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Disappointing and opinionated
on June 27, 2013
Gwyn gives his opinion of events and omits important background. I could give numerous examples but have selected only one.
He describes the Privy Council's rulings in favour of the Provinces after Confederation on constitutional matters as 'quirky'.
In fact the rulings were guided by the arguments of Edward Blake, leader of the Liberal Party after Confederation, the man who would have been our second Prime Minister, had he not resigned the leadership in favour of his lieutenant, Alexander Mackenzie.
The Privy Council was the highest court in Canadian jurisprudence for a very long time; it has now been replaced by the Supreme Court, members of which are appointed by the federal government, which of course does not want interpretations of the BNA Act which favour the Provinces.
In fact it was a Canadian lawyer - a man, who, unlike Gwyn, was Canadian born - Edward Blake, who persuaded the Council in favour of the Provinces. Below is a passage from one of his speeches to it. Blake was perhaps the greatest orator in the English language in our history. Macdonald was afraid of him. He is mentioned only once, briefly, by Gwyn.
Read it and ask yourself: should a decision influenced by such a speech be fairly described as 'quirky'?
Edward Blake to the Privy Council, 1888
"The word federal is the key which unlocks the clauses and reveals their contents. It is the glass that enables us to discern what is written. By its light the Act must be construed. What then was the general scheme of this Act ? First of all, as I suggest, it was to create a federal as distinguished from a legislative union, but a union composed of several existing and continuing entities. It was not the intention of Parliament to mutilate, confound and destroy the provinces mentioned in the preamble, and having from their mangled remains stewed in some legislative cauldron, to evoke by some legislative incantation absolutely new provinces into an absolutely new existence. It was the design, I say, by gentle and considerate terms to preserve the vital breath and continue the political existence of the old provinces. However this may be, they were being made, as has been well said, "not fractions of a unit but units of a multiple". The Dominion is the multiple and each province is a unit."
St.Catherine’s Milling and Lumber Company v. The Queen
Note: The case concerned timber licenses and whether the federal government or the province, in this case Ontario, had jurisdiction. The provinces have jurisdiction and the revenue from the licenses to this day.(I think the quote is from Oliver Mowat. Both Mowat and Blake were Liberal Premiers of Ontario).