The Canadian Parliament and Divorce

Abstract

The British North America Act is usually considered to go no further in guaranteeing fundamental rights than to provide some protection for the French Canadians of Quebec with respect to their peculiar property and social institutions, for Protestant and Catholic minorities in the provision of educational facilities, and for English and French minorities in the use of their languages. Yet subsection 26 of section 91, which authorized the Dominion Parliament and not the provincial legislatures to enact laws on divorce, was no less a protective device. For, as Georges Etienne Carrier pointed out in Parliament in 1870, the Protestants of Quebec would have been unable to secure divorces if the granting of them had been left to the legislatures, since the legislature of Quebec would not have established a court for that purpose or permitted them by special bills. According to Carrier, the bishops of his Church had accepted the subsection relating to divorce because Canada was a mixed community; he hoped, however, that, when Catholics petitioned for divorce, Protestant members of Parliament would remember that the provision was intended for Protestants. The inference was that Parliament was to give different treatment to petitioners of different religious faiths.