Conception of Rights in Canada’s Constitutions of 1840, 1867 and 1982

185th Anniversary of 1837-38 Rebellions in Lower and Upper Canada

Patriots led by Wolfred Nelson defeat British troops at the Battle of Saint-Denis.

A monument to the Patriots is inaugurated in Saint-Denis on July 1, 1918.

This year marks the 185th anniversary of the 1837-38 rebellions in Lower and Upper Canada. These rebellions aimed to bring in arrangements that vested sovereignty in the people, not the British Crown. It is important to examine the cause of the Patriots of 1837-38 and how this struggle was brutally suppressed by the British in what was known as Lower Canada. Of significance is the conception of rights put forward by the Patriots, as well as the conception of rights imposed by the British in the Constitutions of 1840 and 1867 and then the Anglo-Canadian state in 1982. This conception clearly shows that rights are not an abstraction but defined within time and space as a result of a striving of a people or a section thereof for their own empowerment. Looking at this history starting from the present — what the conditions reveal today — we go into the past to enrich our ability to solve problems and open society’s path to progress in the present. In this regard, matters of the approach to the study of history (historiography), and the relations people enter into and what kind of society this gives rise to (political theory), are taken up. This includes addressing the need to oppose attempts to divide the people for purposes of maintaining the status quo, a practice introduced by the British colonialists and upheld by the Anglo-Canadian state on the basis of the suppression of the nascent Quebec nation, the expropriation of the Indigenous peoples and attempts to commit genocide against them, as well as a medieval holdover which conceives of rights as privileges to be given and taken away by a higher power called “the Crown.”

During the period of the Rebellions of the Quebec Patriots, their relations with the patriots fighting in Upper Canada against the tyranny of the vice-royal representatives and apparatus there were also significant as was the support they received from U.S. revolutionaries at the time. The state of rights today cannot be fully grasped without grasping the structures imposed in the Constitution Acts of 1840 and 1867 which were not touched by the patriation of the Constitution in 1982 which merely added a nigh impossible amending formalae and the Charter of Rights and Freedoms whose “reasonable limits” are also defined by “the Crown.” The working people in Canada are clear about how the state uses its institutions to make sure workers cannot effectively defend their rights, including health and safety in the workplace, that Indigenous people’s right to uphold their hereditary rights can be criminalized and immigrants seeking citizenship have to swear allegiance to a foreign monarch, as do members of parliament and legislatures, and even governments appointed by Prime Ministers appointed by a Governor General because they lead a party to which very few citizens belong.

Patriots in Upper Canada march on Toronto from Montgomery’s Inn, December 5, 1837.

The struggle of the Patriots espoused the most advanced ideals of the time. It was a nation-building project based on the anti-colonial cause, the abolition of the feudal seigneurial system, the creation of a structure which conferred equality of membership to all and citizenship rights without distinction as to origin or belief, including to the Indigenous peoples should they so desire. The Patriots sought a constitution to enshrine those ideals as the law of the land in the form of a republic.

This cause was akin to the great wars of independence in Latin America and the Caribbean at that time as well as the national movements in Italy and other countries in Europe fighting against feudal aristocracies and their conceptions of absolute divine right. Related developments in those days led to the formation of the International Working Men’s Association by Marx and Engels in 1864 and in 1871 to the Paris Commune. The Patriots fought for institutions consistent with the needs of the times. For this their rebellion was crushed by the British through force of arms, the suspension of civil liberties, mass arrests, burning of homes, the hanging of 12 Patriots and the forced exile of 64 others. Comparing the size of the population at that time to today, this amounts to a significant number of people.

Tackling the manner in which the workers and society in general are under constant anti-social nation-wrecking attack today, the recognition that rights belong to people by virtue of being human and that they are not an abstraction, must be affirmed by fighting for them. By laying the claims to what belongs to people by right because of their role in the production and reproduction of life itself, rights are defined by the struggle itself. It is the people fighting for definite demands who imbue the conception of rights with concrete meaning. They must be able to enact the rights a society espouses for that society to move forward and be put on a par with the needs of the times. Because the members of society are human, societies are duty bound to ensure the conditions for their living are met. The people must create a political movement which takes up the work for a modern constitution so as to enshrine the rights which belong to all by virtue of their being. Establishing cohesion within the body politic around the independent politics of the working class is thus urgently needed to open a path to progress and avert the dangers of war which are looming before us.

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