Canada is not sovereign? Google says the fourth most-searched question about Canada is, “Is Canada a country?” That seems silly. But it seems they never formed Canada properly in law. If so, then it exists due to the de facto doctrine. The de facto doctrine prevents anarchy.
Canadians are told the British North American Act (“BNA Act”) in 1867 united the four provinces (Ontario, Quebec, New Brunswick, and Nova Scotia) into a political entity called Canada.
Being sovereign means not being subservient to another country’s laws. But the 1867 BNA Act is a British law. In fact, the UK Government web site, legislation.co.uk, lists it. That means the UK government can rescind their BNA Act at anytime.
Sovereignty means not being subservient to another country’s laws, such as UK’s BNA Act.
The U.S. Supreme Court defined sovereignty in the famous 1793 Chisolm v. Georgia case:
“The supreme, absolute, and uncontrollable power by which any independent state is governed; the self-sufficient source of political power, from which all specific political powers are derived; the international dependence of a state, combined with the right and power of regulating its internal affairs without foreign dictation…”
In 1982 Canadian Prime Minister Trudeau “repatriated” the BNA Act from the United Kingdom. Basically, it was asking the UK for permission to amend the Constitution (Charter of Rights and Freedoms + the BNA Act) in the future without their permission.
As the BNA Act is a British law, and that law supposedly formed Canada, then Canada is not sovereign. In short, it is not “self-sufficient”, nor “without foreign dictation.”
The website The Myth is Canada has some excellent information. For example, it has the 1976 letter from Walter Kuhl, former Member of Parliament, to Rene Lévesque, then Premier of Quebec. Walter Kuhl’s research included accessing the Queen’s private library underneath London’s Hyde Park. That is why Kuhl concluded Canada was never lawfully confederated into a sovereign state. Kuhl discussed this in Parliament. The Hansards recorded it.
In 2006 Patrick Anthony Ellis published Fabrication of a Nation(click on it to download his 92-page essay). Ellis also proposes Canada is not sovereign.
So does this mean Canada does not legally exist? Well, maybe not quite.
Rogers Smith could not find a copy of the BNA Act in Canada
Duhaime’s Law Dictionary defines de facto as: “a matter of fact; something which, while not necessarily lawful, exists in fact.”
We earlier introduced Canadian judge Albert Constantineau and his 1910 law book, The De Facto Doctrine. It states on page 5:
“The (de facto) doctrine is necessary to maintain the supremacy of the law and to preserve peace and order in the community at large, since any other rule would lead to such uncertainty and confusion, as to break up the order and quiet of all civil administration.”
On page 5 Constantineau continues, “The history of the world is the history of kingdoms and empires, and civilizations de facto, becoming de jure, because they are de facto.”
In short, the de facto doctrine, out of necessity (public policy) prevents anarchy.
The de facto doctrine, out of necessity (public policy) prevents anarchy
The de facto doctrine is in Section 15 of Canada’s Criminal Code:
Obedience to de facto law
15 No person shall be convicted of an offence in respect of an act or omission in obedience to the laws for the time being made and enforced by persons in de facto possession of the sovereign power in and over the place where the act or omission occurs.
So is the de facto doctrine in Canada’s Criminal Code because Canada is not sovereign? Hmm.
Canada’s Criminal Code uses the de facto doctrine
Canada Day is a national holiday every year on July 1st. In 2017, The federal Government spent half a billon dollars celebrating Canada’s 150th “birthday”. Even if Canada is not sovereign, the de facto doctrine allows us to celebrate being “Canadians”, eh?