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Satoru Osanai

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How should we explain about Canada?

Satoru Osanai
Professor of Law, Chuo University
Areas of Specialization: Anglo-American Public Law and Comparative Constitutional Law

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The present Constitution of Canada will soon celebrate its 30th anniversary in April this year. Leading up to this memorable occasion, the Japanese Association for Canadian Studies (JACS) held a symposium last September entitled Transformation of Canadian Federalism [Kanada rempo seido no hen-yo]. As its moderator, I received a scathing remark from the floor that "there are many things that may well be taken for granted by those specialized in law, but that outsiders would find difficult to understand."

While members of JACS are all working on area studies of Canada,their specialties vary from one person to another. Accordingly, as it is the case with almost every interdisciplinary academic organizations, what a small group of presenters believe to be a common knowledge among them may not always make sense to others.

During the symposium, I took advantage of my authority as moderator and added to each presentation as many supplements and explanations as possible. By so-doing I somehow managed to finish the conference successfully. Through this experience I have come to fully realize the difficulty in adjusting different level of common knowledge. In addition, given this disparity even among scholars, I was compelled to resolve once again to treat students-who are beginners after all-with far more care.

Nevertheless, it is a matter of daily practice for me to be at a total loss when faced to questions from students who tend to seek a quick answer to everything. In the following passages I will try to show how difficult it is to answer a seemingly easy question, such as for example, when Canada became a sovereign state. My story will be very different from those illuminating articles appeared in this column that have brought us to the wonder land of advanced science. I hope readers will be patient enough to pay attention to feeble complaints of an old school teacher.

How I got involved in Canadian Studies.

My first encounter with Canada dates back to the late 1960s. As an assistant to the Faculty of Law, I was struggling with the basics of the American constitutional law. I simply did not understand its most notable feature, namely the federal system of government. I read a variety of casebooks one after another, but was unable to find even a clue to solve my problems. Thinking back now, I should have begun by poring over the founding history of the United States. Sad to say, I did not have enough intelligence or leeway to do so in those days.

It was Professor Edward McWhinney, a prominent Canadian constitutional scholar, who reached out and gave a helping hand to me. I had known about him through an acerbic comment he wrote for the Constitutional Research Commission, an organization established under the Cabinet in 1956 and headed by the late Dr. Kenzo Takayanagi. I had the great fortune of meeting him in person when he visited Japan in the fall of 1968. I felt as if I had been taking a leap in the dark, when I confided the fears and worries of a fledgling researcher. He emphasized the importance of comparative study of law, and then asked me if I wanted to attend a special seminar on the comparative federalism that he planned to open at McGill University in Montreal, Canada. I still cannot believe that I was so reckless in answering yes to such an unexpected invitation, despite the pittance of my salary-less than 100 dollars a month at the exchange rate at that time.

When did Canada attain independence?

Like the United States, Canada was once a colony of the British Empire. Whereas the United States broke free from British control through the Revolutionary War in a single bound, Canadian independence was characterized by a long, complicated and incremental process. This process can be roughly divided into four phases:

(1) Independence of Diplomatic Power

The Canadian federation started as the Dominion of Canada in 1867, when Britishe Parliament passed a statute commonly known as the British North American Acts (BNA Act). The purpose of this legislation was to integrate and reorganize three British colonies remaining in North America into a federally united dominion consisting of four provinces. In 1919, the Dominion of Canada signed under its own name on the peace treaty concluded in Paris to end the World War I. Since then Canada was recognized in the international society as an independent entity to exercise diplomatic authority by itself. The new international status of the Dominion was subsequently confirmed by the Balfour Declaration in 1926.

(2) Independence of Legislative Power

During the colonial period the legislative power vested in Canada was subject to the supremacy of the laws of British Empire, including court decisions, imperial orders and the like. Shortly before the formation of the Dominion of Canada the supremacy of British l laws in general was reduced to that of Parliamentary enactments. It was further reduced in 1931 by the Statute of Westminster, which provided that no Act of British Parliament would be binding upon the Dominion without prior consent of Canadian Parilament. It was certainly a major advancement in the autonomy of the legislative power of Canada.It should be noted here that the BNA Act of 1867 and subsequent statutes carrying the same name were left beyond the reach of the Statute of Westminster. This was because the BNA Acts-which were undoubtedly constitutional laws for Canada-were only part of the ordinary Acts of Parliament from the British point of view, and accordingly lacked any amending formula indispensable for a federal constitution. Thus, even after the enactment of the Statute of Westminster, Canada had to rely on the paramount legislative authority of British Parliament in order to revise their Constitution.

(3) Independence of Judicial Power

The Dominion established its own supreme court as early as in 1875. However, as the result of a constitutional convention that prevailed in Canada since the colonial period, any judgment rendered by Canadian court could be appealed to the Judicial Committee of Privy Council in London. In other words, the Supreme Court of Canada was hardly a court of last resort in itstrue sense. This practice was finally abandoned in 1949, when the term Dominion was removed from the name of the country.

(4) Independence of Constitutional Amending Power

The remaining legal dependency between Britain and Canada was resolved once and for all by the Constitution Act of 1982 mentioned earlier at the beginning of this essay. Accordingly, Canadians obtained full authority to amend and abolish their Constitution, which completed its formation as an independent sovereign state both in name and reality.

Above I have tried to describe the process of Canadian independence chronologically in a very simple manner. Now, I hope the readers would understand how I am perplexed when I am asked to provide still more concise explanation by students who have just started studying Canada.

Satoru Osanai
Professor, Faculty of Law and Law School, Chuo University
Areas of Specialization: Basic Law (Anglo-American Public Law and Comparative Constitutional Law)
Professor Osanai was born in Hokkaido in 1942. He graduated from thChuo University in 1966, and after serving as assistant and associate professor at his mother institution, appointed full professor in 1979. He has also been teaching at Chuo Law School since its establishment in 2004. He has experienced a number of internal administrative posts such as Dean of Student Affairs, Dean of the Faculty of Law, and Executive Director of Chuo University. He is presently a board member of the Japan Society of Comparative Law, the Japanese American Society for Legal Studies and the Japanese Association for Canadian Studies, along with being a member of the Registered Foreign Lawyers Disciplinary Actions Committee, the Japanese Federation of Bar Associations. He has also engaged in research and educational activities at various universities in countries such as the United States, Canada, Australia, France, Thailand and etc. His major publications include The Annotated United States Constitution [Chukai amerika kempo] (Sakai Shoten, 1983), co-authored with the late Supreme Court Justice Shigeyori Tsukamoto; and "Legal Problems of Transition to Democracy: The Case of Japan" (Verlag Recht und Wirtschaft GmbH, 1995), a paper written for researchers overseas.