PARLIAMENTARY DEMOCRACY IN NOVA SCOTIA
250TH ANNIVERSARY CELEBRATION
THE RIGHT HONOURABLE BEVERLEY MCLACHLIN
CHIEF JUSTICE OF CANADA
MONDAY, OCTOBER 20, 2008
SERGEANT-AT-ARMS: Honourable Members, please take your places.
The Honourable Alfie MacLeod, Speaker of the Nova Scotia House of Assembly.
The Honourable John Hamm, Co-Chair, Democracy 250.
The Honourable Michael MacDonald, Chief Justice of Nova Scotia.
The Right Honourable Beverley McLachlin, Chief Justice of Canada.
Please be seated.
MR. SPEAKER: Chief Justice McLachlin, Chief Justice MacDonald, former Premier Hamm, members of the Legislature, Senators, the Consul General for the United States, honoured guests. Good afternoon and welcome to Province House for this historic address by the Right Honourable Beverley McLachlin, Chief Justice of the Supreme Court of Canada.
Before I begin, I would like to take this opportunity to recognize a few special guests here with us today: former Speakers of this House of Assembly, Mr. George Doucet and Mr. Arthur Donahoe. We also have with us the former Premier of Saskatchewan - and Nova Scotia born - the Honourable Allan Blakeney, and our former Chief Justice of Nova Scotia, the Honourable Constance Glube. (Applause)
Now as most of you in this room know, the most coveted hockey trophy among judges and MLAs and Crown Attorneys and defence lawyers is the Glube Cup and I’m sure that the former Chief Justice is not only here to listen to the address but to size up the competition for the next year’s tournament. (Laughter) For the record, since the inauguration of the cup in 2005, the MLAs have won it three out of the four times. The one loss was due to a technicality - technically, we didn’t have enough scores. (Laughter)
We are honoured to have Chief Justice McLachlin visit us on the occasion of the 250th Anniversary of parliamentary democracy in Canada. We gather today here, in the people’s House, and are ever-mindful of the duty and the responsibility bestowed upon us as legislators and as those who uphold the law in a democratic society. We are also reminded that Nova Scotia’s Supreme Court was established four years before the province was granted a Legislative Assembly.
When this building opened in 1819, the Supreme Court occupied the room just a few feet from here, between this Chamber and the Legislative Council - or as we call it, the Red Room. In 1835, it was in that Legislative Library that Joseph Howe defended himself on a charge of libel. The outcome of that trial was the achievement of the freedom of the press which launched Howe’s lengthy and distinguished career, many of those years spent right here in this very room.
Unlike many countries in this world, Canadians enjoy rights that others can only dream of. Opportunities are abundant for those who wish to explore them. At this time, as we celebrate our accomplishments at home, members of our Armed Forces are working overseas to restore peace and freedom to countries who are in conflict.
The commemoration of Democracy 250 is not the end, but, rather, a beginning. The recent federal election in Canada and municipal elections in Nova Scotia this past weekend indicate that legislators across the country have a lot of work to do, especially among the young, to encourage, engage and participate in the electoral process. The Make Your Mark campaign does just that. It promotes the value of active citizenship and inspires young people to get involved in their community, to speak out and to make a difference. One example of young people taking an initiative and making a difference is the “pink shirt boys” - D.J. Shephard and Travis Price. These two young Nova Scotian students are being praised across North America for the way they’ve turned the tide against the bullies who picked on a fellow student for wearing pink. The victim, a Grade 9 boy at Central Kings Rural High School in the small community of Cambridge, wore a pink polo shirt on the first day of school. Bullies harassed the boy and threatened to beat him up.
DJ and Travis heard the news and decided to take action. They went to the nearby discount store and bought 50 pink shirts, including tank tops, so they could wear these to school the next day. Hundreds of students showed up wearing their own pink clothes, some head to toe. The campaign had generated international media attention from as far away as Alaska. We are very proud to have these two outstanding Nova Scotians as Democracy 250 youth ambassadors. Chief Justice McLachlin, on behalf of the Members of the Nova Scotia House of Assembly, I welcome you here today and look forward to hearing your address.
I would like to now call upon the Chief Justice of Nova Scotia, the Honourable Michael MacDonald, to introduce our special guest.
HON. MICHAEL MACDONALD: Mr. Speaker; Chief Justice McLachlin; Dr. Hamm; Members of the Executive Council; Leader of the Opposition, Mr. Dexter; Leader of the Liberal Party, Mr. McNeil; all Members of the Legislative Assembly; former Members of the Legislative Assembly; Chief Justice Kennedy; Associate Chief Justices Smith and Ferguson; all members of the judiciary present; members of the Bar; all honoured guests; ladies and gentlemen. Bonjour tout le monde.
As a Nova Scotian and a Canadian, I am tremendously proud today. I am so proud to be taking part in the celebration of Canada’s first democracy. I am particularly proud of the fact that three pillars of the Canadian democracy were first set in place in my home province, Nova Scotia - an elected government, an independent judiciary and freedom of the press. Yes, there are so many Nova Scotia firsts; we should all - everyone in this room - be very proud.
Of course any discussion of Nova Scotia firsts must begin with the members of our Mi’kmaq First Nation and the wonderful contribution that they have made and continue to make in this province.
A titre de première nous savons aussi qu’en 1605, Samuel de Champlain et un groupe de colonie française ont fondé l’Acadie içi en Nouvelle-Écosse. Then, in 1721, the first General Court is set up in the same community, by then renamed Annapolis Royal. In 1754, as the Speaker has mentioned, the first Supreme Court in North America is created - the Nova Scotia Supreme Court. Of course in 1758, 250 years ago this month, the first representative government is established. In 1835, freedom of the press is first recognized by a Canadian court - the Supreme Court of Nova Scotia - in the famous Joe Howe libel trial. In 1848, that same Joe Howe led Nova Scotia to become the first British colony to win responsible government.
Today, ladies and gentlemen, we are establishing another very important first for Nova Scotia - for the first time ever, a Chief Justice will address a sitting Legislature, a special address before the Nova Scotia House of Assembly, in honour of this, our 250th Anniversary of democratic government. This, ladies and gentlemen, is what makes me most proud as a Nova Scotian today and as a Canadian today. Chief Justice McLachlin, let me tell you how proud and honoured we all are to have you join us today and to make history with us today.
Ladies and gentlemen, let me tell you a little bit about the Right Honourable Beverley McLachlin; time permits only a cursory glance into her many accomplishments. Chief Justice McLachlin hails from Pincher Creek, Alberta. She earned her law degree at the University of Alberta and folks, not surprisingly, was the class Gold Medallist. She was first called to the Bar in that province and later also to the British Columbia Bar. Chief Justice McLachlin practiced law in Edmonton; Fort Saint John, British Columbia; and Vancouver. She was also a lecturer, associate professor and a professor with tenure at the University of British Columbia.
Highlighting her judicial career, our Chief Justice was first appointed to the County Court of British Columbia and later to the Supreme Court of British Columbia where she also served as that court’s Chief Justice. She also sat on the British Columbia Court of Appeal.
Chief Justice McLachlin was first appointed to the Supreme Court of Canada in March 1989 and then in January 2000, appointed the 17th Chief Justice of Canada. She currently also sits as the chairperson of the Canadian Judicial Council, the chairperson of the board of governors of the National Judicial Institute, as well as being a member of the Privy Council of Canada.
Ladies and gentlemen, for almost 20 years, our Chief Justice’s pen has been behind hundreds of cutting-edge Supreme Court of Canada decisions that have helped shape the fabric of Canadian law. She is a tremendous leader, international judicial ambassador, brilliant jurist, tireless worker and a truly remarkable Canadian. I am deeply honoured to present Chief Justice Beverley McLachlin.
RT. HON BEVERLEY MCLACHLIN: Chief Justice MacDonald, thank you for those wonderful and over-flattering comments. I very much appreciate them.
Mr. Speaker, former Premier Hamm, Members of the Legislative Assembly of Nova Scotia, Justices, distinguished guests, mesdames et messieurs. It is indeed an enormous honour to address the Nova Scotia Legislature on the historic occasion of the 250th Anniversary of parliamentary democracy in Canada.
C’est un très grand honneur de prendre la parole devant l’Assemblée législative de Nouvelle-Écosse en cette occasion historique de la célébration du 250ième anniversaire de la démocratie parlementaire au Canada. I’m particularly pleased, it’s a real thrill to be able to give this address in Province House, Canada’s oldest seat of government, where the Nova Scotia Legislature has met every year since 1819. Today, we celebrate a truly extraordinary event - the 250th Anniversary of government elected by and representing citizens in Nova Scotia and Canada.
Why is this anniversary important? Because representative government was the first and real concrete step toward democracy, not only in Nova Scotia but in Canada. Democracy is a complex concept, with many definitions, but I think George Bernard Shaw caught the essence of democracy when he said it is, “the organization of society for the benefit and at the expense of everybody, indiscriminately, and not for the benefit of a privileged class.” In other words, government organized and run for and by the people, not by and for a privileged elite.
When Nova Scotia was first settled, the norm was government of the people by, and largely for, a small ruling elite. The Canadian experiment with democracy that began here in Nova Scotia 250 years ago defied that paradigm. The first step was representative government, installed here in 1758; the second step, responsible government, came 90 years later in 1848; representative government which we celebrate today, gave the people a voice through an elected Assembly. It did not, however, guarantee that the colonial masters who were running Nova Scotia had to pay any attention to that voice. Responsible government completed the picture by giving the elected Assembly the right to control the Executive which was charged with running the province. With these two developments in place, Nova Scotia could claim to be a place where society was organized - to return to George Bernard Shaw’s definition - not for the benefit of a privileged class, but for the benefit of the people, and democracy was launched.
We in Canada tend to think of ourselves as a young democracy. The truth is that we are among the older practitioners of representative and democratic government. Canada lays claim to be the second or third oldest continuous democracy in the world, based on the view that Canada became a democracy fully in 1848, when Nova Scotia’s 1758 experiment with representative government matured into responsible government. So, in a very real sense, Canadian democracy - one of the most mature in the world - began here in Halifax 250 years ago.
The story with which it began, the story of representative government, is a story that I think is worth telling on this historic day. Canada at the time was governed in the same manner as other British colonies - a Governor appointed by the British Government, administered the colony with the help of a number of appointed officials who were known as the Executive Council. The Governor and the Executive Council operated without a Legislature; they were responsible only to the British Parliament. The people of Nova Scotia had no say in how their affairs were run or how their taxes were spent. They were excluded from participation in the government’s decision-making processes.
The times were troubled. The Seven Years’ War raged between 1756 and 1763, enveloping both European and colonial theatres in battle. The Fortress of Louisbourg, built to protect France’s interests in the New World, had fallen into British hands. The Expulsion of the Acadians from their native lands, begun only three years earlier, was still ongoing. Yet as is so often the case in history, troubled times provoke change.
In the midst of these tumultuous and controversial events, Nova Scotia’s democratic roots were about to take shape. The expulsion of the Acadians caused enormous human suffering but it’s less well-known that it struck a severe blow to the economy of Nova Scotia. Acadian agricultural settlements and the trade they produced had been vital to the local economy and, if this were not enough, Governor Charles Lawrence found himself involved in conflicts with the leading merchants in Halifax. Many of these men came from New England and had experience with government led by representative assemblies, which prevailed in the New England Colonies. They started to argue that representative government was required if we, in Nova Scotia, were going to attract new settlers and boost the economy.
Governor Lawrence didn’t like the idea much. He feared that a representative assembly would be used to advance the political interests of his adversaries among the merchants but the British Government, with more than enough already on its plate, insisted that an elected Assembly be created. So, on May 20, 1758, 250 years ago, Governor Lawrence issued the Writs of Election for Nova Scotia’s first Legislative Assembly. Twenty-two members were elected and 19 of them sat together as the Legislative Assembly for the first time on October 2, 1758. I just finished looking at the book of that first day’s proceedings and what a thrill that was to me.
La Nouvelle-Ecosse possédait dès lors une instance dirigeant choisi directement par ses citoyens. Nova Scotia had a governing body composed of its own citizens. It can be argued that the Nova Scotia Writs of 1758 that established representative government set new benchmarks also in terms of the breadth of the franchise. The right to vote, of course, as we know, was limited to Protestant male landowners over the age of 21, which may sound rather restrictive nowadays, especially to people of my gender, but unlike England, where landowners were confined to a small, upper-crust elite, or many of the U.S. colonies where a few landowners with hundreds of slaves underneath them were occupying the land, landholding in Nova Scotia cut across the classes. So you can argue that by the standards of the time, the franchise was probably quite generous.
However, as I’ve already mentioned, representative government was just the first step and it’s important to remember that first steps are important. We don’t accomplish everything in democracy in a day, just as in other areas of life, but what was important was that those gentlemen set their foot on the path - they took the first step. Before long, they moved on to responsible government.
Up until the time responsible government was adopted, 90 years later, the old system of governance by colonial administrators continued and while there was an Assembly, the colonial administrators didn’t need to listen to the Assembly. The upshot, one can predict, was conflict. The Executive imposed policies, the Legislature opposed; the Assembly passed laws and the Executive refused to enforce them. So the result, too often, was deadlock - deadlock in the Nova Scotia Assembly and deadlock, as well, in other colonies in British North America.
The elected representatives of Nova Scotia weren’t alone in their frustration with being cast in a straightjacket of responsibility without effective power. It was becoming increasingly clear throughout the pre-Confederation colonies that representative government couldn’t really be effective unless it embodied the principle of responsible government, that the executive arm had to be responsible to the elected arm of government. We all know about the rebellions that broke out in Upper and Lower Canada, the violence in the streets, the stoning in Montreal of the Governor General’s coach. The British Government, as we know, sent Lord Durham out to solve the problem and he recommended responsible government.
Il a conclu que le problème découlait de fait que les conseils exécutifs n’avaient pas l’obligation de rendre des comptes. Il a recommendé la mise en place de gouvernement responsable. It took the British Government some little time to come around and accept Lord Durham’s recommendation but finally it did and in January 1848, Nova Scotia became the first colony to put responsible government into action. The Legislative Assembly passed a vote of no confidence in the Executive Council and the Council resigned. Sounds simple now, we take that for granted but it was a great innovation at the time, a great step forward and the true beginning of democracy in Canada.
The other Canadian provinces followed suit: the united Upper and Lower Canada, as well as New Brunswick, later in 1848; Prince Edward Island in 1851; and Newfoundland in 1855, although it was still, of course, a separate colony and didn’t come to Canada until much, much later. With the extension of the franchise to women, minority religions and people of non-European descent in the 1900s, the current form of Canadian democracy was complete.
The representative and responsible democracy installed in Nova Scotia in 1758 served as a model for other parts of Canada. By the time of Confederation in 1867, representative and responsible government had been operating in most of what is now central and eastern Canada for almost 20 years. The Fathers of Confederation simply adopted a system that they knew, a system that was already working and working well. So colonial democracy became Canadian democracy.
What was it about this corner of the world that led to Nova Scotia’s prescient role in the development of Canadian democratic institutions. Why was it that democratic theories, which remain just theories in most of the world, took root here? Why did the people so persistently insist that the usual European way of doing things - rule from the top, by the top, for the top - had to go and to be replaced by government by and for the people?
The answer is complex. Clearly the times were difficult and England lacked the stomach for yet further North American colonial wars. Eventually it acceded to demands by the people of the colonies. But what made the people push so hard for it? I like to think a large part of the answer lay in their commitment to two related values that have come to be associated with Canada: fairness and inclusion.
John Ralston Saul in his latest book says, “When Canadians are asked ... what lies at the heart of their civilization, they are most likely to reply: fairness and inclusion.” Canadians seek fairness, not in some passive sense - think of the “pink shirt brigade”- they aggressively pursue it, and fairness leads us to inclusion, for fairness is a group concept.
When Canadian James Orbinski, long-time head of the Doctors Without Borders organization, was asked to identify the core of Canadian civilization, he replied that it was fairness and then he added, referring to inclusivity, I think it’s a principle - what’s good for me should be good for you.
Fairness and inclusion, transformed into action by a strong streak of post-colonial independence, lie at the heart of the Canadian consciousness and define its identity. The ethos of fairness and inclusion was born of historical circumstance - handfuls of desperate colonists, French, English, and many more, found themselves thrown together into a harsh land populated by Aboriginal nations.
Survival wasn’t easy; co-operation was imperative and the people learned that the only solution was to live together in peace, in respect for the other. You had to be independent and strong to survive, and that strength and independence in turn bred a confidence that you could run your own affairs - you also had to respect and get along with others to survive, and that bred an insistence on fairness and a conviction that every person counted.
It was independence coupled with the ethic of fairness and inclusion that lead to the conviction that the people - eventually all the people - were entitled to a say in governance, and from this spirit was born representative and responsible government.
This spirit of fairness and inclusion not only produced our democracy, it has shaped its other institutions - it has shaped the Nova Scotia Legislature, whose 250th Anniversary we celebrate today; it has shaped the sophisticated executive branch, grounded in the principle of responsible government; and it has given us our courts.
The third branch of government, the judiciary, to which I belong, was accorded constitutional status with the British North America Act in 1867. I’m sorry to say that the judiciary isn’t celebrating any anniversaries in 2008; however, I also have to say this comes as something of a relief - at least to me - since it seems I’ve been spending most of the last eight years celebrating anniversaries of the judiciary.
In 2000 we had the 125th Anniversary of the Supreme Court of Canada; in 2002 the 20th Anniversary of the Charter of Rights and Freedoms; in 2005 the 20th Anniversary of Section 615, the Equality Clause of the Charter - we, in the law, think that merited a special celebration and, I still do; in 2007 the 25th Anniversary of the Charter; and next year we’ll celebrate the 50th Anniversary of Abolition of Appeals to the Privy Council, a date that finally ended the colonial judicial era and marked the full independence of the Canadian judiciary. Along the way there have been celebrations of anniversaries of provincial judiciaries, including, as you heard, the 250th Anniversary of the Supreme Court of Nova Scotia, which I was here to help celebrate in 2004.
I’ve suggested that the spirit of fairness and inclusion advanced the development of representative and responsible government in Nova Scotia and, more broadly, in Canada, and thus gave rise to the basic structures of governance we enjoy today. This applies as much to the judicial branch as to the legislative and executive branches. We have come to recognize that an independent Canadian judiciary, a judiciary that reflects our own unique history and set of values, is essential to the rule of law and good government.
We have come to recognize, through our jurisprudence and our laws, that we all count - every man, woman, and child - that we all have the right to be treated fairly. Our laws and our courts have brought all our peoples within the embrace of the law. They have recognized the importance of our First Nations people and have affirmed the need to reach fair and just settlements with these people who maintain the ancient honour of the Crown. Our human rights laws, salient among them the Charter of Rights and Freedoms, have enshrined fundamental, personal,, group and democratic guarantees, including the guarantee of equal treatment before and under the law - fairness, inclusion.
At the same time, our laws recognize that rights are not absolute, that they may be limited in the broader public interest where justified, in a free and democratic society. The courts, with deference to the reasonable solutions and accommodations worked out by the legislative branch and applied by the executive branch, play a role in working out the balances that allow a disparate and diverse people to live together in productive harmony. The themes of fairness and inclusion running through our basic laws and judicial pronouncements are themes that would have resonated with those distant Nova Scotians who fought for representative and responsible government. We all have the right to be treated fairly, we all count.
Former Chief Justice Antonio Lamer concluded perhaps the most important judgment on Aboriginal rights of our day - Delgamuukw - with these words, “Let’s face it, we are all here to stay.” “Il faut se rendre l’évidence, nous sommes tous içi pour y rester.”
Had you asked the Nova Scotians who fought for representative government in 1758 and responsible government in 1848 how they view their small diverse community, I think they, too, would have said, “Let’s face it, we are all here to stay.” It was that belief, a belief born of their sense of community and the need to live together in respect, in the spirit of fairness and inclusion, to fight for a way of governance we still hold more dear today that dominated their thoughts.
For us today the question is the same - how do we view the large diverse community their efforts have spawned? A community we call Halifax, Nova Scotia, Canada. A community made up of people whose ancestors go back centuries and millennia in this land as well as people who have come more recently from all parts of the world.
Each generation has its own challenges and our challenges may seem very different from those which faced the people who created representative and responsible governance here so many years ago. Yet the values that help us rise to those challenges remain the same - fairness and inclusion. Our answer to the question of how we view ourselves is the same as that of our forebearers. We are all here to stay. It is our task to make our society work through democratic institutions, the very institutions our forbearers fought so assiduously to create and maintain - all in the spirit of fairness and inclusion.
You, the members of the legislative and executive branches of government bear the brunt of this work of reconciliation and constant reconstruction. We in the judicial branch understand the difficult choices you must make. We are called upon from time to time to review these choices as is required by our constitution and fitting in a mature democracy. We discharge that task not as adversaries but as independent partners in a larger democratic venture.
I cannot conclude without congratulating the leaders of Democracy 250 for using this anniversary not only to celebrate the past, a past that richly deserves to be celebrated, but to reach out to the future by engaging young Canadians in the democratic process. Two hundred and fifty years ago, a small group in a remote place we call Nova Scotia installed, over great odds, representative government; 160 years ago, they created responsible government. These were no small achievements. They passed them on to us and we will pass them on to future generations. It is today’s youth who will carry the experiment that is Canadian democracy forward to the future and it is fitting that its representatives should be part of these celebrations.
Thank you, finally, for letting me be part of this day. My ancestors came to Canada a century and a half after the events we celebrate today. They chose Canada not because it was rich, nor because it was powerful, but because it was a democracy. They were tired of living in countries where the government was run by and for a privileged elite. They saw the country where the people would govern, where the people would be protected by rights, a country that would be fair and inclusive. I, their descendant, am indebted to the pioneers of Nova Scotia who began the journey of democracy that has so enriched us all. From the bottom of my heart, I thank you. Du fond du coeur, je vous remercie.
MR. SPEAKER: It is now my pleasure to call on the Co-Chair of Democracy 250, former Premier John Hamm.
DR. JOHN HAMM: Thank you, Mr. Speaker. I would like to issue two thank yous; first of all, to Chief Justice MacDonald for the enthusiasm that you have brought to our celebration, beginning with the very first conversation that you, I and Russell MacLellan had a number of months ago. Chief Justice McLachlin, on behalf of my colleague, Russell MacLellan, everyone at Democracy 250 and certainly everyone here today, thank you for adding to the celebrations marking an important milestone for our country and an important first for our province.
It has been suggested to me that had it not been for another proud first for Nova Scotia - the first supreme court in North America, which occurred four years before representative government - that Nova Scotia’s journey towards an elected Assembly would have been far more arduous and perhaps the title of Canada’s first parliamentary democracy would have eluded us. Not surprisingly, it was a lawyer who put that case forward. Regardless, the title of Canada’s first parliamentary democracy rests with Nova Scotia, along with many other proud firsts.
I’d like to paraphrase something that Speaker MacLeod said in these Chambers just a couple of weeks ago when, on October 2nd, we gathered to celebrate the actual date of the first sitting of an elected Assembly. He said something like this - democracy is upheld and it is strengthened, not just within the walls of government but in the halls of justice and in the brave hearts of the military men and women who serve its principles both at home and abroad.
I’d like to add to that. Democracy is also upheld and it is strengthened when every voter - young or old, black or white, gay or straight, rich or poor, Christian, Muslim or Jew - stands up for fairness and inclusion. The same values that Chief Justice McLachlin noted here likely at the root of our ancestors’ journey toward democracy many years ago.
The laws enacted by Parliament and provincial Legislatures throughout our country are upheld by our courts, sometimes even challenged. It is a prerogative extended to them by a democracy that is committed to ensuring fairness and inclusion within the bounds of a civil society, guided by a Charter of Rights and Freedoms. A Charter of Rights and Freedoms that extends to all of us equally, an abundance of both. We are blessed to live in Canada and I am proud to say that I am from Nova Scotia, a small province that has a big impact on Canadian history; a small province that created many of the conditions that today make Canada one of the most admired and respected nations in the world; a beacon for those who seek fairness and inclusion.
Justice McLachlin, you have added prominence and prestige to our celebrations by being here today. Merci. On behalf of Democracy 250 and the Office of the Speaker, I would ask you to come forward and please accept a small gift of thanks for being here with us today. On behalf of the people of Nova Scotia, I’m very pleased to have something of Nova Scotia for you to take home.
RT. HON. BEVERLEY MCLACHLIN: Thank you, thank you so much. (Applause)
MR. SPEAKER: Ladies and gentlemen, that concludes the ceremonies today with Chief Justice Beverley McLachlin. I would invite all the honourable members and our guests to come to the Red Room after the Official Party leaves the room. We’ll have a reception and have an opportunity to exchange some conversation. So thank you all so much for being here today, we really appreciate it. Thank you. (Applause)