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Transcript - Canadian Politics 101: Philosophical Foundations of Canada

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Introduction

Ian Van Harten (00:01.709) All right. Dr. Tom MJ Bateman. Thank you for being here.

Tom M.J. Bateman (00:07.694) My pleasure, Ian.

Ian Van Harten (00:09.375) yeah, would you mind just introducing yourself a little bit and let people know who you are and what you do.

Tom M.J. Bateman (00:16.792) Sure. I am professor of political science here at St. Thomas University in Fredericton, New Brunswick. I've been at Stu since 2003. And before then, I taught political science at a small place called Augustana University College in Camrose, Alberta. Got a PhD from the U of A and a couple of degrees in political science from the University of Calgary.

And I have a wife and three kids and two grandkids.

About The Canadian Regime

Ian Van Harten (00:51.247) Great. And so you're also a coauthor on this book, The Canadian Regime. Can you talk a little bit about, so that will be kind of the source material and inspiration for what we're talking about here. So can you talk a little bit about what this book is about and how did it come about and why did you and your coauthors want to write it?

Tom M.J. Bateman (01:15.682) Yeah, there is a sense in which you're talking to the wrong guy because the book was conceived long before I knew about it. Two colleagues and friends of mine, Patrick Malcomson and Richard Myers, came up with the idea of an introductory text on the institutions of Canadian government back in the 1990s.

and they both taught political science and they both taught Canadian politics and government and they noticed that there's a bit of a movement away in political science from a more traditional institutional analysis of politics and government and their view is that institutions are actually very important because they embody basic principles of

of political life and they sort of order and regulate, channel, and by those means influence political forces and energy and they really do influence political results. So the choices a country makes in the institutions it adopts for its government are really important. And yet a lot of political science

60s 70s and 80s was more sort of behavioral in character looking at people's attitudes and values and opinions and also looking at forces like the distribution of wealth and so forth and a lot of people said that's how you really understand a place like like who's got the money and who doesn't have the money and those things are important but they they are

are part of a larger sort of constitutional and institutional matrix within which all kinds of debates and conflicts are managed and sorted out. so, Malkhamson and Myers said, yeah, we need to return to a more basic and traditional account of politics and government for this country so that Canadians really understand the rules of the game. And so, they...

Tom M.J. Bateman (03:41.934) produced the book, I think in the late 1990s, and it's been very popular. It's been a real winner. The University of Toronto Press eventually took it over and it's been through many editions. Actually, now I'm part of a group working on the eighth edition of the book, and it's one of University of Toronto Press's most popular undergraduate texts.

So that's good. As time went on, Patrick and Rick, you know, obviously got a little bit older and they began to think of a succession plan. And when I came to Stu, that's when I met Patrick Malcomson and we became very good friends. And we would always exchange drafts of papers that we were doing for other purposes. And we talk a lot and...

and so on and so forth. I've learned an awful lot from him about teaching and about the discipline of political science. And so I was eventually asked if I want to join as a co-author. And another colleague of ours, Gerald Beier from University of British Columbia, also came part of the team. And the idea was like a long-term sort of transition of the authorship of the book. And so now for the most recent edition, Patrick is now retired.

And he sort of backed out. He's now the elder statesman in the book. And I have coordinated the preparation of the most recent edition, but Jerry Beier is still on. Rick Myers is still on. And then a former student of mine, Dave Snow, who's at the University of Guelph in Ontario, is now also brought on as a fourth co-author for the most recent edition. So it's been a great learning experience.

And I've always found the book just fantastic because it has such a systematic, kind of low key approach to understanding government. And just like the logical sort of layout of the book, I think has been really, really helpful to students. And I'm intrigued that you sort of chanced upon it and found it worth talking about.

Ian Van Harten (06:10.383) Yeah. And I can attest to the difference it makes, shifting to describing the institutions, not that I would have been able to understand it that way. You know, I haven't read a ton of political science books about Canada, but this one really did stand out in terms of it being not only really accessible and it's written in kind of a plain language style that's really easy to digest, but, just the way you approach

how to talk about it. I just found it was really informative and really eye-opening. So I can really, yeah, attest to, the difference it makes to the, the kind of underlying philosophy you were describing there. and I, and I guess, in terms of, you're, you're doing this new, the eighth edition, right? And I guess you always wait until an election happens to kind of, follow up and recap a little bit of what happens there too, right? That's kind of how the editions are put out.

Tom M.J. Bateman (07:08.43) Yeah, University of Toronto Press has roughly a four-year or five-year cycle for books like this. And we have a couple of chapters that deal with parties and elections and electoral systems. And so we wait for an election to pass and use the results of that election, that is a federal general election, to update the...

sort of the political arithmetic about how the electoral system worked and what kind of parliamentary representation it actually produced as a result of the most recent election. So that students have a fairly recent set of electoral data to think about as they try to understand our electoral system and the party system and the operation of the House of Commons.

Ian Van Harten (07:58.287) Hmm. Yeah, and so we're all eagerly anticipating the next election, which could happen, I don't know, anytime, almost.

Tom M.J. Bateman (08:06.222) Almost. We have fixed election date legislation in Canada, which is actually a fairly dumb idea. But according to that legislation, we are to have an election in late October of 2025. But that is all subject to the government deciding not to recommend dissolution of Parliament before then, which it can do. And sometimes it will.

have to recommend dissolution if the government fails on a vote of confidence. And that is what the Conservative opposition is threatening. And that's now what the NDP is threatening and also the Bloc Québécois. So for that reason, we may indeed see an election in the spring of 2025.

The Importance of Political Education

Ian Van Harten (08:54.895) So I want to touch on there's sort of a public education aspect of this book, The Canadian Regime. And you have a, there's a line in the preface. I'll just read it here. It's, of all the regimes, the democratic regime is in greatest need of a politically educated public. Now we see that term regime, which I hope we will talk about a little bit later, but

If you can focus on this politically educated public aspect. And it may be an obvious question, but can you talk about why, why is this important and why is it especially important in a democracy?

Tom M.J. Bateman (09:36.738) I know it's a very important and fundamental question. And I think the basic point is that democracy says that the seat of sovereign authority rests in the people, the broad population. And that broad population sort of has a subset of citizens who are eligible to vote. And over

the previous two or 300 years, the group of persons eligible to vote has expanded. And now it's almost at its greatest extent. So we have mass democracy. know, ancient democracies allowed the people to determine the course of their regimes, but the electorate was really quite small. And now we've said, nope.

Democracy is a really great idea and we think the electorate should be as broad as possible. Some people say it's still not even broad enough that we need to have persons under the age of 18 eligible to vote and that maybe even some non-citizens should be eligible to vote. We used to exclude from the franchise judges and persons jailed for criminal offenses.

Even those limitations have now been repealed. So we have a very broad electorate and we say that they have a determinative influence on the composition of our electoral bodies. the idea of political representation is something we should spend more time on later. But for the moment...

What this means is that everybody, you and I, we generally have a pretty good idea what our interests are. You we know what we want. And sometimes, maybe most of the time, we have a pretty good idea of how to get what we want. The problem is that we usually calculate our interests in exclusion.

Tom M.J. Bateman (11:58.432) from the interests of other people and also to the exclusion of the effect of our interests on the broader political community. political decision making requires the management of a lot of different factors and variables. And what it means is that people have to think about their interests in light of the interests of others.

and in light of the broader sort of sustainability of the system, which would serve the interests that I would like to assert. And also I have to think about whether my interests are actually compatible with the public good. And this requires me to sort of get outside of myself and think about

Ian Van Harten (12:49.327) Hmm.

Tom M.J. Bateman (12:57.646) the situations of other people and of the nature of the political community in which I live. And it also requires me to think about the institutions in which decisions are made about my interests, your interests, the public interest, the future, and so on and so forth. So that means that

If this is gonna work, if all of us actually have a share in the composition of the House of Commons, and we're the ones choosing among the candidates offering their positions to us to choose among at election time, like maybe we need to know something. And we need to know about the consequences of our decisions and the consequences of other people's decisions.

And we need to know how these get reconciled or whether in fact there are too many incompatible demands made on the system, in which case we're gonna have to choose among them. And so we need to know data, we need to know information, and we need to do some basic math sometimes about balancing budgets, the cost of a GST break for the...

the general revenue fund, all those kinds of things. But we also need to begin to distinguish our own sense of our own good from that of the good of others and the public good as a whole. Because in life and in politics,

we sometimes have to subordinate our own interests to those of other interests we want to satisfy or other interests that other people hold for themselves. And this requires education and it requires a sense of kind of restraint, actually.

Ian Van Harten (15:18.127) Hmm.

Tom M.J. Bateman (15:18.676) And so political education, I think, is kind of a training in both of those aspects of democratic citizenship. I don't think it was an accident that many of the great old American cities would have huge libraries right in the center of them, which had tremendous practical but also symbolic significance because the...

these beautiful, stately buildings communicated to the people that education actually is important. And constitutional thinkers in the democratic tradition have always tried to emphasize the development of a deliberative capacity among citizens. The ability of people to deliberate, to think about

the public good, what is required to advance it, what is required of me to advance that education is a part of it. Here's just another small example of what I'm getting at. One of the most important democratic institutions that we often overlook is the jury. The jury in criminal cases or sometimes in civil cases. And what happens is that

Ian Van Harten (16:41.199) Hmm.

Tom M.J. Bateman (16:47.934) If you are a citizen of this country and you, you know, pay taxes, live in an address, there's a really good chance at some point you're going to be called for jury duty. And it's not a right. It's an obligation. Like you have to. And, and furthermore, you're going to have to think about the fate of the person who is the accused and

This is going to require concentration, acuity, and the setting aside of one's own prejudices to look at the evidence put before the court. And this requires a degree of education as well as a degree of self-restraint.

Everybody sort of gets what the jury is about, the need for impartiality, for independence, for making a decision based on the evidence put in court, not based on my prejudices or what I read in the news and so on and so forth. Well, in some ways, democratic citizenship is just that, but now magnified. so the quality of a democracy does depend in great measure on the quality of the citizens who comprise it.

Ian Van Harten (18:01.22) Hmm.

Ian Van Harten (18:12.205) Mm-hmm. Well, so, how, in your view, what is the quality of our, Canadian society in terms of how politically educated we are and how restrained and aware we are of all these things?

Tom M.J. Bateman (18:19.726) You

Tom M.J. Bateman (18:28.982) I'd say we're better off than many. Rates of literacy in Canada are very, very high indeed. we have, in principle, a very good comprehensive system of public education. I would say that education

in the history of the country and in the institutions of the country in the K to 12 stage of education may have slipped somewhat. teachers, I think, have all kinds of demands made upon them to do this and to do that and so forth. They have only so many hours in a day to work with. And for reasons that are not entirely clear to me,

the study of history and political institutions has slipped a little bit to make room for other priorities. And so when I have students in my classes, first and second year, yeah, they actually don't know very much about their country. And many students are new to the country, and so they can be forgiven for not knowing a great deal about the country in which they are studying.

But for those born in the country, this is really quite something. And for the reasons I just described on the political education front, maybe a bit concerning.

Ian Van Harten (20:08.367) Could you talk a little bit about what would the consequences be of not having a politically educated public? What kind of things do think we'd start seeing in terms of our society?

Tom M.J. Bateman (20:20.696) Well, I would say one possibility is withdrawal, that people will simply opt out of political participation, not knowing what's going on, maybe thinking, the cost I will have to incur to get up to speed here to participate intelligently is just more than I'm prepared to spend. so there's that. And political scientists, you know, pay attention to

to turnout rates at election time. And in Canada, we have a voluntary franchise. So you have maybe a right and an obligation to vote, but you're not required to vote. That's different from other places like Australia. And so when voting is voluntary, you can decide not to. historically we had relatively high turnout rates.

in the upper 70 % range at the federal level. And they slipped down into the low 60s sometimes. They've popped up in 2015, I think it was up to 68%, and then they sort of slipped back a little bit. So we have a good share of voters who don't consider it important to vote. So that's one possibility. The other possibility is that...

people who sort of lack kind of an intellectual preparation for electoral participation may be subject to the appeal of the demagogue, to the slick pitchman who uses well-tried propaganda techniques to whip up support and...

Ian Van Harten (22:01.071) Hmm.

Tom M.J. Bateman (22:14.126) allow people to be intellectually more lazy, really. And, you know, some of these people will hit some very common sort of rhetorical notes that strike a chord with sections of the electorate and they can sort of build an electoral coalition, whip up support and win an election. And those who voted,

will maybe have some satisfaction in thinking that, okay, this is like a great guy that we just elected. He told us he's gonna solve all of our problems. That fixing this and fixing that is just like flipping a switch on the wall. So great, now don't have to worry about anything anymore because the big guy's in charge now, so I can just go back to my other life. So that's also a problem that uneducated citizenry can be.

can be vulnerable to the appeals of the demagogue. And historically, democracies were always criticized for their vulnerability to the demagogue. And the demagogue is not that far away from the tyrant. so that's a vulnerability for sure. And we...

Ian Van Harten (23:30.723) Mm-hmm

Tom M.J. Bateman (23:41.482) are seeing some of that, of course, in our contemporary politics. Maybe not as much in Canada, but we're seeing it in the United States and some other countries too.

Understanding 'Regime'

Ian Van Harten (23:49.783) Mm-hmm. Yeah, so there's a lot on the line here, I guess. But yeah, let's try to move the needle on this stuff a little bit if we can, or as much as we can. So we, so yeah, I mentioned this term, the regime, in that quote a little bit earlier, and it's also part of the title, The Canadian Regime. And I guess this is a pretty important idea in the book. So can you talk about what is a regime?

Tom M.J. Bateman (24:20.238) Yes, it's good. It's a good question. And we don't use the word very much anymore in contemporary political science. And that's a bit of a shame. In fact, we co-authors in recent editions have revisited this idea because we use the word regime in the title, but we really don't discuss the idea at length in the book itself. And we hope this is going to be corrected for the

edition that's soon to come out in 2025. But the idea of the regime goes back to ancient Greek political thought. it means the principles of like, what are the fundamental principles of the political order? And in democracy, a fundamental principle of the political community is the idea of equality.

And that's almost like a a lodestar. It's like the North Store of democracy, equality, big principle. And we expect that principle to be reflected in the institutional fabric of the democratic order. And so, for example, the expansion of the franchise I discussed a little while ago would be an example of how the institutional character of the

the regime reflects this fundamental principle. But in addition, the principles are reflected in the habits and the mores and the moral commitments of the citizens. And so when the classical political thinkers thought about a regime, they were thinking of a fundamental alignment among

principles of the regime, the institutions of the regime, and the mores of the people making up the regime. so a regime is about the people as much as it is about the principles and the institutions of the regime. And you can say that in Canada, we pride ourselves on being highly democratic.

Tom M.J. Bateman (26:48.672) and that Canadians as a group think the democratic idea of equality is extremely important. so like the habits, the language, the manners of Canadians would reflect this idea of equality. And so you can think of a couple of examples where

where as the democratic sort of ethos permeates the Canadian society more and more, we become more and more uncomfortable with titles and with calling someone Mr. Smith rather than Bob. And it used to be the case that younger people would obviously address their elders.

by mister or missus or miss or something like that. Now it's very common for young people simply to refer to an elder as, know, Bob or Susan or something like that. Yeah, that's the idea of equality kind of working itself out in the mores of the country. And so the ancient Greek thinkers said, yeah, this is obvious. And

a regime won't really work well if there is not this kind of alignment of the mores of the people with the institutions and the principles of the political community. so in an upcoming edition of the Canadian regime, we're going to pay a little bit more attention to this idea of the regime encompassing the mores or the manners of the people making it up.

Ian Van Harten (28:41.421) Mm-hmm. Yeah, it's so interesting because it kind of gives you the idea that government isn't a top-down creation. It's sort of more bottom-up, like it responds to the character and the mores of the people that make it up.

Tom M.J. Bateman (28:56.022) Yeah, yeah, excellent point. And in fact, I think it's even kind of dialectical. I think it goes back and forth that the institutions sort of have a formative effect on people. And then the the ideas of the people, the manners and mores of the people also kind of shape and influence the the nature and the operation of the institutions. so another.

example, just as an aside, would be the Senate. the fathers of confederation spent more time discussing the composition of the Senate than they did any other institution actually in Quebec in 1864 when they were thinking about forming a Canadian confederation. But anyway, what they came up with was sort of like an aristocratic body, because what they said is that a senator cannot sit

unless he, and until the 1930s it was he, owned a minimum amount of property and possessed a minimum amount of wealth. And so we proceeded with the Senate on the assumption that it's actually good to have a property qualification for members of the Senate, because if you own property, you will have a certain sensibility

that will have a salutary impact on the government of Canada because the Senate would consider all the legislation that the House of Commons would. that kind of aristocratic idea came to be sort of kind of awkward in connection with the democratic sort of impulse affecting the composition of the rest of the regime. And...

Now, the property qualification operates for most people as a kind of an embarrassment. It's still there. Now, the property qualification in the Constitution Act 1867 was stated as a nominal amount of money and it wasn't inflation adjusted. So it's still only like a couple thousand bucks of property, which is like nothing, but it's still there. But...

Ian Van Harten (31:01.668) Hmm.

Tom M.J. Bateman (31:22.894) Yeah, we say, okay, whatever. That's not that important anymore. Well, actually it was important in 1867, but now we're embarrassed because we're so egalitarian. And that's how the mores can begin to sort of permeate and influence the character of the institutions.

Ian Van Harten (31:31.695) Hmm.

Ian Van Harten (31:40.367) Yeah, it's interesting too, because when you think about government in the way that you're talking about, like mores and these shifting ideas, it's a very dynamic and changing process. You know, it's not like, okay, we have this system and it's in place and we wrote it up, written it all down. Now we, and then we change them, but like they kind of change, they evolve almost on their own.

Tom M.J. Bateman (32:04.3) Yeah, I think that's true. That's true. this leads to an important point, which is that we live not only in the age of democracy, but in an age of progress. And we think that the passage of time is coincident with kind of like an arc of justice and progress and betterment.

And so that whatever change happens is good because history always operates in a progressive direction. This is kind of new and it's kind of the idea is the child of the enlightenment basically about 300 years ago and certainly not widely held among the classical political thinkers because the alternative view is that regimes operate according to a cycle and they

They sort of develop, they flourish, they peak. And then the principle that animated them up to a certain point becomes the principle that begins to corrupt them and degrade them. And it produces their eventual decline. so, you know, the people who want a leader to take care of them, okay, that's great.

If you're lucky, maybe you'll get a leader who will take care of you. So you vote that person in, but then that person gets in there and stays in there and really likes being there, enjoys the power, and then begins to do things to satisfy the tyrant's interest, not the people's interest. so a democracy that...

whose people begin to look to a leader who will take care of them and lead them and so forth, are going to end up with an autocracy, with a tyranny in the classical understanding. And that will be the ruin of the democracy. And the classical thinkers said, yeah, this is like the cycle of things. This is how goes. so that is a dynamism. Things are always changing and so on. But don't confuse that with progress all the time.

Democracy and Its Vulnerabilities

Ian Van Harten (34:27.587) Hmm. Interesting. So let's zoom in on some of these principles of our regime. So there's, I think there's three that you talk about in the book. So the first one is democracy. And I found it really interesting reading this section, just because I find when

Tom M.J. Bateman (34:28.322) Not all changes progress.

Ian Van Harten (34:55.149) you hear people talking about democracy on TV or on the news. It's always, democracy is always a positive thing and more democracy is always better. But as you kind of been highlighting a bit earlier and just now, democracy kind of has its vulnerabilities and it has its dark sides to it. Can you just help

help us, how should we be thinking about democracy that gives proper consideration to the whole picture of what democracy is and what these vulnerabilities are?

Tom M.J. Bateman (35:32.418) Great question. Chapter one of the book contains a very small typology of regimes according to thinkers like Aristotle and Plato from ancient Greece. And they thought that democracy was one of the worst regimes, actually. And that...

If you could find if you could find one virtuous person

Like, give them the power. Like, there, we're done. We have the person who understands, who embraces the public good, who is capable of personal restraint, who can subordinate his or her interests to those of the good of the whole political community. And this person has wisdom and...

prudence and caution. Like, like if you can find that person, like give that person the power. Make, make this person the king. And now there are a lot of pretenders. There are a lot of people who say, yeah, I'm that guy. Like I'm great, you know, pick me. And of course, what, what, what Plato said is, beware the person who is applying for the job.

Ian Van Harten (37:08.623) Hmm.

Tom M.J. Bateman (37:08.782) Typically the best person is going to have to be cajoled and convinced to take this on. Don't fall for the pitchman. But of course, yeah, and so you can see the problem with this view that the best regime is like the monarchy, the regime led by the one good person. You got succession problems, first of all, of course, but there are a lot of...

Like, how do we know who's gonna be the good person, I guess? It's almost like you have to be good yourself to recognize a good leader. And so there is that sort of problem. anyway, like the best regimes would be three sort of in number, a monarchy, an aristocracy, which is the rule of the few who are excellent.

Aristoi is the Greek word for excellence. And then it turns out the Greeks thought that democracies could not be good regimes because democracies are ruled by the many. And in ancient Greece, the many were very poor, very uneducated and unable, nevermind unwilling, but unable to

to deploy the kind of sort of intellectual skills to understand and advance the public good over and against their own private goods. And the ancient Greeks had a very low view of democracy because they said, the people will just, they'll vote their stomachs and they'll vote for whoever will fill their stomachs.

That's basically how it is. So our challenge has always been to say democracy is actually better than the risks that one must take with aristocracy, which can become simply an oligarchy, kind of like the post-Cold War Russian regimes leading up to Putin.

Tom M.J. Bateman (39:37.09) and better than, and more reliable than monarchies, which can become tyrannies. And so you can think of the Assad family in Syria as an example, if you like. But we've got to do something to make sure that democracies don't operate to their own destruction.

And so it means a couple of things. Democracies can be good, but they need to be mixed with the elements of the other regime types. so what we do, I think, are a couple of things to try to save democracy from itself. One thing is increase the wealth and the education of the citizens.

Because if I have a modicum of wealth, that means I'm not spending my time hungry and looking for my next meal. Like we need minimum measures of resources to afford us the leisure to think about things beyond ourselves. The Greeks were all about leisure, but they understood leisure to be a state.

where you are free from the requirements of bodily necessity. And freedom from hunger would be like the most obvious one. Because when you and I are really, hungry, we actually can't think of anything else except how to fill our stomachs. And how about living a life like that? Okay? So what we try to do is we try to think about creating wealth for all so that each of us can have the leisure to think about

Ian Van Harten (41:11.823) Hmm.

Ian Van Harten (41:20.195) Mm-hmm.

Tom M.J. Bateman (41:33.358) public things. And then public education is the next piece of that so that we can actually be liberated from the slavery to our own desires. We can actually think about our desires rather than act upon them automatically all the time. But then the other thing is, and this is like a really big important innovation really, and that is to introduce the idea of representation into democratic life.

so that we on occasion can have direct democracy, let's say in the form of referendums, where all the electors as a group can vote on a certain public policy measure. But in the main, what we do is we will have occasions when the broad electorate will vote for people who will represent them in the legislative halls of power.

And what this means is it incorporates kind of an aristocratic principle into democratic life by setting up circumstances in which candidates will present themselves to us as the most excellent choice that the citizens can make for their good and for the good of the whole. And so in principle, an election in Canada

is sort of a, it's an election of the most excellent leaders on our behalf. And that is a way to kind of incorporate the aristocratic idea into democratic life. And so the solution here then is to mix some of the best elements of the other regime types, rule of the one, rule of the few, into the rule of the many.

to prevent democracy from its inevitable slide into dissolution or tyranny.

Ian Van Harten (43:40.321) Mm-hmm. And so there's one other aspect of this that I'm hoping we can talk about for a bit, and that's how the fathers of confederation were thinking about democracy as they were putting our constitution together. I guess there were some dangers that were on their minds as they were going about this. Can you talk a little bit about that context and what they were seeing and what they were thinking about?

Tom M.J. Bateman (44:08.908) Yes, there's an awful lot of history implicit in your question, so I'll try to keep it brief. But in the 1860s, the United States was already 60 or so years old, and it was a vigorous, ruckus democracy. And meanwhile, the British colonies of British North America

New Brunswick, Nova Scotia, the United Problems of Canada, which was Canada East and Canada West. they became eventually Quebec and Ontario, as we now know them. And then there was, of course, Prince Edward Island and so forth. And these were Crown colonies and slowly acquiring more autonomy from the imperial power of Great Britain.

but governors were still sent over from Great Britain to sort of run the place. In 1758 Nova Scotia got a representative assembly and this happened in the 1790s in New Brunswick and 1791 in upper and lower Canada. So they were moving along kind of at a slower pace.

And it was very clear that the electors elect representatives to the legislatures. And furthermore, the legislatures themselves don't have very much power. They can recommend things to the governor and to a governor's appointed council in the colonies, the British Crown colonies, but the elected chambers actually don't have real power.

over the purse or other aspects of public policy. But there was a movement to change that. And the democratic idea was infectious. And in fact, many people felt that it was inevitable, that the course of history is toward more democracy, not less of it. And so the question for the Fallas of Confederation is sort of how to manage this.

Tom M.J. Bateman (46:36.866) without letting democracy kind of repeat its historical course, which means that they fall into dissolution and autocracies and so forth. And then, so there's that. And then the other piece was that people like McDonald and Cartier were close observers of developments in the United States. And there is no modern democracy more

democratic and egalitarian than the United States at that time. But look at that. The United States was embroiled in civil war from between 1861 and 1865, right around the time the Canadians were thinking about fashioning a confederation. And among the diagnoses of the American problem was the conviction

among McDonald and company that the American democracy is actually too democratic, that it's too unrestrained, that it's too popular, that it's out of control. And that we need to look at the United States as a cautionary tale and democracy, good, but not that kind of democracy. And their clear preference was for

Ian Van Harten (47:43.343) Hmm.

Tom M.J. Bateman (48:05.262) parliamentary democracy, which was representative and which was a much more tempered, moderate form of democratic regime, emphasizing the idea of representation, periodic elections, but no regular or systematic recourse to the people.

as such for the making of public policy decisions. So a thorough going parliamentary representative system. And they thought that this among other things would shield Canada from some of the diseases associated with a more full blown democracy. So that's sort of what we ended up with, a parliamentary democracy.

Ian Van Harten (48:53.583) Hmm.

Tom M.J. Bateman (49:03.874) which preserved quite a bit of power in the executive branch. And the executive branch at that time really did mean the governor general of the country, lieutenant governor of the province, sort of in close discussion with the first minister, the prime minister at the federal level or the premiers at the provincial levels. And that the...

The legislative assembly would have power, but in a kind of a measured, moderate way, that would avoid some of the craziness of the United States.

Ian Van Harten (49:46.787) Mm-hmm. And I guess one small example of the differences would be in the states, they directly vote for the president, right? And in Canada, I mean, it's interesting because this is kind of evolving and people don't really think about it this way. But in Canada, we don't directly vote for who the prime minister is going to be. We just vote for individual representatives who will go into the House of Commons and then they kind of figure it out.

Tom M.J. Bateman (50:11.982) Yeah.

Ian Van Harten (50:16.143) But even in that, kind of see the influence of the states is still kind of present with us and pushing us in different directions too.

Tom M.J. Bateman (50:24.344) You know, I've often thought that politically speaking, Canada is kind like a floating island out there in the middle of the Atlantic somewhere between Europe and the UK on the one hand and the United States on the other. And so politically and institutionally, and in terms of political thinking, we sort of float sometimes closer to the UK and then sometimes like really close to the United States.

And, you know, like we're just kind of like at sea, quite literally. And sometimes we'll adopt principles from the American regime, which actually are not consistent with those of the British parliamentary regime. And we sort of, you know, try and work it out somehow, but it doesn't actually work out that well and so on. And then that's just on the institutional level. But in terms of our political culture, like our manners and mores, we are

Ian Van Harten (50:59.119) Mm-hmm.

Tom M.J. Bateman (51:23.896) hugely influenced by the United States and ideas that come from there, but with institutions that are not American at all. And so part of the dynamic character of Canadian politics is the operation of the ideas and the cultural mores and so forth from one place interacting with the institutional fabric.

coming from another place and kind of making it work somehow. yeah, that is our destiny, really. It's our fate. It's a geographical fate, but that geographical fate influences the character of the regime that we're trying to work out.

Ian Van Harten (52:14.191) And we're seeing it kind of in a big way right now, just with this whole conversation. I'm sure you've been seeing this, this idea being tossed around of Canada being the 51st state or, or, you know, joining some economic union with the States or something like that. So yeah, it's very much ongoing.

Tom M.J. Bateman (52:32.492) Well, I know that's, I mean, that's just a, I think it's mainly a taunt by Donald Trump just to make us kind of upset or something. And maybe it's more between him and Justin Trudeau. It's really hard to say, but why the United States would want Canada kind of is a mystery to me because what they want from the country is what they're already getting.

Ian Van Harten (52:44.975) It's working, I think.

Tom M.J. Bateman (53:00.366) through trade arrangements and so on and so forth. So anyway, I think it's just kind of weird, but that is a distraction from a fundamental influence that the United States has had and continues to have on Canadians. We read American literature, we watch American stuff, we listen to American music.

We follow American politics. We vacation in the United States. We have relatives in the United States. Many of us move to the United States part-time or full-time. The president of the CBC has an apartment in New York for heaven's sakes. Like, what else do need to know? But by the way, on the election of our chief executives,

In principle, the Americans do not directly vote for their president. But in fact, in practical reality, they do. And that's because the American system evolved from an indirect election of the president, because it was supposed to be that the electors vote for members of the electoral college.

and then the electoral college members meet and themselves vote for the president. And the intention in 1787 was for the electoral college to be a group of independent minded people who will decide themselves who the president will be. Not bound to the electors who elected them, but over time the democratic idea really did sort of dominate.

Ian Van Harten (54:28.536) Mm-hmm, right.

Tom M.J. Bateman (54:56.622) I think the operation of the electoral college and then now electoral college members would be committed to this or that candidate and then they would be elected by the voters on that basis and then and that's how sort of direct election of the president has come to be. But you are absolutely correct. The Canadian prime minister is not elected by the people.

the Canadian prime minister is actually appointed by the governor general. And the person selected to be the prime minister is just an MP, like every other MP who had to win a seat in one of 338 writings somewhere in the country. Absolutely correct.

The Principle of Equality

Ian Van Harten (55:46.735) Cool. Well, yeah, so there's more we could say about democracy, I'm sure. But let's move on to the second principle of the regime, is equality. So you've kind of touched on this a little bit already. So we have political equality that's protected, but this is different from economic equality. So can you talk a little bit about

I know that tension between those two maybe, or just kind of how, how we think about equality in, in Canada.

Tom M.J. Bateman (56:20.056) Yeah, yeah, it's a great, great, great problem. And what I said earlier was that participation in the political life of the country requires a modicum of leisure and a modicum of leisure requires some liberation from natural biological necessity. And that liberation

requires the possession of certain amount of resources, money if you like, so that I know that I'm not gonna be hungry. I know that I'm not gonna be homeless. Because if I'm starving and I'm homeless, voting and matters of public policy are like the last thing on my mind. And so there is a sense in which political equality, which undergirds democracy,

requires some degree of social or economic capacity. Like a floor, a floor capacity among all people. And we generally think that our commercial capitalist economic system,

generates great wealth and if you look at it in historical and comparative perspective, no question Canada is one of the wealthiest countries on the planet and it it distributes the the wealth generated not by any means equally but Not Radically unequally either

though there is always imperfection and there are always cries for greater egalitarian distribution of economic resources. But anyway, so some floor of economic capacity is required, I think, for democracy to work. political equality in terms of one person, one vote, each person has basically the same

Tom M.J. Bateman (58:43.5) determinative influence on the composition of the House of Commons as anyone else. Furthermore, equality in terms of the rule of law, which is that each of us has equal standing before the law. Each of us is subject to the law and that doesn't matter whether you are the prime minister, whether you're a school teacher, a student, a child.

an accountant or a bus driver, the law applies equally to all persons. That's another kind of expression of equality. And that's sort of what is institutionally very important for the Canadian regime, that understanding of equality. No one is above the law. And that the franchise is broad and equally distributed.

And then on the social equality, that's a little bit different because we want the floor of economic capacity, but to enforce social equality, which I assume would mean an equalization of income per year,

That would require, first of all, a group of economic and social engineers to fashion and enforce and maintain that rigorous equality, which means the enforcers sort of have a directive role above the rest of us. And so in that sense, the ideal of equality is kind of self-defeating. But of course, probably the other thing that would happen

is that the more rigid the equality, the economic equality we enforced, the poorer we would all be. And I think the history of the 20th century battle of the economic systems, egalitarian communism versus inegalitarian capitalism suggests that the most rigorous equality also coextends with equal poverty.

Tom M.J. Bateman (01:01:06.37) But even in the communist egalitarian states, the party elite, they did okay. They always did okay. but everybody else, not so much. then the other thing, of course, is that if we did enforce rigid socioeconomic equality in Canada, then the people with the wealth and the wealth generating capacity and so on and so forth would simply leave.

Ian Van Harten (01:01:13.039) Hmm.

Tom M.J. Bateman (01:01:36.546) You simply leave. And, which means that to prevent them from leaving, we would have to curtail their liberty. And this is the other shoe to drop, that the Canadian regime favors liberty as well as equality. The problem is the more equality you want, the less liberty you are likely to have. And so it's a difficult

Ian Van Harten (01:01:37.391) Right.

Ian Van Harten (01:02:02.447) Hmm.

Tom M.J. Bateman (01:02:06.612) awkward but necessary balance of competing principles that we have to achieve, enforcing the idea of equality as well as safeguarding the principle of liberty.

Liberty in the Canadian Regime

Ian Van Harten (01:02:20.239) Hmm. Yeah. It's so interesting to see how, you know, I think most people just think about equality and democracy and liberty as just these purely, like I was saying before, just purely positive ideals that we should be striving for. We're not always aware of how, you know, they, they have these, other kind of, vulnerabilities to them and also that their intention with each other often. So.

Tom M.J. Bateman (01:02:46.102) I know that and here is maybe a moment for me just to offer a criticism of contemporary political debate. A lot of political debate is actually religious in character. It's actually not political in character. It's highly ideological. It's deeply emotional. And it's not in the form of a discussion in which evidence and argument are welcome. Instead, it's shrill.

And if you don't agree with me, it's because you are a bad person. You are evil. And there's way too much of this going around, and it's going to destroy us if we let it get out of hand. so the problem is that when we have to think about these necessary and difficult conflicts between principles, equality, liberty, among them, but there are many,

Like it's important to be kind of reasonable and thoughtful about these things. And that's what the deliberative ideal of democratic citizenship is all about. The ability to turn down the volume and the emotion and think about argument and evidence. But it turns out that's a challenge many people are unwilling to meet.

And so we get very, very shrill insistences on equality. Yes, this is it. This is it. And we're just not interested in listening to the problems or the alternatives.

Ian Van Harten (01:04:32.495) Yeah, great point. Let's talk about liberty. So what is liberty as it relates to the Canadian regime?

Tom M.J. Bateman (01:04:45.666) Yeah, you know, the fathers of Confederation were Victorians and 19th century Britain was, you know, in many ways the age of liberalism and liber is Latin for free. you know, among the greatest exponents of the idea of liberty was John Stuart Mill, a political thinker.

as well as an MP for a time. And it's kind of a disparaging kind of title, but in a way he was like the public intellectual of his day and a very prolific and persuasive writer. And he wrote an essay, I think it was 1859 called On Liberty, and it should be required reading for every undergraduate.

And I do my part on that that front. I usually sort of shoehorned it into one or another course that I teach. And this is one of the most trenchant and influential arguments for maximal individual liberty consistent with civil society. And...

His argument was a very utilitarian progressive argument, which is that individual liberty is the key to social progress. And that only if my exercise of liberty of thought, of speech and action or experiment in living, only if one of those expressions of liberty

harms another person shall the exercise of that liberty be limited. Otherwise, we should have as many experiments and thinking as many modes of thought as many theories, however eccentric, disturbing, disconcerting, novel they may be. Because from that full panoply,

Tom M.J. Bateman (01:07:09.306) of the exercise of individual liberty, will we discover what is the best for humans? And that is how we get progress, according to Mill. And so for him, liberty is almost an unmitigated good, whereas for some of the other more conservative critics of the day, too much liberty really is a bad thing.

because people are more prone to use liberty for ill rather than for good. So that was like the big debate of the 19th century. And the Canadians have pretty much, I think adopted the idea of male here on the importance of individual liberty. And it took us quite a long time to entrench

a charter of rights and freedoms. That was in 1982. But even before then, our legal tradition did preserve a great many features of Mill's theory of individual liberty. That there are limits to what the state can do and that a regime characterized by the liberty of its subjects.

is a good regime. So we're talking about individual liberties in the form of legal rights, the presumption of innocence until proven guilty in a fair and impartial trial, the freedom from unusual treatment or punishment upon conviction of an offense. We're talking about the right to freedom of religion.

freedom of speech, freedom of assembly, freedom of association, and freedom of economic exchange and employment as well. Again, even Mill observed certain limits on the economic front, but the presumption, the baseline, is individual liberty.

Ian Van Harten (01:09:21.775) Mm-hmm. And so Mill's idea about liberty is, me if I'm wrong, but it's slightly different. There's kind of another tradition when it comes to liberty that it's sort of this God given, just truth or right that we have. And I think that's more in line with the American tradition, right? Like, is there important differences with how those are manifested or are they kind of equal to the same thing?

Tom M.J. Bateman (01:09:36.204) Yeah.

Tom M.J. Bateman (01:09:47.33) Well, yeah, exactly right. I guess the question is, like, why? Why are we by nature free? Why respect individual freedom? People, a lot of the time, are just a real pain in the neck, and they use their freedom in the stupidest and most unhelpful ways to themselves and to others. And so the argument is that

No, actually, we need to control people's freedom. Actually, that's how we're going to keep the regime from flaming out and so on and so forth. Well, part of the argument then is, well, is individual liberty a consequentialist idea? By which I mean, do we value individual freedom for the results that it produces for individuals and for society?

Or is it a different kind of argument altogether, which is that it's in the nature of the human to be free. Like it's, it is, what it is to be human is to be free. Humans are not animals. They are not governed by instinct. Humans can think about things. They can plan.

they can debate the nature of their living arrangements. Dogs and bees are sociable, but they do not question how they live. Bees live in a monarchy and they don't quarrel with it. They don't even think about it. Well, that's not human. And so the argument is that humans by nature

just by being the kind of being they are, are free. if a regime is to reflect and honor that nature, that regime has to safeguard the exercise of human freedom. And there's a Christian tradition which argues,

Tom M.J. Bateman (01:12:13.708) that humans are created in the image of God, that they have a dignity or a worth that shall be recognized by civil authorities, and that human freedom is among those qualities that superintend human liberty. There's a natural right tradition.

in the Church Fathers and St. Thomas Aquinas and others have been extraordinary.

thinkers on this understanding of the human. even as we read in people like Martin Luther King Jr., his argument was that slavery is not just a convention, like a public policy that I don't like. That wasn't his argument. His argument

is that slavery is an offense to the idea of the human. It's an offense against natural law. And natural law is embedded in the fabric of the cosmos. And natural law is kind of like the standard against which human positive law needs to be measured. And he says, when you look at the natural law and compare

Ian Van Harten (01:13:51.727) Hmm.

Tom M.J. Bateman (01:13:56.654) compare the history of the United States to it, there's a terrible chasm. And so he writes this letter in 1963 from Birmingham jail, quoting Thomas Aquinas on natural law, like it's an extraordinary document. so the American tradition has picked up some of this extraordinary legacy of thought, which says that human liberty

Ian Van Harten (01:14:09.199) Hmm.

Tom M.J. Bateman (01:14:26.698) is kind of grounded in a notion of human rights that itself is grounded in a trans-historical idea of human nature, which any decent polity needs to recognize.

Ian Van Harten (01:14:43.991) Mm-hmm. Cool. Well, I can't remember now if rule of law is part of, is kind of nested within liberty or if it's kind of its own principle.

Tom M.J. Bateman (01:14:59.0) Well, it's kind of connected to equality in ways I described a little while ago, but it is connected to liberty as well because the idea of a constitutional order, any kind of decent regime, which is not a tyranny, which is not an oligarchy, is that there is stability.

that when you and I wake up in the morning, you know that, you know, like the streetlights are gonna operate, the police are gonna be out and about, that I will be fairly secure from assault and robbery and so on and so forth. And that it won't be anarchy out there.

And like none of us in Canada has lived in an environment where like you just don't know what's gonna happen to you by the end of today. Like have a look at the news coming out of Haiti these days. Or you know, think of Syria where they just had a regime change. In fact, we don't even know what the new regime is yet. But people are wondering like, okay, so what's gonna happen? Like do I keep my house?

Ian Van Harten (01:16:25.743) Mm-hmm.

Tom M.J. Bateman (01:16:28.43) Am I gonna get killed? Do I need to get out of here? What's gonna happen? What's tomorrow gonna look like? Well, you and I never think of that. We know what tomorrow's gonna look like. And it's okay. And it's okay because we are very confident that the legal order tomorrow will be just like it is today. And that means you and I can predict and

plan and execute contracts knowing that the people with whom I've contracted are going to have to meet their side of the contract or I can take them to court and get them for non-performance. so in that sense, my ability to act and to think and to plan

is based on a stable order of laws that makes it all possible. So in that sense, the rule of law is deeply connected to liberty.

What Does the Constitution Do?

Ian Van Harten (01:17:35.119) Hmm. And so I kind of want to use that to segue into the Canadian constitution and talk a little bit about some of the aspects of it. now this is a very basic question, maybe too basic, but I'm wondering if you could talk about what does the constitution do?

Tom M.J. Bateman (01:18:02.238) Well, so I guess think of the alternative to a constitutional regime. And the alternative would be Haiti right now. There is no law in Haiti. There is really no government. It's kind of like the law of the jungle. Gangs are the preeminent form of order.

in current-day Haiti. And they're in conflict with each other for territory and for access to resources and food and fuel and drugs and so on and so forth. But to the extent that a gang has any kind of solidity, then it is enforcing a type of order on a territory it controls. But that's not much order. It's actually really, really bad.

and the exploitation and the crime, the murder, the desperate uncertainty is just awful. It is just awful. And we have in contemporary Haiti something similar to what 17th century British writer Thomas Hobbes called a state of nature, which is a state of war of each against all.

And that's what a lawless environment looks like. And constitutional regimes attempt to remedy all of the terror and the uncertainty of that kind of stateless chaos. Fundamentally,

A constitution is a set of rules that literally constitute the political community. These are the rules that create and define the institutions of government. The institutions which actually produce the sub-constitutional rules or the laws that operate over a territory.

Tom M.J. Bateman (01:20:27.934) and will define the parameters of the territory within which the institutions will operate. The Constitution will define how those institutions are populated with people. Like who gets to operate in those institutions? For how long? Under what terms? What are the qualifications? How do you get rid of them? The Constitution sets all that stuff out. The Constitution will define

what powers the government institutions will have. But when they define them, they are necessarily limiting those powers. so constitutional regimes are, by definition, limited regimes. There are rules that say what the government can do and what it cannot do. And by these means,

Constitutions then protect principles like liberty and equality and so on and so forth. Different constitutions will do it very differently from others. And some will do it well, some not so much. But fundamentally, constitution is a set of rules defining government, defining the limits of government, and defining the prerogatives of citizens.

And in certain kinds of polities like Canada's, the Constitution will also set out the different orders of government. We have like a national government in Ottawa that makes laws for all of Canada. But the Constitution also says that there shall be provinces with well-defined constitutionally apportioned powers over

their smaller territorial units within the broader Canadian polity. So a constitution does all that kind of stuff. And constitutions can be written down in codes that are enforced by courts, but not necessarily. A constitution is a set of rules. Sometimes those rules can be legally enforceable rules, but sometimes they are just rules that are deeply embedded

Tom M.J. Bateman (01:22:55.55) in the attitudes, the knowledge, the sensibilities of all the actors, and everybody understands them to be supreme in character and not to be violated. And many, many rules in the Canadian constitutional fabric are unwritten in this sense, but many others are also written and therefore judicially enforceable.

Ian Van Harten (01:23:18.425) Hmm.

Conventions and Unwritten Rules

Ian Van Harten (01:23:25.219) Yeah, so I want to pick up on this, these unwritten rules and conventions that you talk about in the book. It's interesting because if you read the Canadian Constitution, which is also included in the Canadian regime of book, it's a little bit unrecognizable in terms of how it's describing how Canadian government works. And, you know, it talks a lot about the governor general.

Tom M.J. Bateman (01:23:45.166) I know.

Ian Van Harten (01:23:53.027) and all the powers that he or she has and their role. And correct me if I'm wrong, but I don't even think it mentions a prime minister. so just the point I'm driving at is these conventions make up a big part of the Constitution, but they're not written down and they're enforced in a different way, I guess, but they're subject to change as well.

Tom M.J. Bateman (01:24:03.906) That is true.

Ian Van Harten (01:24:21.965) So can you talk more about how conventions work and why they're part of the Constitution at all?

Tom M.J. Bateman (01:24:29.518) Yeah, well, our inheritance, our parliamentary inheritance is British and the British Constitution has never been written in a definite code or document in one place. The British Constitution is the product of centuries of change and development and

It proceeds on the basis of a set of well-established understandings of how things ought to work. And the Canadian constitutional tradition borrows very heavily from the British. Now, some parts of the British constitution are, as it were, written down. Like you can point to certain documents.

you can point to certain acts of parliament. And you can certainly point to lots of scholarly commentary that say, this is actually a rule of the British constitution. The critical point is that there is not one single document entitled, Judicially Enforceable Constitution like that. So the British constitution is a scattered thing.

embodying legal rules, but also these kind of conventions or traditions or customs or principles that all the actors understand themselves to be bound by when they operate in the institutions of British government. And it sounds like crazy and haphazard, but actually it works. It works surprisingly well.

Ian Van Harten (01:26:21.995) Mm-hmm.

Tom M.J. Bateman (01:26:28.27) And for some reason, we think that it's really important to write everything down and to stick to it and so on and so forth. We want to point to the black letter law and say, there, that's the rule, that's it. But you know what? It's a chimera. This is an unattainable goal. You are never gonna be able to point to a rule on paper that describes the reality.

And every written constitution that is judicially enforceable merely gives huge discretion to courts to interpret those words in ways that seem sensible at a particular historical moment and in certain circumstances of a particular

factual dispute. And so even even when you have a judicially enforceable Constitution like the American Constitution, it's not good enough to read the Constitution. You have to look at two things basically what the courts have said about the meaning of the provisions of the Constitution. And also you have to look at how political actors have come

to act on the basis of the Constitution, whether their action is strictly in accord with the Constitution or not. Now in the Canadian case, you are absolutely correct. Our Constitution Act 1867 reads like we've got, like the governor general in charge of pretty much everything.

Ian Van Harten (01:28:24.206) Mm-hmm.

Tom M.J. Bateman (01:28:26.242) And the reality is completely otherwise. What in reality is the case is that the governor general acts on the advice of the prime minister in almost every instance of decisions that are made. The governor general gives royal assent to legislation, which means that the governor general can veto anything that comes to her.

from the House of Commons and the Senate. The fact is the Governor General will not refuse to assent legislation put to her for her signature. The Governor General appoints judges to Section 96 and Section 101 courts in Canada, Supreme Court of Canada, Federal Court, Tax Court, and the Provincial Superior Courts. It's the Governor General who makes the appointment. The Governor General will...

never make such an appointment without the advice of the prime minister who has the prior consent of cabinet. So that's how it works. It works surprisingly well because everybody understands the rule and considers themselves bound by it.

What it means in a way is that we have both solidity and adaptability because when circumstances change, the meaning and application of an unwritten constitutional rule can also change. because the country changes, things happen and a constitution is both permanent

but it's also kind of grounded in conditions and mores that are like the basis for constitutional government. So it is a dynamic thing, as you mentioned earlier, but it's dynamic with nonetheless constraints keeping us from unending, confusing, chaotic change. And up to the moment,

Ian Van Harten (01:30:49.507) Hmm.

Tom M.J. Bateman (01:30:53.078) It's worked not too badly.

Ian Van Harten (01:30:54.615) Mm-hmm. And it's interesting how these conventions are enforced. know, if the... because it's not written anywhere that the governor general has to give their assent to a law, but if for some reason they refused it, it would be a huge scandal. So that's kind of how it's, or partly how it's enforced a little bit.

Tom M.J. Bateman (01:31:11.276) Yeah.

Well, and your reference to the word scandal is the tell in the comment, because scandal means what? That public opinion would be inflamed at the conduct of a political actor that worked outside of his or her constitutionally defined orbit. And I think this was interesting.

An unwritten constitutional rule is by definition one that is not enforced by courts, but it is enforced by public opinion, which in some ways is more powerful than a court decree. so politicians may find it in their interest to deviate from a constitutional convention on this case in this circumstance.

they better be careful because other politicians will have opinions that'll be amplified by the media. The media will be read by public opinion and public opinion can swing against that political actor very, very quickly. If the public perceive that like a settled rule is being monkeyed with.

by a political actor. Maybe we'll have an occasion later in this series of podcasts to talk about the rule of prorogation of parliament. We had a couple of really interesting situations where a prime minister sought to prorogue parliament for reasons that were not really supported by the constitutional conventions.

Ian Van Harten (01:32:52.985) Hmm.

Tom M.J. Bateman (01:33:11.494) of responsible government. it was a very interesting period, this is December 2008, where we saw the interaction of public opinion, political actors and constitutional conventions kind of working. But we may be into it again, because the Prime Minister may want to promote parliament, and we'll have to see how this works out.

Ian Van Harten (01:33:34.265) Mm-hmm.

Ian Van Harten (01:33:41.113) Mm-hmm.

Tom M.J. Bateman (01:33:41.166) So I'd say constitutional conventions are ultimately enforced by public opinion, which is a profoundly democratic way for a constitution to operate when you think about it.

Ian Van Harten (01:33:57.151) And like you say, very adaptable, just because public opinion can change, you know, with the times. There's one convention, I think I read about this in, there's a book called Fights of Our Lives by John Duffy. It's sort of a history of Canada as seen through elections. And he talks about, I guess this was a convention back in the day that if you won a seat in parliament,

And then you were then selected to be in the cabinet. You would hold a by-election in your writing. Just the thinking being that, I'm not going to be, I'm not going to have a lot of time to spend dealing with the issues in this writing. So I want to make sure it's okay with everyone that I'm going to be in cabinet. But you know, that's not the case anymore. At some point. So that was a convention back then, but at some point it was just decided unofficially. Like this is.

much of a pain in the butt or I don't know how how it changed but it did and and no laws needed to be changed it was just kind of the public didn't care about that anymore

Tom M.J. Bateman (01:35:02.796) Yeah, I guess right. And you can imagine how other conditions would change to make this alteration viable. It may be that this is back in 1930s, I think this convention was tested and then departed from. But what has happened certainly since is that all MPs, whether they're cabinet ministers or just backbench MPs,

now have much more support given them by parliamentary budgets to serve their constituents. So the MP, him or herself, has now several support staff who can deal with practical requests by constituents. A long time ago, it was the MP, and that's it. And maybe one secretary who opened letters.

And so changes in other parts of government can make certain conventions a little bit more anachronistic and subject to change. That's true.

The History of Canada's Constitutional Independence

Ian Van Harten (01:36:17.665) well, so there's, there's one last thing maybe we can talk about to finish up here, even though I'm sure we could keep going, but, the there's, there's kind of a quirk with our constitution in that it was originally, you know, so the constitution is kind of the highest law of the land, right? And so, but in our case, the highest law was originally just an act of parliament in the UK. And then, so eventually it came to be something that we

Tom M.J. Bateman (01:36:25.966) you

Ian Van Harten (01:36:48.013) now it rests here and we own it and we control it. But can you talk a little bit about just how that worked and how that happened?

Tom M.J. Bateman (01:36:54.126) that happen? Yeah, it's a great question and this operates as a bit of a revelation for students when I when go through it.

Britain acquired significant tracts of land from France in the Seven Years War ending in 1759. And so France gave up the lands of what became British North America to the British. The British established colonies.

And they had some already linked, of course, to the colonies along the eastern seaboard. But big tracts, sort of in the interior, became British. And so these were crown colonies and outposts of British imperial rule, basically. And the British had governors establish

sort of the rules of a colony facilitated some immigration to that colony from the mother country and parliament voted monies for the support of the colony in British North America. But it was the governor basically running the show. But it was understood that in time as these colonies mature, they

they become more settled, more people come, more wealth is generated from the local population, education and other necessary institutions are established and so on and so forth, that the colonies would become more self-governing. And eventually the British said, okay, let's establish representative assemblies in these colonies. And then the residents can elect.

Tom M.J. Bateman (01:39:00.846) people to those assemblies and those assemblies can advise the governor and then maybe in time more political maturity may follow. And that's kind of roughly the pattern. And in the 1800s, there was quite a bit of agitation, especially in the

provinces of Upper and Lower Canada. And these led to the rebellions of the 1830s, 1837. And these so-called rebellions were not much like that. There are a few people got killed, but it wasn't, you know, anything terribly spectacular. But these fights were over basically democracy and, that certain advocates wanted

more power for the elected legislatures and accordingly less power for the British appointed governors. And so it was a democratization kind of movement and it became violent. The violence was easily suppressed, but the concerns remained. And the British said, okay, know, like maybe it's time for

for a new step to be taken to acknowledge the increasing political maturity of the people in these British North American colonies of ours. The British sent over a guy whose name was Lord Durham, and he wrote a really interesting report in 1838, making a number of recommendations that it would take too long to unfold here.

But one of the recommendations was for responsible government, which means that the government of the colonies really should be sensitive to the will of the elected legislatures. And so that the executive government will be tied more to the legislatures of each of these colonies. And that would mean less

Tom M.J. Bateman (01:41:28.332) direct and practical political power exercised by the British appointed governors and more political power like budgetary power, legal power exercised by people accountable to the legislatures in these colonies. And that was granted in a new British piece of legislation called the Act of Union of 1840. And that created Canada, the United Province of Canada.

but with provision for responsible government, which is sort of what I just described a second ago. And it came to fruition first in 1848 in Nova Scotia, but it quickly became the norm, like the Constitutional Convention, that the government advisors appointed by the governor are actually responsible to the legislature. okay, then more time passed and the idea became, well, maybe...

maybe these British colonies can be more independent still and less like colonies and more like self-governing political communities. In 1864, the governor of New Brunswick, whose name if I recall correctly is Leonard Tilley, convened a meeting of

the representatives from Nova Scotia, Prince Edward Island and New Brunswick to discuss maritime union, that these three small crown colonies should become one big crown colony. And John A. MacDonald back in the United Province of Canada heard about this and said, hey, how about if we crash their party, bring lots of liquor with us?

we'll bring our wives and it'll be a lot of fun. We'll dance and make friends and so on and so forth. And like they literally did not know these people in the Maritimes, but they thought, here's an interesting moment that we could exploit to create a bigger, grander political project in all of the Northern part of North America.

Tom M.J. Bateman (01:43:54.572) And he was thinking of a confederation of the British crown colonies in the Maritimes, plus the crown colony of the United problems of Canada and bring them together and have a big political and more independent country confederation. And let's call it Canada. so to make a long story short, that's roughly what happens. And the British agree.

eventually to a plan to convert these British crown colonies into the Confederation of Canada. But it would not be a republic. The new country would be still tied to Britain. the monarch of Britain would be the monarch of Canada, Queen Victoria. But Canada would be self-governing. It would be a much more independent, autonomous unit.

Canada was not gonna break away violently and in a revolutionary way from the British. Rather, Canada asked to be given the status. know, hey British government, we sort of like get our own apartment now? know, mom, is it okay if I move out? And can you just like maybe help me with a bit of money and so forth?

And can you sort of guarantee like co-sign the rental agreement and all that kind of stuff? And mom says, yeah, okay, that sounds good. Sure, sure. And the British basically said, okay, we're gonna do this by means of British legislation. We're gonna call it the British North America Act. And it's going to create a new jurisdiction in place of these Crown colonies in the lands of British North America.

and the British formulate the legislation pretty much based on the recommendations the Canadians gave them as a result of several conferences held in British North America. But here's the kicker. The British North America Act was passed in March of 1867. It was proclaimed in Canada July 1st, 1867.

Tom M.J. Bateman (01:46:18.958) But Canada's colonial status, it changed, but it remained in place in the sense that our constitution was still a piece of British legislation and could only be changed by an amendment process undertaken by the British Parliament. Because that's how the British Parliament changes all of its laws, by passing an amendment.

Ian Van Harten (01:46:34.255) Mm-hmm.

Tom M.J. Bateman (01:46:47.466) through the legislative process there. So we had a constitution as it were, but our constitution was British legislation changeable only by a British process. And so we were not constitutionally self-determining because we could not ourselves execute a change to our own constitution. We had to go cap in hand and ask the British to change

their British North America act in ways that we desired. Now to make a really long story as short as possible.

The British said, okay, whenever you guys want to change to the constitution, just tell us and we'll change the British North America Act. But the problem was what would constitute a request by Canada of the British to change their legislation? Would it be a call by the prime minister? Would it be a minute of a meeting of the federal cabinet? Don't forget Canada is a federal country. We've got premiers.

We've got provinces as well as the federal government. What if the federal government wanted to change the constitution in respect to the division of powers between the feds and the provinces? Would that be fair to the provinces if only the federal government made that request? The provinces would say, hey, wait a minute, this is a federal country. We are sovereign in our jurisdiction. You need our consent before changing the constitution that affects our powers. Okay, things become now really complicated.

And the British North America Act said nothing about the terms on which a change to the British North America Act could be made, other than that it's just a piece of British legislation. So the Canadians said, what we got to do then is come up with an amending formula for changing the constitution. Once we agree on that, we'll give that to the British, ask them to change their constitution.

Tom M.J. Bateman (01:48:55.776) stick in an amending formula and then relinquish control over it, give it to the Canadians. And now we've got our constitution and we have amending rules, which we need if we are to be the custodians of our constitution. And we tried about 11 times between 1927 and 1982 to come to an agreement on the amending formula. Couldn't do it. Finally it happened. It was kind of, you know, it wasn't pretty to watch.

Ian Van Harten (01:49:12.207) You

Tom M.J. Bateman (01:49:23.886) But it sort of happened in 1982. And on that basis, the British said, okay, fantastic. We don't even want to be the caretaker of your constitution. It's your fault that it's taken you so long to do this, but great, you've done it, then fine, we're gonna relinquish it. And so we took control of our constitution in 1982 in a process called, patriation. It's actually not a real word. It's a Canadian neologism. Cause it actually makes no sense. Maybe we'll talk about that later.

Ian Van Harten (01:49:48.628) interesting.

Tom M.J. Bateman (01:49:53.254) And so that's how it happened. The roots of it all are in Canada's beginnings as a set of British colonies. And we had the slow, kind of weird, but peaceful movement from colonial status to independent self-governing status.

Closing Thoughts

Ian Van Harten (01:50:18.223) There you go. A whole history of confederation thrown in with everything else we've been talking about. yeah, I think, I, I do think this is a good place to end for now. There's tons of other stuff to talk about, that I, that I hope we can continue to discuss, like, cause the Trotter of Ritual and Freedoms was introduced, along with this change. So I'd love to talk about that. There's kind of more about how parliament works and the programment that you, mentioned.

elections. yeah, lots more to talk about, for now I just want to say thank you so much for doing this. Yeah, this book kind of really leveled up my understanding of Canadian politics, so I just really appreciate you taking the time to walk through some of it here. So it's really awesome.

Tom M.J. Bateman (01:51:07.342) My pleasure, I enjoyed it.

Ian Van Harten (01:51:10.095) Cool. Thank you.

#transcript