I will not belabour further the differences between legal legitimacy and political legitimacy. I simply wish to reiterate that both are important and both normally coexist but, in the long run, it is political legitimacy which is the more important. Once the political legitimacy of a constitution is established, and the regime it prescribes becomes the effective system of government, it is only a matter of time until the courts generally will recognize it; then its legal legitimacy will follow.
Turning now to the Canadian constitution, what are the sources of its legitimacy, legal and political? I propose to answer this question in relation to different periods in our history. While the source of legal legitimacy has remained constant until this year, I am going to suggest that the sources of political legitimacy have changed from time to time and may still be changing. In this analysis I am going to focus on the period from Confederation to the present.
Legitimacy and Confederation
Legal legitimacy for Confederation was provided by the United Kingdom Parliament. While the power of that Parliament to legislate for overseas colonies had been hotly disputed by some, particularly in the American colonies, the judicial view was clearly stated by Lord Mansfield in 1774 in the famous case of Campbell v. Hall*, when he held that
a country conquered by the British Arms becomes a Dominion of the King in the right of his Crown, and therefore necessarily subject to the legislative power of the Parliament of Great Britain.
It was on this theory that Parliament, in the same year, passed the Quebec Act and several other so-called “Intolerable Acts” — that is, so-called by the American colonists — which helped to set off the American revolution. One of the major grievances in the thirteen colonies was that the British Parliament asserted a right to legislate for them, thus imposing “taxation without representation”. In the northern colonies the legislative authority of the British Parliament was never seriously questioned and, of course, the Quebec Act, 1774 was generally welcomed in that colony. It was the first of a series of constitutions enacted for Canada by the British Parliament, of which the Constitution Act, 1982 was the last. So in 1867, when it came time to replace earlier colonial constitutions and to cobble together a country, no one seriously doubted that the United Kingdom Parliament could legally pass the British North America Act.
The political legitimacy of that Act is less easily explained. Why was this new constitution, adopted by a distant parliament for which no British North American could vote, acceptable in this country? There was no
4. (1774) 1 Cowp. 204; 98 E.R. 1045 (K.B.).