Opinion Column

In 150 Year why do Canadians ignore the Statute of Westminster?

By Dr. Thomas S. Harrison

The Statute of Westminster is the amongst the most important, but least appreciated, parts of Canada’s constitutional regime. The story of this British Act of Parliament is a distinctly Canadian tale of legal history and politics.
It starts in 1929 in London, England, with an odd bit of synchronicity.
In October of that year, Britain’s Judicial Committee of the Privy Council confirmed in the ‘Persons Case’ that Canadian women were ‘qualified Persons’ who could be appointed to the Senate. At the same time, in another part of London, Canadian diplomats were successfully asserting the country’s national independence at an important Imperial Conference.
After the First World War Prime Minister Mackenzie King formally sought to break most remaining colonial ties. He assigned Oscar Douglas Skelton to represent Canada at the British Imperial Conference.
Skelton, a brilliant scholar, played a major role in the creation of Canada’s first Department of External Affairs. He was also a talented enough negotiator to convince the British to end the imperial legislative supremacy. Under the Colonial Laws Validity Act, in 1865, the United Kingdom – in practice the Judicial Committee – retained the powers to invalidate laws passed by the federal Parliament or a provincial legislature.
The proposed Statute of Westminster would have abolished appeals to the Judicial Committee, like the reversal in the “Person’s Case”. Canada’s Supreme Court would have become the highest appellate body in the land. The Statute also laid the groundwork for a separate Canadian citizenship, which was finally established after World War II.
The Statute (of Westminster) was promoted by a Liberal government, but enthusiastically supported by the Conservative Government elected in 1930. Speaking in the House of Commons, Prime Minister Bennett described the Statute of Westminster as “the culmination of the long, long effort that has been made since we were a colony, to become the self-governing dominion that we now are.”
Despite its historical significance, the Statue of Westminster has been neglected in constitutional commemorations. Even as the country celebrates Confederation 150 in 2017, the milestone anniversary of this law, which declared Canada’s legal independence as a sovereign nation, passed with little fanfare or public acknowledgement. Yet this 1931 legislation was not only, in Bennett’s words, the “culmination” of Confederation. It was also an important precursor to future change.
In the end, the “culmination” embodied in the Statute was incomplete. Canada was partially exempted from the provision declaring the Colonial Laws Validity Act in applicable to future Dominion laws. The effect of s. 7(1) was to preserve the power of the British Parliament to amend the British North America Act. The exemption was necessary because Canada’s political leaders could not agree on a mechanism for amending the Constitution at home.
And it was another fifty years after the Statute of Westminster that an amending formula to fully patriate the Canadian Constitution was crafted.
But that’s another story.

Excerpted from the just released volume Canada at 150: Building a Free and Democratic Society published by LexisNexis Canada and edited by Heather MacIvor and Arthur Milnes. The author of this essay from the book, Dr. Thomas S. Harrison, is a lawyer who teaches legal ethics at Queen’s University Law School and writes about public law and history.

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