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“As a member of the Canadian Legislature, I pledge my best support to help this enterprise [...] and I hope to see growing a Canadian Empire in North America connected and linked together by this Intercolonial Railway, that may hold a position able to counterbalance the grasping power of the United States on this continent.”
— His Honor the Speaker, the Honorable U.J. Tessier, at a public meeting held in Quebec in 1858, when three delegates were in England pressing for Confederation.
VERTICAL (NORTH-SOUTH) INTEGRATION OF CANADA INTO THE USA
IS PROHIBITED BY CONFEDERATION
Annexation is Unconstitutional and thus Illegal
I like to start my Constitutional law research with an historical view of what happened in similar circumstances. In other words, I begin with a search for precedent. The current issue of President Obama's high-speed bullet train, which he intends to deliver direct to Montreal, bypassing the US-Canada border and without any customs facilities, is broached in terms of railways and the Canadian Constitution. For, of course, the building of the Intercolonial, that is, the Canadian Pacific Railway (CPR) -- a ribbon of steel which would finally unite Canada from coast to coast, was a condition upon which the Maritime provinces agreed to join Confederation; it was also a pledge offered by Macdonald to secure the addition of British Columbia to the Canadian Union.
Or, as the Hon. Mr. George Brown said in the 1865 Debates on Confederation (page 103), “the Intercolonial Railroad has been made an absolute condition of the compact”. George Brown also underscored the "military" nature of Confederation, as a defence against U.S. annexation, when he described that threat as follows:
[T]here is no better mode of warding off war when it is threatened, than to be prepared for it if it comes. The Americans are now a warlike people. They have large armies, a powerful navy, and the carnage of war has to them been stript of its horrors. The American side of our lines already bristles with works of defence, and unless we are willing to live at the mercy of our neighbors, we, too, must put our country in a state of efficient preparation. War or no war-- the necessity of placing these provinces in a thorough state of defence can no longer be postponed. Our country is coming to be regarded as undefended and indefensible-- the capitalist is alarmed, and the immigrant is afraid to come among us. Were it merely as a measure of commercial advantage, every one of these colonies must meet the question of military defence promptly and energetically. And how can we do this so efficiently and economically as by the union now proposed ? (Hear, hear.) I have already shown that union would give us a body of 70,000 hardy seamen ready and able to defend our sea-coasts and inalnd lakes ; let us now see what would be the military strength of the Confederation.Further in the same Debates, it was said: “[...] the Intercolonial Railway [...] as a work of defence [...] has [...] many advocates ; but, if the union of the provinces is to go on, it is an absolute necessity...”
In effect, the statututory and constitutional purpose of the British North America Act, 1867 was to be Canadian, and not American; emphatically and permanently to retain our independence and our control over our own territory and our different destiny. However, on the very eve of Confederation, open threats were still incoming from the Americans:
Horace Greeley's New York Tribune of May 10, 1867 sneeringly declared:
"when the experiment of the 'dominion' [referring to the imminent Confederation of 1867] shall have failed – as fail it must – a process of peaceful absorption will give Canada her proper place in the great North American Republic."
The Tribune was joined in chorus by the New York Herald in proclaiming the ultimate American acquisition of the British Colonies. Other American papers, including the New York Times and the New York World, differed from the Tribune and the Herald in degree but not in substance. Anthony Trollope in his journey around the United States and Canada in 1861 and 1862 remarked how Canadians constantly heard they are to be invaded, and translated into citizens of the [American] Union."
“The [American] Civil War would end sometime, and when it did, the whole western half of British North America, from Lake of the Woods to Vancouver Island, would be in imminent danger of being absorbed by the United States, in the same inexorable way that Oregon had been swallowed up only eighteen years before.” (Life and Times of Confederation 1864-1867, P.B. Waite, University of Toronto Press, Canada 1962, p. 118)
On June 24, 1864, as the Civil War was drawing to its conclusion, the New York Herald editorialized that soon "… four hundred thousand thoroughly disciplined troops will ask no better occupation than to destroy the last vestiges of British rule on the American continent and annex Canada to the United States." (Manifest Destiny and Western Canada, Chapter I, A Tale of Two Countries, Todd Sauvé: http://www.dickshovel.com/two.html)
The Hon. Mr. McGee, at page 132 of the Confederation Debates warned his fellow representatives of the acquisitive Americans: "They [the Americans] coveted Florida, and seized it; they coveted Louisana, and purchased it; they coveted Texas, and stole it . . . . The acquisition of Canada was the first ambition of the American Confederacy, and never ceased to be so. . . ."
Founding father of Canada, the Hon. George-Etienne Cartier, speaking in the 1865 Debates, underscored for the Hon. Members the true nature of the long-time ambitions of the American state when speaking of the former Province of Canada:
"The absorption of this province [Upper and Lower Canada] into the United States had long been contemplated, as would be seen from the 7th article in the original draft of the American Constitution, which he would read. It was as follows: " Art. 7. Canada, according to this Confederation and joining in the measures of the United States, shall be admitted into, and entitled to all the advantages of this union; and shall be equally with any other of the United States, solemnly bound to a strict observance of, and obedience to, these articles ; as shall be also any other colony which shall be admitted into this Confederacy. The eleven votes in Congress shall be increased in proportion as the Confederacy is extended. But, except Canada, no other colony shall be admitted into the Confederacy without the assent of eleven or more votes, as the case may require, by the Confederation being extended." By that article, no new state could go into the union except by the vote of the number of states required to admit a new partne. But, as regarded Canada, no such assent was required ; on knocking at the door of the union, she would, as a matter of course, be admitted.”
Confederation, it was declared at p. 24 of the Debates of 1865 "by contrast with other forms of defence, was both cheap and simple. That was the principal reason for the unequivocal backing it received in London. Confederation cost Britain nothing but the trouble of despatches and the occasional juggling of colonial governors; ultimately, it would save eight colonies by making them one."
The military danger to Canada from the Americans was clearly expressed at page 32 of the same Debates: "The huge union armies and the truculence of the government that controlled them were dangers enough, but the basic indefensibility of Canada was worse."
It was a desire not to be annexed to the United States of America which animated preparation of the Constitution Act of 1867. That refusal to be annexed is the "mischief" or the "evil" under the mischief rule which determines the purpose of a statute, including that of a constitutional statute. The mischief of annexation to the USA was the "evil" which the Imperial statute of 1867 was passed to remedy "for all time to come".
That purpose is not spent; today, as in 1867, it forms the permanent core of the Constitution of Canada. And today, under threats of North American Union, more than ever, that purpose lives and speaks, and must be given its full and unremitting Constitutional effect.
Every court in this country, every government, and every Legislature and Parliament is duty bound under sworn oath of allegiance to give effect to that purpose; otherwise, they have no right to exercise elected or appointed office.
The permanency of the Canadian union -- its permanent exclusion of annexation -- is clear and unequivocal from the intent of the founders:
In the 1858 parliamentary session of the Province of Canada, -- [Alexander] Galt urged federation not only as a cure for the distresses of Canada, but as a great constructive scheme. The Canadian ministers professed to feel that the time had arrived for a general constitutional discussion. The British North American colonies were like isolated and weak foreign states, a condition which was 'considered to be neither promotive of the physical prosperity of all, nor of that moral union which ought to be preserved in the presence of the powerful confederation of the United States'. The imperial government was requested to authorize a meeting of delegates from all the colonies and from the two divisions of Canada to consider a federal union and to discuss the principles on which it could be based .... for ever removing the fear that these colonies may ultimately serve to swell the power of another nation'. [....] The whole scheme aimed at creating a stronger union than that of the United States ..." (W.P.M. Kennedy, The Constitution of Canada 1534-1937, New York, Russell & Russell, [first published 1922] at pages 286-7)It is further clear from the words of the Hon. Mr. Alexander Campbell, Commissioner of Crown Lands [Cataraqui], on Monday, February 6, 1865 at pages 21 and 22 of the 1865 Debates, where he declares that: "The Conference [of delegates to prepare Confederation] acted upon the conviction that they were not building a structure for a temporary purpose, but, as they hoped, for centuries."
Canada was built in 1867 to last "for centuries", but 150 years later, Barrak Obama presumes to aim his BULLET train into the very heart of Canada which even General George Washington in 1775 was unable to claim with his bald attempt to seduce the French Canadians into U.S. annexation:
"Come, then, my brethren, unite with us in an indissoluble union; let us run together to the same goal." (Washington to the Inhabitants of Canada, in John Joseph Henry. Account of Arnold's Campaign Against Quebec: And of the Hardships and Sufferings of that Band of Heroes who Traversed the Wilderness of Maine from Cambridge to the St. Lawrence, in the Autumn of 1775, Albany: Joel Munsell, 1877, pages 5-6)
The American Civil War of secession from about 1861-64 inspired the founders of Canada to protect us from annexation, because:
(i) the Americans had brutally slaughtered or injured well over a million of their own fellow citizens over the secession issue, and we were determined never to fall into that pit: "And it was a liberal regime, the United States under Abraham Lincoln, that broke with the European code of civilized war by demanding unconditional surrender and launching total war against the civilian population of the South, resulting in 1,500,000 killed, missing, and wounded." (Secession and The Modern State, Donald W. Livingston, PhD., Department of Philosophy, Emory University, December 1996)
(ii) our ancestors did not wish to be annexed, and were determined to retain not only their individuality as British colonies developing on new soil, but to retain their independence from America;
(iii) early Canada was faced with grave hazards including the Irish-American Fenians, many of whom were "battle-tried" veterans of the Union Army, wished to seize Canada for the USA in vengeance for British rule in Ireland; and by Americans determined to annex Canada as the "divine" right of the USA under the doctrine of "Manifest Destiny".
(iv) In addition, the BNA colonies prior to 1867 were already losing immigrants to America because of a dearth of available arable farmlands here at that time;
(v) Americans in the north perceived the BNA colonies over the 49th parallel as in sympathy with the southern war of secession (though this was an exaggeration) and were threatening to cancel the Reciprocity Treaty by which the BNA colonies were able to use American rail and other routes into the USA and out to the sea coasts for the purpose of trade and shipping;
(vi) hard-core American secessionists were eyeing the west and north-west of the continent, and could have made decisive moves at any time to seize them, thus cutting off the BNA colonies on those two sides, and making it easier to finally absorb them.
In the context of all this, the British North America Act, 1867 was passed, including express plans for HORIZONTAL integration of the BNA provinces and territories. The chief means of integration would be the Canadian Pacific Railway, a "ribbon of steel" binding the founding provinces together into one consolidated nation.
The “Intercolonial Railway“, later named the Canadian Pacific Railway or CPR for short, was anticipated not only in the 1858 speech of Speaker Tessier, but provision was made for it in the 1864 Quebec Conference as reflected in the “72 Resolutions"; which were then debated in the Provincial Parliament of Canada in 1865; refined in London in 1866, and passed into Constitutional law of Canada by the British North America Act, 1867, (30 & 31 Vict.) C A P. III. This "constitutional" railway was a work of defence to protect Canada from annexation to the U.S.A., and not merely a commercial venture in view of trade. The horizontal nature of the Canadian Union required horizontal integration, and the railway was its chief tool.
Attorney General John A. Macdonald, speaking in the Confederation Debates on Monday, February 6, 1865 (page 32), made clear the defensive nature of both Confederation and its integral railway when he said: "If we are not blind to our present position, we must see the hazardous situation in which all the great interests of Canada stand in respect to the United States."
In 1881, the CPR was commenced by ratification in Parliament of the contract to have it built. Section 15 of that contract prohibited the building of branch lines from anywhere along the CPR down toward the US border, i.e., in a southerly or south-westerly direction.
Throughout the 1880s, countless provincial laws chartering private firms to build precisely such branch lines, but outside the CPR contract, were disallowed by the Governor General in Council of Canada because they contravened the "settled policy"(FN 1) of the government: meaning that despite these laws being otherwise valid(FN 2), they tended to VERTICALLY integrate the fledgling nation of Canada into the USA, thus delivering our trade down south to the USA to the profit of their own rail lines, whereas we needed to keep our trade at home:
(i) to the profit of our own lines (including the CPR, which involved a huge investment in borrowing by the federal government of Canada);
(ii) and because we needed to consolidate the country horizontally to a position of strength before it would be SAFE for us to build rail lines to the USA.
As a particularly apt illustration, Manitoba(FN 3) planned to charter rails and tramways that would have touched points along the Minnesota border. That was the home territory of the most virulent, hard-core US annexationists who were determined to seize all of Canada:
"Indeed, a single bold military thrust into this region from Minnesota, the epicentre of annexationist passion, (under governors Alexander Ramsey, Henry H. Sibley and William R. Marshall), would have gained them the entire western portion of the continent."
A rail line from Winnipeg to Minnesota would thus have given U.S. troops or mercenaries a free ticket to ride into the heart of western Canada for the takedown of Canada.
Our constitutional history therefore shows that Canada was intended to be horizontally integrated to PREVENT annexation to the USA; and that laws of provinces involving the building of rail lines were routinely DISALLOWED when Canada was felt to be still too vulnerable to attack from annexationists.
Today, the Obama bullet train is touted as the pretext for removing the very national border along the 49th parallel which our founders sought to protect both by building the CP Railway into the Constitution Act of 1867, and by repeatedly disallowing otherwise valid provincial laws to prevent the ANNEXATION OF CANADA to the USA.
The bullet train is a bald assault on the absolute sovereignty of Canada; and a sham and a pretext for attempting to oblige us to remove the national border as if this is required to make the high-speed trains work. One might as well say we need to remove customs offices from our airports to make THOSE work. It simply doesn't make sense, it's part of the scam of psychological intimidation to make us feel that removing the border and cancelling Canada are "required" and thus "inevitable".
That's a pretty good summary of my research on this point up until now. On the other hand, I already also know that the Provincial legislatures of Canada are LIMITED to measures for LOCAL purposes only; they cannot act in a way that substantially affects either another Province, or all of Canada. (Which is one reason why the (phony) referendums to "secede" in Quebec of 1980 and 1995 were utterly illegal, as they were MEASURES of supposed "government" which would obviously have substantially affected all the Provinces and the entire Constitution of Canada, powers the Provinces simply do not have.
The Quebec Legislature might have power to charter rail lines; however, it has no power to remove the NATIONAL border between the USA and Canada, even that portion coinciding with its own soil. In other words, it has no power to VERTICALLY INTEGRATE any part of Quebec into the USA with a view to annexation of Quebec or, by the domino effect, all of Canada.
Moreover, the Parliament of Canada has no power to remove the national border because those we elect do not own the Constitution, and have no right to REMOVE the national border, thus causing half a billion Americans and Mexicans to flow north, unsettling Canada.
The sole power of the Parliament of Canada is concentrated into one word: "GOVERN"; meaning they must ALWAYS govern, they may never CEASE to govern; and the jurisprudence indicates that the word "govern" is only meaningful in relation to those who ARE to be governed, meaning CANADIANS; not Americans and not Mexicans on our soil. And certainly not that mythical hybrid (or tribrid) creature, Robert Pastor's so-called "North American".
The full name of this power is found at Section 91 of the British North America Act, 1867, now called the Constitution Act, 1867: the “PEACE, ORDER and GOOD GOVERNMENT” (or POGG) power:
There is no legal, constitutional way to get around this, including a stab at constitutional amendment, because this would not BE an amendment, but the overthrow of the country disguised as amendment.
Moreover, the jurisprudence is clear, not only in Canada but the other BNA dominions and former colonies: you may not use a LIMITED POWER to create a larger power. The LIMITS imposed by the POGG power at s. 91 mean that it cannot be used to do ANYTHING, whether pass a law, or pass an amendment, in order to EXPAND that power to do what the Constitution currently prohibits as part of its founding purpose, which is judicially enforceable: that is, to PREVENT THE ANNEXATION of Canada to the United States of America, and to prevent the Secession of any province.
_______________
(FN 1) The precise text of Clause 15 in the Canadian Pacific Railway contract is quoted in this excerpt from a letter of Justice Minister A. Campbell, recommending disallowance of British Columbia Acts chartering rail lines going south and touching the U.S. border:
“The policy of the Government in this behalf, confirmed by Parliament, was given expression to in the following clause of the contract between the Government of Canada and the Canadian Pacific Railway Company, dated October 21st, 1880.
15. "For twenty years from the date hereof, no line of railway shall be authorised by the Dominion Parliament to be constructed south of the Canadian Pacific Railway from any point at or near the Canadian Pacific Railway, except such line as shall run south-west or to the westward or south-west ; nor to within fifteen miles of latitude 49, and in the establishment of any new Province in the North-West Territory, provision shall be made for continuing such prohibition after such establishment until the expiration of the said period.For these reasons, which the undersigned has had occasion previously to state more fully than it is now necessary to do, he respectfully recommends that the said Acts-- chapter 26, "An Act to incorporate the Fraser River Railway Company," and chapter 37, "An Act to incorporate the New Westminster Southern Railway Company,"-- be disallowed.
SIGNED: A. Campbell, Minister of Justice.”
Source: Sessional papers of the Dominion of Canada : volume 10, third session of the fifth Parliament, session 1885; Ottawa : MacLean, Roger, [1885] ; Sessional Papers (No. 29), page 80
(FN 2) Below are two excerpts from a discussion in which Manitoba is fiercely contesting the federal disallowance of provincial legislation it had a right to pass in view of the subject matters at Section 92 of the British North America Act, 1867. However, despite Manitoba’s undoubted right to legislate in order to charter railways, the effect on the entire Dominion of Canada was national in its implications, and because of the general risk to the fledgling nation, these otherwise valid statutes were disallowed to assure the consolidation of Canada, and inherently to prevent annexation to the U.S.A.
"Your address refers to the question of disallowance, and the elections which have recently occurred and the discussions to which they have given rise have added additional interest to the question. As you are aware, the contract with the Canadian Pacific Railway in no way interferes with the right of the Legislature of Manitoba to grant charters within the boundaries of the Province as they existed at that time. This was very clearly pointed out during the debate in Parliament, when the contract with the Syndicate and the charter to the Company were granted. It was important, however, on every ground, commercial as well as national, that the Canadian Pacific Railway should be an all-through line on Canadian territory, and that we should not be dependent in any way upon American lines for our traffic with Manitoba and the North-West."Source: Sessional Papers (No. 21), p. 232
-and-
“That after the passing of said Canadian Pacific Railway Act the Legislature of the Province did, according to its undoubted right (as heretofore referred to) by Acts of the said Legislature, charter divers railway companies for the purpose of constructing, maintaining and operating lines of railway wholly situate within the Province as before defined, yet all of such Acts as chartered a line of railway to be constructed or operated to any point within fifteen miles of the international boundary line have been disallowed and vetoed by the Governor General of Canada in Council, and as the said Canadian Pacific Railway was then incomplete, such disallowance was submitted to rather than in any way impede the completion and rendering permanent of the Canadian Pacific Railway, the same being a national highway.”Source: Sessional Papers (No. 21), page 230.
What is important is that the Canadian Pacific Railway is described as “a national highway” for Canada. Today, the all-too-familiar blue, pink and yellow North American Union map transected by multi-modal corridors of rail, highway and other infrastructure piercing north into Canada to merge the continent, is an attempt to do for North America what the Canadian Pacific Railway was designed to do for Canada: fuse it into a “nation”. KM
(FN 3) "The act of the Manitoba legislature, incorporating the Winnipeg South-Eastern Railway Company, was disallowed because it conflicted with "the settled policy of the dominion, as evidenced by a clause in the contract with the Canadian Pacific Railway," which was ratified by parliament in the session of 1880-81 ; which clause is to the effect that "for twenty years from the date hereof
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no line of railway shall be authorized by the dominion parliament to be constructed south of the Canadian Pacific Railway, from any point at or near the Canadian Pacific Railway, except such line as shall run south-west or to the westward of south-west, nor to within fifteen miles of latitude 49. " The government of Manitoba contended at the time that the act was "strictly within the jurisdiction of the legislature of the province."(1)
These cases show the large power assumed by the dominion government under the law giving them the right of disallowing provincial enactments. The best
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authorities concur in the widsom of interfering with provincial legislation only in cases where there is a clear invasion of dominion jurisdiction, or where the vital interests of Canada as a whole imperatively call for such interference. The powers and responsibilities of the general government in this matter have been well set forth by a judicial authority: "There is no doubt of the prerogative right of the Crown to veto any provincial act, and to apply it even to a law over which the provincial legislature has complete jurisdiction. But it is precisely on account of its extraordinary and exceptional character that the exercise of this prerogative will always be a delicate matter. It will always be very difficult for the federal government to substitute its opinion instead of that of the legislative assemblies, in regard to matters within their jurisdiction, without exposing itself to be reproached with threatening the independence of the provinces." [...] And in any case, "under our system of government, the disallowing of statutes passed by a local legislature after due deliberation, asserting a right to exercise powers which they claim to possess under the British North America Act, will always be considered a harsh exercise of authority, unless in cases of great and manifest necessity... "(1)
__________
/ (1) Can. Sup. Court R., vol. 2, Richards C.J., p. 96; Fournier J., p. 131.
Source: A Manual of the Constitutional History of Canada from the Earliest Period to the year 1888 by John George Bourinot, 1888. Now scanned and online at Google Books:
http://books.google.ca/books?id=JVVxttlf6jQC&printsec=frontcover&dq=bourinot,+1888&source=bl&ots=3TGljCodPE&sig=oM2QjrCXC9iPcRikp8gf5qIN6Vc&hl=en&ei=7FKyS4eWBcP68AbDuODyBQ&sa=X&oi=book_result&ct=result&resnum=1&ved=0CAYQ6AEwAA#v=onepage&q=&f=false
Notes: Who is John George Bourinot? Read about him here, in the Canadian Parliamentary Review:
Sir John George Bourinot: Vistorian Canadian-His Life, Times and Legacy, McGill-Queens University Press, 2001.
http://www2.parl.gc.ca/Sites/LOP/Infoparl/english/issue.asp?param=80&art=229
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http://en.calameo.com/books/0001117902912e63de7f8
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Obama Pushing Canada-USA Merger With Bullet-Train - Project of the Century: North American Union (March 2010, La Metropole)
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