Saturday, February 11, 2017

The Canadian Constitution and The Canadian Charter of Rights and Freedoms

American obsession with, and constant litigation over, their constitution has always amused me. Canada has a constitution.  I know this.  When I was young it was called the British North American Act of 1867. I didn't know until I looked it up that it is now called the Constitution Act 1867 which along with the Constitution Act 1982 make up the Constitution of Canada.

Most Canadians are vaguely aware of the fact we have a constitution. I suspect only recent immigrants seeking, or having just received, Canadian citizenship could quote you any of it, other than it does say somewhere in it "Peace, order and good governance". You can't get much more Canadian than that.

The Constitution Act 1982 repatriated our constitution from Britain to Canada
This will make Americans smile but from 1867 to 1982 our Constitution was controlled by the British Parliament.  The Act created Canada from four British colonies, two of which were already united, Upper Canada (Ontario) and Lower Canada (Quebec).  Canada could not change its constitution without going through Britain which of course never refused that I know of.  It did get to be embarrassing after a while. Canada certainly wanted it on home turf and Britain definitely wanted to be rid of it.

The Amending Formula was the sticker and took forever, I suspect, because Quebec wanted a veto on everything and was not about to get it. This formula finally agreed on by everyone (but Quebec?) required the approval of the Senate and House of Commons and of the legislative assemblies of at least two-thirds of the provinces with at least 50% of the population of all provinces.

The Canadian Charter of Rights and Freedoms, which is embedded in the Constitution Act 1982, possibly unlike the American Constitution and Bill of Rights (confession: like Trump, I have not read them), actually does mention God. It has had general approval of Canadians though it has been criticized from the left, right and centre.  So it is close, which only counts in horseshoes and hand grenades, and it is functional. My guess is that if you were to ask 10000 Canadians what it says, only the politically active MIGHT be able to tell you anything.

The Charter, which will celebrate 35 years in April has resulted in at least six major social changes in Canadian life. "Particularly since the charter's equality rights section came into force, the courts have overturned many laws that they felt went against the charter. But it is also the case that governments have won more often than they have lost on charter challenges before the Supreme Court."

1. Limiting Police Powers in wiretapping, burden of proof and disclosure obligations, to name but three changes which strengthened the rights of the individual.
2. Women's Reproductive Rights - the Morgentaler case which effectively legalized abortion in 1988.
3. Recognition of LGBTQ Rights up to and including same sex marriage in 2005.
4. Linguistic Rights for Francophones Outside Quebec - access to French schools, school boards and even hospitals. 
5. Strengthened Aboriginal Rights, recognizing historic aboriginal rights and ensuring consultation in resource development or other changes which affect them unduly. 
6.Judicial Activism the charter "amounts to a significant transfer of policy making to the courts," especially in an area that could be described as "morality issues."

There have been and will be challenges going to the Supreme Court but not every 15 minutes and no one gets too excited about them. Here is a list of notable Supreme Court Cases from 2000 to present. The only one that struck me off the top was R vs Latimer, who went to school with my brother.  I might have heard of some of the others but would need reminding.

The Constitution Act 1982 has a very Canadian section called The Not Withstanding Clause. This was included to mollify the provinces which were terrified of losing some rights they previously had prior to the Charter of Rights and Freedoms and was the only way that agreement was ever reached to repatriate the Constitution at all.

Essentially it allows any government Act to ignore rights guaranteed under the Charter for up to five years, after which time it lapses or the Act can be renewed. It has not been used that often. Quebec, Saskatchewan, Alberta, and Yukon Territory have invoked The Not Withstanding Clause.  Quebec invoked it after the Supreme Court struck down their French only language law on outdoor signs but let it lapse after five years. Alberta invoked the clause in a private members bill to define marriage as heterosexual only; this was bounced by the Supreme Court which ruled that only Parliament could define marriage.

Nothing very exciting.  Our Constitution works, more or less; our governments work, more or less; our parliamentary system works very well; our voting system works, more or less but could use some improvement to be more inclusive.  Our governments spend more time governing than social engineering which helps immensely. We have our share of Republican Jesus Christians and White Supremacists but one hopes that they never get the upper hand.


  1. Interesting...I never realized we were more obsessed with our constitution than other countries! Honestly, you don't pay much attention to it personally until an orange lunatic with a malignant personality disorder takes over your country...

    1. Americans worship their constitution like the Chinese worshiped Mao's Little Red Book. Your Founding Fathers are looked on a infallible deities.It stood you in good stead for 240 years but unless you are VERY fortunate will also result in your demise as a free and democratic country.

  2. I wish we had a government that worked more or less.
    the Ol'Buzzard

    1. Hold elections every four years; get rid of outside money; have separate paper ballots for President, Congress (House and Senate), register everyone to vote automatically, eliminate gerrymandering, have a national non-partisan commission over see federal elections.
      I am sure I missed something but it does have a nice start for a Science fiction Novel, doesn't it?

  3. The best thing Canada ever did was patriate the constitution and embed the Charter of Rights and Freedoms in it.

    1. Agree 100%. Even if we had to drag Quebec kicking and screaming behind us

    2. Is there ever any OTHER way that Quebec comes along? LOL

  4. I am so glad (and so lucky) to be Canadian!


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