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(Brigitte Bouvier/Brigitte Bouvier)
(Brigitte Bouvier/Brigitte Bouvier)

Neil Reynolds

Peace, order and good government, the constitutional cudgel Add to ...

Canadian mythology holds that our constitutional mandate for peace, order and good government (POGG) has made Canada a kinder, gentler place than the United States – debauched by its licentious pursuit of life, liberty and the pursuit of happiness (LLPH).

POGG has, of course, done nothing of the sort. As a matter of historical fact, it was imperial boilerplate that dated back to the 1700s – more than a century before it made its way into Canada’s constitution, the British North America Act, in 1867. Aside from Canada, this ubiquitous phrase turned up in the colonial constitutions of Australia, New Zealand, South Africa and Ireland – and of lesser British territorial domains. It is as uniquely Canadian as kippers.

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As used in Section 91 of the BNA Act, the phrase merely confirmed Queen Victoria’s right – through Parliament – to govern: “It shall be lawful for the Queen … to make laws for the peace, order and good government of Canada.” Section 91, though, did place a crucial restriction on parliamentary power: It forbade the federal government to make laws in matters of provincial jurisdiction. Oddly, and perhaps perversely, POGG has been used from the very beginning to override this important constitutional no-no.

Far from civilizing its colonies, POGG granted (as one historian put it) “the widest law-making powers appropriate to the sovereign.” In rare instances, it still does. In the 1970s, for example, Britain’s territorial commissioner in the Chagos Archipelago, a group of 60 colonial islands in the Indian Ocean, cited the authority invested in him by POGG to expel all 5,000 human inhabitants from the islands – to enable construction of a U.S. military base at Diego Garcia. The expelled Chagossians remain expelled. So much for the inherently civilizing influence of POGG.

In its Canadian manifestation, POGG has been regarded as the strategic means by which the federal government could legislate in matters of provincial jurisdiction – which all federal governments aspire to do. It was so used by Sir John A. Macdonald, who regarded the federal government as sovereign, the provincial governments as squires. It was so used by Pierre Trudeau, who shared Macdonald’s sentiments completely.

Theoretically, federal governments could pillage provincial responsibilities only when justified – as with the War Measures Act in 1914 – by national emergency. Mr. Trudeau’s controversial 1975 Anti-Inflation Act, which was extravagantly ultra vires, survived review by the Supreme Court only because the court contrived such an emergency. Mr. Trudeau’s legislation hadn’t mentioned an emergency. The high court fixed this lapse by ruling that the existence of the law proved its necessity. It was a foolish law that was quickly repealed, and an appalling precedent – that wasn’t.

It took Michael Ignatieff to recognize the dark side of government by POGG. In 2004, before he was a candidate for the leadership of the Liberal Party, Mr. Ignatieff observed that Canada’s constitutional commitment to peace, order and good government did not stop the federal government from executing Louis Riel. Nor did it stop the federal government from corrupt practices – “from Sir John A. Macdonald to more recent regimes.” Nor did it stop Mr. Trudeau from resorting to the War Measures Act in 1970. “We have sacrificed too much freedom,” Mr. Ignatieff declared, “for the sake of order.”

It can be argued, of course, that life, liberty and the pursuit of happiness (LLPH) sacrifices too much order for the sake of happiness – even across the border. Think of the healthy, able-bodied Canadians who are paid by the federal government to stay at home and not work. Happiness indeed. No wonder employment insurance is so popular. This much, though, is certain: Had the provinces run their own EI programs, they would never have funded this much happiness. In 1940, EI became the first big POGG-driven federal takeover of provincial jurisdiction, a progressive takeover in every sense of the word. Now, constitutional barriers torn asunder, the feds fund everything (or almost everything) and disperse it directly and indirectly, hither and yon, as they deem fit. Thanks, POGG.

Ironic, isn’t it, that when Thomas Jefferson inserted LLPH in the Declaration of Independence, he wasn’t thinking of pleasures, licentious or otherwise. He was thinking of the Greek philosophers who defined happiness as “virtuous occupation.” With a bit of an edit, the famous Jeffersonian incantation could serve as the motto of a belatedly reformed EI program: life, liberty and the pursuit of honest work.

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