How the Fathers Made a Deal

279 pages,
ISBN: 0771060947

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Canada Made in Canada
by Michael Fitz-James

We all know that famous Robert Harris painting of the Fathers of Confederation meeting at Quebec to hammer a constitutional Canada into shape-the thing we best remember about it is those remarkable windows in triptych-like array, with John A. Macdonald standing smack dab in the middle.
The windows, with their famous rounded tops, evoke a gateway to the green Laurentian vista outside, while rows of sombre-suited men sit almost marginalized along the bottom border. In fact, writes Christopher Moore in 1867: How the Fathers Made a Deal, the real windows were quite different-those "Confederation windows", widely copied by modern suburban builders, were actually invented by Harris in 1884, two decades after the conference took place. Moreover, since the events occurred in late autumn (in the pelting rain and snow), it's also unlikely the landscape would have been exactly as illustrated.
Still, we all recognize Sir John A., and the better educated of us may spot George Brown, but-pop quiz-how many of us can name at least two other fathers in the picture? Let's face it-many of these men, even in their own day, were fast fading into obscurity. In 1865, for example, the anti-Confederation legislator Christo-pher Dunkin stood in the Canadian Parliament at Quebec City and referred to the New Brunswicker George Hatheway as a conference delegate. When D'Arcy McGee bellowed across the chamber that Hatheway wasn't even there, Dunkin contemptuously shot back: "I acknowledge I have not burdened my memory with an exact list of the thirty-three gentlemen who took part in the conference."
This telling moment, according to Moore, shouldn't really be seen as an insult. The resolutions from the pre-Confederation conferences were the work product of minor political figures, even by the standards of their own day. Whatever they came up with was later ratified by independent legislatures, most of which initially refused to buy into Confederation. It was precisely this debate and consensus-building by political workhorses which produced a constitutional scheme of such vigour, Moore argues.
The Englishmen in the Colonial Office who drafted the British North America Act basically codified the work done by the faceless delegates at the Charlottetown and Quebec conferences. When British officials tried to insert greater certainty about the role of the central government into the Act, they were slapped down by their political masters and told not to mess with the deal the colonials had hammered out, however flawed it seemed. The Act sailed through the House of Commons and Lords (and received Royal Assent) in little more than a month, even though disaffected Nova Scotians were lobbying hard to delay the bill.
So solid was the preliminary work done on that original constitution, it's been impossible to amend it ever since, it seems. Pierre Trudeau managed to convert the British Act into a Canadian one in 1982, but most other efforts at constitutional reform have failed-most spectacularly with the 1992 Charlottetown referendum.
Constitutional reform evades modern politicians, Moore argues, because the nature of parliamentary democracy has changed so radically since the mid-1800s: back then, our legislators were "loose fish", far more independent that parliamentarians of today, who are under the thumb of quasi-dictatorial party leaders.
The Nova Scotian premier, Charles Tupper, insisted on bringing his opposition leader, Adams Archibald, to the pre-Confederation conferences in Charlottetown and Quebec mostly, Moore suggests, because he needed his support when the measures required legislative approval. Today, only prime ministers and premiers are invited to constitutional conferences, attended by cadres of lawyers and bureaucrats. Perhaps there might be more progress if Preston Manning attended as a meaningful participant, Moore's analysis suggests.
I wasn't totally convinced by Moore's arguments that changing the character of parliamentary democracy could enhance constitutional reform through the possibility of building broader political consensus. Still, his argument was intriguing and well-presented in a readable and entertaining style, punctuated by lots of period detail. And along the way we're exposed to English political theorists like Edmund Burke, who had a profound impact on colonial politicians, and Walter Bagehot, who got a chance to observe his constitutional theories come to life in British North America.
Some of the best local colour comes from the diary of Mercy Coles, the daughter of a PEI delegate and ex-premier, George Coles. While she took little notice of the formal meetings, she does reveal that the Fathers of Confederation were fond of a good booze-up and loved to dance until they were wringing with sweat in the wee hours of the morning.
Moore glosses over some of the political aftermath of Confederation-particularly the provincially-oriented interpretation given the BNA Act by Privy Council decisions in the decades after 1867. He does point out that Oliver Mowat, one of Ontario's greatest premiers in late Victorian times, was a key driver in convincing the Privy Council to take an equitable, rather than strictly legal, view of constitutional interpretation. He mentions the famous series of legal cases on the federal "disallowance" power in the constitution but doesn't really talk about them in any great depth. In the opinion of many legal scholars, those cases resulted in federal constitutional authority reaching its nadir earlier in this century. That is why the federal government has to go to the Supreme Court, instead of just tossing Quebec's referendum or language legislation in the nearest trash can, which (in theory) it has the constitutional power to do. But in all fairness, the judicial treatment of the "deal" made by the fathers is probably a bit off-topic-especially in a book intended for a broader audience. Perhaps Moore will explore this in greater depth in a future work.
If this book deserves any real complaint, it probably should be laid at the publisher's door, rather than the author's. Moore spends a couple of paragraphs describing Ned Whelan, a leading PEI delegate and an ugly, thick-necked man. He tells us there were photo sessions at Charlottetown and probably Quebec, too. So, why can't we see any of these pictures? Contemporary photos would have added a lot here and done much to bring the Fathers of Confederation out of their undeserved obscurity. Moore even describes the famous Harris painting in detail, but it's not shown anywhere in this utterly unillustrated book. (It is on the dust-jacket, but it's been chopped into pieces by some clever designer making a point.)
While I'm not suggesting we all carry around pictures of the Fathers of Confederation in our wallets (as we all do with Sir John A.), it would have been nice for Canada's leading publisher to stump up a few sawbucks so we could see who else was at Charlottetown and Quebec in 1864.

Michael Fitz-James is editor of Canadian Lawyer magazine.


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