A Look at Canada’s New Constitution
By “Awake!” correspondent in Canada
“TRULY Canadian at last,” said the speaker. A crowd of 30,000 people heartily cheered in response. The speaker? Queen Elizabeth II of England. The crowd? Those gathered in Ottawa, capital of Canada, on April 17, 1982, to hear the proclamation of the “Constitution Act, 1982.” Yes, Canada finally had its own constitution!
But has not Canada been a nation for more than a century? Why is it that only at this late day is a constitution proclaimed? Good questions. To understand the matter we will have to take a brief look at Canadian history and see how, for a time, Canada came to be (in a sense) a country without a constitution of its own.
Why a Constitution Needed?
Canada was formed as a nation in 1867 when several British colonies north of the United States of America formed a federation and requested the Parliament of Great Britain to create the country legally. This was done by the BNA (British North America) Act. Since it was an act of the British Parliament, the Houses of Commons and Lords had to be approached for any needed amendments in the future.
Even though amendments usually passed without question, yet the fact that the founding document was a statute of a “foreign” country was, in time, “not good enough,” according to some Canadians. They felt that the BNA Act should be brought home to Canada and be amendable there. There were other reasons for wanting it “patriated.”
The Constitution that Canada had was a combination of many thousands of laws and conventions developed over the years, in addition to the great body of law inherited from England. The latter includes the Magna Carta of 1215 C.E., the first statute of English law and a restraint on the authority of the Crown. The founders of the United States fell back on the Magna Carta when framing their constitution so as to include fundamental rights for the protection of all citizens. Thus, courts are able to decide cases based on the broad principles of their Bill of Rights. Canada had no such well-defined guarantees.
Canadian Bill of Rights
However, the desire of Canadians for such a document was proved in 1949 when Jehovah’s Witnesses circulated a petition calling for a Canadian Bill of Rights. More than 625,000 names were presented to Parliament that year by those who sensed a threat to the freedoms of all Canadians in the abuses they saw heaped upon Jehovah’s Witnesses in the Province of Quebec. They believed a solution would be found in constitutional guarantees of fundamental rights for all.
On August 10, 1960, the Canadian Bill of Rights was enacted. It did not have the strength many Canadians had hoped for. (See Awake!, February 8, 1961.) Then Professor Bora Laskin (later Chief Justice of the Supreme Court of Canada) described the Bill as “disappointing in its approach, unnecessarily limited in its application and ineffective in its substance.” Thus, not only could Canadians then not amend their Constitution but they were also rightly concerned about the preservation of their civil liberties.
This is not to say that they had no freedoms. Indeed, the Supreme Court over the years had ably decided in favor of freedom of religion, of assembly, of speech and of the press, cases mostly involving the freedoms of Jehovah’s Witnesses, though affecting all citizens. For example, in the landmark decision of Saumur v. Quebec, one of the cases of Jehovah’s Witnesses, Mr. Justice Rand stated: “Freedom of speech, religion and the inviolability of the person, are original freedoms which are at once the necessary attributes and modes of self-expression of human beings and the primary conditions of their community life within a legal order.”
To ensure that no law can be enacted that contravenes such rights, it was felt that it was necessary to “entrench” them in the Constitution. As former Prime Minister Pierre Trudeau pointed out: “As a constitutional provision it would be not just an ordinary law but . . . a rule by which the making of laws is governed. By guaranteeing certain rights free from interference, it would limit the power of governments and would override ordinary governmental action—even duly enacted statutes—which invaded those rights.”
What the Constitution Act Contains
What does the Constitution Act contain? The first 34 sections are entitled: “Canadian Charter of Rights and Freedoms,” covering such basic freedoms as “(a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.” The balance deals with the status of aboriginal peoples, the balancing of regional disparities and constitutional amendments.
Of concern to some are the override clauses that restrict freedoms to certain limits or that allow provinces to have laws exempt from conforming to the Charter. The American Bill of Rights has no such limitations. Only time will tell the effect of these clauses on basic rights and freedoms.
Far-Reaching Consequences
In the two years that followed the proclamation of the Constitution Act, 1982, there have been far-reaching consequences. More than a thousand decisions dealing with the Charter have been handed down in the lower courts. These have mainly been cases on technicalities of the criminal law and some procedural matters. Due to the time required for appeals to reach higher courts, only one case has reached the Supreme Court, and that did not involve a major issue.
Canadians are to be commended for their desire to establish their society on principles of justice “that recognize the supremacy of God.” It is hoped they will follow in spirit the provisions of their Constitution. As a Canadian lawyer and expert on civil liberties told us in an interview: “No law is stronger than its means of enforcement, and the means of enforcement is only what the people will allow.” Hence, Canadians must now be alert to apply the Charter of Rights in the new Canadian Constitution.
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“No law is stronger than its means of enforcement, and the means of enforcement is only what the people will allow”