In anticipation of Canada’s 150th birthday, I thought it would be apropos to review the history and significance of Canada’s constitution – the supreme law of our nation.
“For much of world history, societies were ruled by people who took power by force or birthright.”
The laws which governed people were enacted and enforced largely at the whims of the ruler. The rise of democracies came with a rise in the idea that laws should be predictable, enforceable against everyone (even those who create the law) and created in accordance with defined systems which limit the powers of law-makers. A constitution ensures this predictability, enforceability, and system of limitations. In a nutshell, a constitution is a set of rules by which a society agrees to govern itself. It is not a code of laws which cover the detailed minutiae of life and legal relations; it sets up the mechanisms which both authorize and limit the power of the state.” Generally speaking, no government can make or enforce a law which is inconsistent with its constitution.
Prince Edward Island’s best-known contribution to the nation-building process took place in September 1864 at the Charlottetown Conference. It was then that the Fathers of Confederation first met to discuss uniting to form one nation. Their reasons were largely economic and also due to the need to present a united front against a southern neighbour embroiled in a brutal civil war. At Charlottetown, the Fathers decided that Canada would be a federal union, which means that power would be split between a central government tasked with making laws for the whole nation, and a local government in each of the provinces. One cannot overstate the importance of this decision to Canada’s history. It remains a hallmark of our system of government and is ultimately one of the reasons why Charlottetown is rightly considered the birthplace of Canada.
The Fathers put pen to paper at the Quebec Conference in October of 1864 and adopted a text known as the Quebec Resolutions. These Resolutions were the subject of significant debate and addressed almost all of what subsequently became the text of the British North America Act (now known as the Constitution Act, 1867). The British North America Act passed the UK House of Commons in March of 1867 and was proclaimed on July 1st, 1867. The Dominion of Canada thus became a reality.
In the beginning, the parliament of the United Kingdom retained the power to make laws for Canada, and U.K. courts retained the power to review Canadian court decisions and legislative action.
The British North America Act was viewed by law-makers and judges in the U.K. as less like a constitution and more like any other British statute. It was not until 1931 that laws of the U.K. ceased to automatically apply in Canada, and 1949 before the Supreme Court of Canada was the top appeal court for Canadian legal disputes. One early constitutional law case strengthened the powers of provincial governments far beyond what our first prime minister, John A. MacDonald, had envisioned. Another established the principle that Canada’s constitution was to be interpreted as a “living tree” capable of growing and changing with society. This is in contrast to the American constitution, which is often interpreted by discerning the original intent of its drafters. That case also determined that women were legal “persons” who could sit on the Senate of Canada.
Canada’s full independence was not achieved until 1982, when our constitution was patriated and we were granted the power to amend our constitution without U.K. approval. Perhaps the most important aspect of constitutional change which took place in that year or since was the adoption of the Charter of Rights and Freedoms. The Charter is part of Canada’s constitution, and thus forms part of the supreme law of Canada. The Charter guarantees to all Canadians certain fundamental freedoms such as freedom of religion, expression, and association; it protects against state intrusions into the private lives of Canadians, protects the equality rights of historically disadvantaged groups, and recognizes and affirms the rights of Indigenous groups who occupied and controlled this territory prior to European sovereignty. The Charter played a central role in limiting police powers, affirming women’s reproductive rights, recognizing the rights of the LGBT community, and strengthening Indigenous rights and the linguistic rights of Francophones outside Quebec. It has also led to major changes in Canada’s immigration and refugee systems, and, more recently, informed judicial decisions which affirmed a right to a physician-assisted death, and placed strict limits on the time within which criminal trials must commence. While Canadians might not always agree with the ways in which judges interpret and apply the Charter, it is difficult to deny its lasting impact on Canadian society.
At almost 150 years of age, Canada’s constitution is one of the oldest working constitutions on earth. It follows a process of major legal and societal developments whose roots extend to the signing of the Magna Carta in 1215 A.D. and beyond. 2017 also marks the 35th anniversary of the Charter. As we approach Canada’s 150th birthday, I encourage everyone to consider the history and significance of our constitution, and to appreciate the generations of Canadians who have used it as a basis upon which to strengthen and enrich our society.
1 Billingsley, Barbara. “Evolution, Not Revolution: Canada’s Constitutional History and the Constitution Act, 1867” available at: http://www.lawnow.org/canadas-constitutional-history/ 1 January 2013. Accessed 1 June 2017.
Reference Re Secession of Quebec, 1998 CanLii 793 (SCC) at para 41.
Edwards v Canada (Attorney General), 1929 CanLII 438 (UK JCPC).
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