinces are subordinate to the Dominion government.”
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Mowat would have none of this. “I claim for the provinces the largest power which they can be given,” he told the Ontario legislature in 1882. “It is the spirit of the B.N.A. Act and it is the spirit under which confederation was agreed to. If there was one point which all parties agreed upon, it was that all local powers should be left to the provinces and that all powers previously possessed by the local legislatures should be continued unless expressly repealed by the B.N.A. act.… The provinces are not in any accurate sense subordinate to the Parliament of Canada; each body is independent and supreme within the limits of its own jurisdiction.”
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Defending Ontario against Ottawa’s interference made good politics in the late nineteenth century. Indeed, it revived the crusading fervour of the old Ontario reform tradition. The lawyer and journalist David Mills, who would one day succeed Mowat as federal minister of justice under Wilfrid Laurier, denounced Macdonald’s use of the power of disallowance as “war upon responsible government.” Macdonald’s cabinet was a “Star Chamber,” he wrote, and it was attempting to impose an autocratic and tyrannical power upon the free people of Ontario. Macdonald himself was a new King James
II
– significantly, James was the monarch deposed in the
Glorious Revolution of 1688, when the triumph of Parliament over autocratic monarchy was confirmed in England.
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John A. Macdonald’s attempts to use federal power simply strengthened Mowat’s hold on Ontario. Since every quarrel with Ottawa increased his popularity at home, Mowat did not flinch from rhetoric as inflamed as Mills’s. “Confederation was well worth maintaining if the constitution was faithfully administered,” he told the Ontario legislature in 1882. “But if [the provinces’] power of passing laws within their own legitimate sphere was to be subject to the whim of a minister or ministers at Ottawa, … then it was not worth maintaining.”
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Mowat did not need to pursue this separatist threat seriously. He had one more constitutional court to which he could appeal. In the 1880s (until 1950, in fact), Supreme Court of Canada judgments could be appealed to an Imperial tribunal, the Judicial Committee of the Privy Council (which sometimes included judges from Canada and other Commonwealth nations, but which sat in London). At the Privy Council, Mowat won a string of resounding victories that killed the federal power of disallowance and permanently established the provinces as powerful partners in confederation. “The object of the [British North America] act was neither to weld the provinces into one, nor to subordinate provincial governments to a central authority,” said the Privy Council in 1892. At last, Mowat had someone reading the provincial-powers clauses of the British North America Act the way he thought he had drafted them in 1864. “In so far as regards those matters which by section 92 are specially reserved for provincial legislation, the legislation of each province continues to be free from the control of the Dominion, and as supreme as it was before the passing of the act.”
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