The constitutional history of Canada begins with the 1763 Treaty of Paris, in which France ceded most of New France to Great Britain. Canada was the colony along the St Lawrence River, part of present-day Ontario and Quebec. Its government underwent many structural changes over the following century. In 1867 Canada became the name of the new federal Dominion extending ultimately from the Atlantic to the Pacific and the Arctic coasts. Canada obtained legislative autonomy from the United Kingdom in 1931, and had its constitution (including a new rights charter) patriated in 1982. Canada's constitution includes the amalgam of constitutional law spanning this history.
Treaty of Paris (1763)
On February 10, 1763, France ceded most of New France to Great Britain. The 1763 Treaty of Paris confirmed the cession of Canada, including all its dependencies, Acadia (Nova Scotia) and Cape Breton Island to Great Britain. A year before, France had secretly signed a treaty ceding Louisiana to Spain to avoid losing it to the British.
At the time of the signing, the French colony of Canada was already under the control of the British army since the capitulation of the government of New France in 1760. (See the Articles of Capitulation of Montreal.)
Royal proclamation (1763)
The policy of Great Britain regarding its newly acquired colonies of America was revealed in a Royal Proclamation, issued on October 7, 1763. The proclamation renamed Canada "The Province of Quebec", redefined its borders and established a British-appointed colonial government. Although not an act of Parliament, the proclamation expressed the will of the British Crown to govern its new possessions. The proclamation was thus considered constitution of Quebec until the passing of the Quebec Act 1774 (14 Geo. 3. c. 83), by which the colony was granted a legislature. The new governor of the colony was given "the power and direction to summon and call a general assembly of the people's representatives" when the "state and circumstances of the said Colonies will admit thereof".
The governor was also given the mandate to "make, constitute, and ordain Laws, Statutes, and Ordinances for the Public Peace, Welfare, and good Government of our said Colonies, and of the People and Inhabitants thereof" with the consent of the British-appointed councils and representatives of the people. In the meantime, all British subjects in the colony were guaranteed of the protection of the law of England, and the governor was given the power to erect courts of judicature and public justice to hear all causes, civil or public.
The royal proclamation contained elements that conflicted with the Articles of Capitulation of Montreal, which granted Canadians the privilege to maintain their civil laws and practise their religion. The application of British laws such as the penal Laws caused numerous administrative problems and legal irregularities. The requirements of the Test Act also effectively excluded Catholics from administrative positions in the British Empire.
When James Murray was commissioned as captain general and governor in chief of the Province of Quebec, a four-year military rule ended, and the civil administration of the colony began. Judging the circumstances to be inappropriate to the establishment of British institutions in the colony, Murray was of the opinion that it would be more practical to keep the current civil institutions. He believed that, over time, the Canadians would recognize the superiority of British civilization and willingly adopt its language, its religion, and its customs. He officially recommended to retain French civil law and to dispense the Canadians from taking the Oath of Supremacy. Nevertheless, Murray followed his instructions and British institutions began to be established. On September 17, 1764, the courts of the King's Bench and Common Pleas were constituted.
Tensions quickly developed between the British merchants or old subjects, newly established in the colony, and Governor Murray. They were very dissatisfied with the state of the country and demanded that British institutions be created immediately. They demanded that common law be enforced to protect their business interests and that a house of assembly be created for English-speaking Protestants alone. Murray did not think very highly of these tradesmen. In a letter to the British Lords of Trade, he referred to them as "licentious fanatics" who would not be satisfied but by "the expulsion of the Canadians".
The conciliatory approach of Murray in dealing with the demands of the Canadians was not well received by the merchants. In May 1764, they petitioned the king for Murray's removal, accusing him of betraying the interests of Great Britain by his defence of the Canadian people's interests. The merchants succeeded in having him recalled to London. He was vindicated, but did not return to the Province of Quebec. In 1768, he was replaced by Sir Guy Carleton, who would contribute to the drafting of the Quebec Act 1774.
Murray called in the representatives of the people in 1765; however, his attempt to constitute a representative assembly failed, as, according to historian Francois-Xavier Garneau, the Canadians were unwilling to renounce their Catholic faith and take the test oath required to hold office.
Restoration movement (1764–1774)
On October 29, 1764, 94 Canadian subjects submitted a petition demanding that the orders of the king be available in French and that they be allowed to participate in the government.
In December 1773, Canadian landlords submitted a petition and a memorandum in which they asked:
That the ancient laws, privileges, and customs be restored in full That the province be extended to its former boundaries That the law of Britain be applied to all subjects without distinction
They expressed their opinion that the time was not right for a house of assembly because the colony could not afford it and suggested that a larger council, composed of both new and old subjects, would be a better choice.
In May 1774 the British merchants trading in Quebec responded by submitting their case to the king.
Reform movement (1765–1791)
As early as 1765, British merchants established in Quebec City addressed a petition to the king to ask for "the establishment of a house of representatives in this province as in all the other provinces" of the continent. Indeed, all the other colonies of British America had parliamentary institutions, even Nova Scotia, which obtained its parliament in 1758.
The movement for reform did not receive any support from the Canadians originally.
Quebec Act (1774)
The Quebec Act granted many of the requests of the Canadians. Enacted on June 13, 1774, the act changed the following:
The boundaries of the Province of Quebec were greatly expanded to the west and south. The territory now covered the whole of the Great Lakes Basin. The free practice of the Catholic faith was confirmed. The Roman Catholic Church was officially recognized and permitted to operate under British sovereignty. The Canadians were dispensed of the test oath, which was replaced by an oath to George III that had no reference to Protestantism. This made it possible for Canadians to hold positions in the colonial administration. French civil law was fully restored and British criminal law was established. The seigneurial method of land tenancy was thus maintained. A British criminal code was established.
No assembly of representatives was created, which allowed the governor to keep ruling under the advice of his counsellors.
The British merchants of Quebec were not pleased by this new act, which ignored their most important demands. They continued to campaign to abolish the current civil code and establish a house of assembly excluding Catholics and French-speakers.
The Quebec Act was also very negatively received in the British colonies to the south. (See the Intolerable Acts.) This act was in force in the Province of Quebec when the American Revolutionary War broke out in April 1775.
Letters to the inhabitants of the Province of Quebec (1774-1775)
During the revolution, the Continental Congress attempted to rally the Canadian people to its cause. The delegates wrote three letters (Letters to the inhabitants of Canada) inviting them to join in the revolution. The letters circulated in Canada, mostly in the cities of Montreal and Quebec. The first letter was written on October 26, 1774, and signed by the president of the congress, Henry Middleton. It was translated into French by Fleury Mesplet, who printed it in Philadelphia and distributed the copies himself in Montreal.
The letter pleaded the cause of democratic government, the separation of powers, taxation power, habeas corpus, trial by jury, and freedom of the press.
The second letter was written on May 25, 1775. Shorter, it urged the inhabitants of Canada not to side against the revolutionary forces. (The congress was aware that the British colonial government had already asked the Canadians to resist the call of the revolutionaries.)
On May 22, 1775, Bishop of Quebec Jean-Olivier Briand sent out a mandement asking the Canadians to close their ears to the call of the "rebels" and defend their country and their king against the invasion.
Although both the British and the revolutionaries succeeded at recruiting Canadian men for militia, the majority of the people chose not to get involved in the conflict.
In 1778, Frederick Haldimand became governor in replacement of Guy Carleton. (He served up until 1786, when Guy Carleton (now Lord Dorchester) returned as governor.)
Resumption of the reform movement (1784) Soon after the war, which ended with the signing of the Treaty of Paris in 1783, the constitutional question resurfaced.
In July 1784, Pierre du Calvet, a rich French merchant established in Montreal, published a pamphlet entitled Appel à la justice de l'État (Call to the Justice of the State) in London. Printed in French, the document is the first plea in favour of a constitutional reform in Canada. Du Calvet, imprisoned at the same time and for the same reasons as Fleury Mesplet and Valentine Jautard, both suspected of sympathizing and collaborating with the American revolutionaries during the war, undertook to have the injustice committed towards him be publicly known by publishing The Case of Peter du Calvet and, a few months later, his Appel à la justice de l'État.
On November 24, 1784, two petition for a house of assembly, one signed by 1436 "New Subjects" (Canadians) and another signed by 855 "Old Subjects" (British), were sent to the king of Great Britain. The first petition contained 14 demands. "A Plan for a House of Assembly" was also sketched in the same month of November. In December, "An Address to His Majesty in opposition to the House of Assembly and a list of Objections" were printed by the press of Fleury Mesplet in Montreal. The main objection to the house of assembly was that the colony was not, according to its signatories, in a position to be taxed.
At the time the November 24 petition was submitted to the king, numerous United Empire Loyalists were already seeking refuge in Quebec and Nova Scotia. In Quebec, the newly arrived settlers contributed to increase the number of people voicing for a rapid constitutional reform. In Nova Scotia, the immigrants demanded a separate colony.
Parliamentary constitution project (1789)
In 1786, the British government appointed Guy Carleton, as "governor-in-chief" and also governor of Quebec, New Brunswick, Nova Scotia, and St. John's Island (present-day Prince Edward Island). Carleton, now Lord Dorchester, had been British commander in Canada and governor of Quebec during the American Revolutionary War. When he returned as governor, he was already informed that the arrival of the Loyalists would require changes.