Wednesday, October 26, 2005

Booklog5

W.G. Hardy - From Sea Unto Sea, c. XXII , p.392

Mowat (Premier of Ontario), like an industrious beaver, continued to whittle away at the Dominion's powers. The villain of the piece was the Privy Council. At first it had upheld Sir John A.'s contention that by the British North America Act the provinces were restricted to local spheres of action, particularly since all "residuary powers" were reserved to the Dominion.

In a curious way, however, the defeated South took vengeance on Canada for Canadian help to northern armies during the American Civil War. After the war the Attorney General of the Confederacy, Judah P. Benjamin, a strong proponent of States' rights, went to England. A man trained under him, Lord Watson, became a privy councilor. He was the man who in judgement after judgement gave the nod to provincial rights over Dominion rights. Thanks to the Privy Council's reversing its earlier attitude, Mowat achieved for Ontario and all the provinces the power to appoint Queen's counsels, unlimited jurisdiction over penalties and punishments prescribed by the province, and the like. In 1896, in announcing Ontario's Local Option Act intra vires, Great Britain's Privy Council even declared that the general residuary powers reserved to the Dominion, in Section 91 of the British North America Act, "ought to be strictly confined to such matters as are unquestionably of Canadian interest and importance and ought not to trench upon provincial legislation with respect to any of the classes of subjects enumerated in Section 92."

In this way the Privy Council practically nullified the intent and purpose of those who framed Confederation. Instead of Dominion powers being paramount, provincial rights were exalted. The relationship between the Dominion and the provinces was made more similar to that between the U.S. federal government and the states of the Union... In modern Canada provincial rights plus economic and religio-racial sectionalism are powerful centrifugal forces which act against national unity. The first of these disintegrating influences is owed to Mowat and the Privy Council.

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