Module 3: The Constitution

Figure 3-2: “John” in A Chronicle of England: B.C. 55 – A.D. 1485. Source: https://commons.wikimedia.org/w/index.php?curid=12046373  By James William Edmund Doyle (1864). Permission: Public Domain,

Constitutions are the foundation of a state and the state’s legitimacy. Essentially, the constitution is the rule book for how the state works or sometimes, unfortunately, how it is supposed to work. The impetus for a constitution is rooted in the demand of people who wanted to live under the rule of law. The earliest example of this impulse in the English-speaking world is the Magna Carta of 1215. For the first time, the Monarchy who had ruled under divine right, in this case, King John, was forced to accept a list of demands drafted by his subjects. Even now, three elements of the Magna Carta remain as part of UK law: the freedom of the Church of England, the liberties of London, and the right to due process. It also played an influential part in the drafting of the American Constitution, in particular the bill of rights, the right to a fair trial by jury, the right to due process, and the prohibition of cruel and unusual punishment.

That being said, constitutions do come in a variety of forms. However, regardless of form, constitutions define a state’s constitutional law: the body of fundamental rules that influence the making of other laws. The most formal constitutions are codified, or written constitutions. These documents explicitly lay claim to being the highest law in the state. They define the patterns of authority within the state and specifically the authority of different branches of the state: legislative, executive, and

Figure 3-3: “India’s Constitution” Source: https://commons.wikimedia.org/wiki/File:Constitution_of_India.jpg By Illumination/ornamentation by Beohar Rammanohar Sinha, calligraphy by Prem Behari Narain Raizada. Permission: Public Domain.

judicial. For example, India’s Constitution is the longest in the world, consisting of 448 articles in 24 parts, 12 schedules, and 97 amendments.

On the other side of the spectrum, are uncodified or unwritten constitutions. In these cases, the state’s rule book is often based on customs, usages, and most importantly the precedent of statutes and law. This is a more organic view of a rule book. Instead of making a judgement on the legitimacy of particular acts of the state by referencing a single document, it is necessary to reference past judgements, explicit legislation, and legal opinion. However, the term ‘unwritten’ constitution is a bit misleading in that it is usually written down somewhere: legislation, legal judgement, legal opinions, et cetera. Of the developed democracies, the United Kingdom has the most robust unwritten constitution. As mentioned, it still refers to the Magna Carta of 1215!

Moreover, in both written and unwritten constitutions, there are traditions, or conventions, that have almost constitutional qualities. Constitutional conventions are unwritten rules that have evolved through practice and may or may not be legally necessary or even enforceable. They are based on norms and standards of appropriateness. They are what the citizens are expecting the state to do because that is what the state has always done. Therefore, while perhaps they are not always necessary nor even enforceable, it is possible for the government and politicians to be punished by the electorate if they are breached. For example, in module two, we introduced a Canadian constitutional convention, whereby the Senate would not defeat a bill passed by the House of Commons. While there is still an expectation that this will hold true, this convention has been breached without legal punishment. An example of this is the decision to defeat a bill regulating abortions in 1989.

Both written and unwritten constitutions aim to fulfill three functions. First, they create a means by which to set the principles of governing both at the time of framing and in the future. As such, the constitution is the highest law of the state and, importantly, limits the scope of government action. An important limit on state power and authority is the specification of citizens’ rights. This is particularly expected in developed democratic states. Individual rights are the claims of every citizen, for example, the right to life and liberty. Collective rights are entitlements or duties owed to certain groups, such as language protection or exclusive land use by Indigenous Peoples. These rights often make reference to natural rights, religious beliefs, and political rights. Limiting the scope of government action, and the enshrining of rights is crucial to the functioning of democracy. Without such limits, the government could be captured by specific interest groups and used to the detriment of other groups. This in turn could lead to conflict and violence, ultimately questioning the legitimacy of the state itself. Second, constitutions function at a symbolic level. The language used in the constitution can define the intent of a nation, setting ethical and moral standards to be upheld. Take the US Constitution for example. It opens with

Figure 3-4: “Frederick Douglas” By George Kendall Warren – cataloged under the National Archives Identifier Source: https://commons.wikimedia.org/w/index.php?curid=1044449 Permission: Public Domain.

“We the People of the United States of America, in Order to form a more perfect union…”.

This is a powerful message that symbolizes important progressive values and intent. That is not to say such aspirations are always upheld, as African Americans in the US have witnessed. But as Frederick Douglas stated in a speech given at Colored People’s Day at the World Columbian Exposition in 1893.

There is no negro problem. The problem is whether the American people have loyalty enough, honor enough, patriotism enough, to live up to their own constitution.

Frederick Douglas

But the symbolism remains a potent force in America today. For example, take this video where Black Lives Matter protesters are brought up on stage to speak to the rally of Trump supporters. Now, this is not an endorsement of the positions given here but it is telling that both the Trump supporters and the Black Lives Matter protestors are speaking to the values that the constitution symbolizes: justice, peace, prosperity, and liberty.

Third, constitutions operate on a practical level to map out how the government of state will operate; who will do what and by what authority.

As discussed, constitutional law is the highest law of the state. With a constitution, a state is expected to operate under the rule of law. In other words, all actors whether they be representatives of the state or not are subject to the law. Moreover, the actions of the state and its representatives will be fair and without malice. Again we see the spectre of the Magna Carta with the principles of due process and expectation that abuse of power will be checked. Within this constitutional framework, the laws of the land are drafted.

Much of Canada’s legal tradition was imported via the two founding colonial states, Britain and France. Britain has an unwritten constitution that developed a form of customary law called common law. Customary law is the product of evolving norms and customs that define the expectations of individuals towards each other. The British common law is often called case law as it is based on stare decisis, the principle of following precedent set down in earlier court cases and that lower courts are bound to the decisions of higher courts. Nine provinces and the territories use common law. The exception is Québec which uses the Code civil du Québec, mirroring the legal system brought by the French colonizers. A code is a body of legislative laws that are brought together in a single body to provide a relatively complete set of rules.

When common law is insufficient or has become outdated, it can be amended by statute law, also known as legislative law. These are the laws drafted by the federal and provincial legislatures. If a court has exhausted constitutional law, existing statute law, and other legal decisions which hold applicability or insight, then the judge must rely on common sense and reason. Subsequently, these decisions will contribute to the pool from which common law is formed. In the UK, the relationship between statutory law and common law is defined by the doctrine of parliamentary supremacy: that the legislative body has absolute sovereignty and is, therefore, superior to both the executive and judicial branches of government. This means that the courts cannot overrule duly passed legislation. It also means that the current parliament cannot bind future parliaments to the current law nor prevent future legislation from amending any law. A contemporary example of this relates to the Brexit process in the UK. The British Government of David Cameron held a non-binding referendum on whether the UK should remain a member of the European Union in 2016. The result supported leaving the UK. PM David Cameron resigned and the new PM, Theresa May, tried to start the process of Brexit. However, the courts upheld a legal challenge that to do so would violate the doctrine of parliamentary sovereignty. In other words, Brexit could not proceed without the assent of Parliament. However, in Canada, the superiority of the legislative branch is limited by ultra vires. This principle puts specific laws beyond legislative jurisdiction because of provisions in the Constitution, such as the federal division of powers, or the Charter of Rights and Freedom. These provisions cover democratic and mobility rights specifically. For example, in Law Society of Alberta v. Black et al., (1989) the limitation blocking law firms from operating in more than one province was struck down as opposing mobility rights under section 6 of the Charter, the right of Canadians to work in any province.

When did Canada become an independent state? Many might cite 1867, the year of Confederation. Others might cite the 1931 Treaty of Westminster. And others might cite 1982 when the Constitution was repatriated by the Canada Act. All of these are partly correct answers. Canadian Confederation was achieved in 1867 with the British North America Act (BNA). The BNA created the four provinces of Ontario, Quebec, Nova Scotia, and New Brunswick as well as the federal parliament. Crucially, it sorted jurisdictional issues. The federal government gained responsibility for key areas such as citizenship, the Crown’s duty towards Indigenous Peoples, national defence, criminal law, interprovincial and international trade, banking, money, the postal service, shipping, fisheries, and the census and statistics. The provincial governments were given power over municipalities, hospitals, schools, prisons, property, and provincial courts. In so doing, the BNA sought to balance the financial needs of both levels of government. Importantly, the courts were appointed as arbiters of any jurisdictional conflict. But the UK still retained the Judicial Committee of the Privy Council (JCPC), the highest court in Canada. In a common law system, and especially combined with a federal structure like Canada, the court is an essential part of sovereignty as it has the last say in jurisdictional and constitutional matters. This would become a contentious issue, as contrary to the centralized vision of Canada laid out in BNA, the JCPC tended to side with the provinces in jurisdictional disputes. Further tension would be generated by the UK’s control of Canadian foreign policy.

“Canadian soldiers in a trench, in 1916 during WWI” By Agence Rol – Bibliothèque nationale de France. Source: https://commons.wikimedia.org/w/index.php?curid=12043295 Permission: Public Domain.

For example, this meant that when the UK declared war in 1914, Canada was automatically committed as well.

Finally, and as a side note, the jurisdictional issues dealt with by the BNA are a good indicator of what kind of document this is. There are no inspirational words or lofty ambitions. Amendments and conflicts would be decided in British Parliament and British Courts.

Figure 3-6: The Queen’s Dominion” By McVitie and Price – Canadian War Museum in Ottawa. Source: https://commons.wikimedia.org/w/index.php?curid=9916870 Permission: Public Domain.

This is a document that pragmatically sorts the functioning of a British Dominion. Practical issues of independence were amended in 1931 when the Statute of Westminster was passed in the British Parliament. The statute was based on the agreements reached at the 1929 ‘Conference on the Operation of Dominion Legislation’. Canada had been represented at the conference by Canada’s Minister of Justice Ernest LaPointe and one of PM Mackenzie King’s trusted advisors Oscar Skelton.

Figure 3-7: “Rt. Hon. W.L. Mackenzie King and Dr. O.D. Skelton at the signing of the British Commonwealth Air Training Plan Agreement, Ottawa, December 16, 1939”  Source: https://www.flickr.com/photos/lac-bac/15836933442 Permission:  CC BY 2.0 Courtesy of Walter J. Turnbull.

For Canada and the other Dominions, this was an important step towards achieving sovereignty. For Canada, the statute limited the legislative authority of the British Parliament, essentially gaining legislative autonomy. The one remaining exception was being the power of amending Canada’s constitution, which the British retained albeit only at the request of the Canadian parliament. It also allowed Canada to abolish the Judicial Committee of the Privy Council which it did in 1933 for criminal cases and 1949 for civil cases. Finally, the statute also removed the UK’s control of Canadian foreign policy. In effect, through the Statute of Westminster, Canada became de facto sovereign in 1931, albeit de jure Canada was still tied to the UK since the Constitution remained in the UK. This last point, the failure to bring the constitution home, would be an ongoing point of contention even after patriation in 1982.

Canada became fully sovereign with the patriation of the constitution through the Constitution Act, 1982. However, this was not a foregone conclusion. Canadian leaders had been trying to bring the constitution home since the 1920s. For PM Pierre Trudeau, the patriation of the constitution had been an important but seemingly unreachable objective. However, two events opened an opportunity for him to achieve his goal. First, the Liberals under Trudeau retook the Government in 1980 after PM Joe Clark’s minority Progressive Conservatives lost the confidence of the house after only 9 months. Second, the first Québec referendum in 1980 provided the Liberals with a platform to argue for the patriation of the constitution. However, the first obstacle was defining what was required to successfully do so. While an important part of any constitution is the ability to make amendments, the BNA was still in force and had no amending formula despite the British suggestions to do in 1931. Between 1931 and 1982, the Constitution had been amended several times at the request of the Canadian Parliament sometimes with and sometimes without the support of the provinces. When the amendment dealt with strictly federal issues, like adjusting representation in the House of Commons (1946, 1952, 1974), provincial agreement was not required. When dealing with issues that dealt with provincial jurisdiction, like the issues of pensions (1951), then provincial agreement was sought before asking the British Parliament to amend the constitution. This created a constitutional convention that provincial agreement would be acquired before asking the British Parliament to amend the Constitution when provincial interest was involved. And patriation was definitely one of those issues that would become a battle between the provinces and the federal government.

Figure 3-8: “Canada plays constitution tug of war.” Source: https://albertaonrecord.ca/is-glen-3744 By: Innes, Tom, Glenbow Archives Ref. Code: GLEN glen-1283-is-glen-3744 Permission: This material has been reproduced in accordance with the University of Saskatchewan interpretation of Sec.30.04 of the Copyright Act.

The patriation of the Constitution itself was less controversial as very few changes to the BNA were proposed. However, PM Trudeau wanted to include that aspirational part of the constitution; that symbolism that we spoke of earlier. Therefore, he proposed a unilateral patriation of the Constitution that would also include the Charter of Rights and Freedoms as well as explicit financial equalization formulas between the provinces. Québec, Alberta, Manitoba, Prince Edward Island, Newfoundland and British Columbia took the federal government to court over the proposal. The court ruled in favour of the federal government’s legal right to submit the proposal to the British Parliament. However, the court also ruled a constitutional convention requiring provincial agreement did exist and that the federal government was in breach of this convention. In response, PM Trudeau convened a federal-provincial conference in November of 1981.

Trudeau and Chrétien at First Minister’s Constitutional Conference By: Aislin (alias Terry Mosher) via McCord Museum http://collections.musee-mccord.qc.ca/en/collection/artifacts/M983.227.53 CC BY NC ND 2.5

An agreement was reached with 9 of the provinces. The breakthrough came via the ‘kitchen accord’ whereby three attorney generals, Jean Chretien (Federal), Roy Romanow (SK), and Roy McMurty (Ont), compared notes in an unused kitchen, attempting to find a compromise position. A key provision emerged, the notwithstanding clause: the ability of Parliament or the provincial legislatures to override most Charter provisions by a simple declaration to that effect when passing legislation. The only caveat is that if the notwithstanding clause is invoked, it must be renewed every five years.

Figure 3-10: “Peter Lougheed and René Lévesque” Permission: Public Domain/Library and Archives Canada Retrieved from
http://collectionscanada.gc.ca/pam_archives/index.php?fuseaction=genitem.displayItem&lang=eng&rec_nbr=3575754

The second compromise was over the amendment formula: the procedure which details the requirements of constitutional change. The preference of the provincial first ministers was adopted. Amendments affecting federal jurisdictions would require a joint resolution by the House of Commons and the Senate as well as by a resolution of the legislative assemblies of at least 2/3rds of the provinces, representing at least 50% of the population of Canada. Dissenting provinces were permitted to opt-out of all amendments that affected their status and powers. Further important compromises came about from outside lobbying: affirmation of Aboriginal Rights in Section 35 of the Constitution as well as Section 25 of the Charter; the recognition of women’s rights in Section 28 of the Charter. With these compromises, the Canada Bill was presented to the British Parliament and passed as the Canada Act in March 1982. In Ottawa on April 17^th, the Queen proclaimed the Constitution Act, 1982, completing patriation.

Figure 3-11: “Signing of the constitution/Signature de la Constitution” Source:  https://www.flickr.com/photos/28853433@N02/7195948016 Permission: CC BY-NC-ND 2.0 Courtesy of Robert Cooper.

However, there was one blight on the patriation of the Constitution: the lack of Québec’s assent. Québec Premier Lévesque had been excluded from the compromises being debated at the 1981 conference and presented with a fait accompli. He argued the Constitution and specifically, the Charter threatened cultural security, especially regarding language rights, and that it failed to recognize the needs of Québec as a ‘distinct society’. Further, many in Québec believed the means that the patriation happened and the new amending formula adopted, contravened the compact theory of confederation which gave Québec a veto over constitutional change. In opposition to the Charter, the Québec government introduced Bill 62 in 1982 which would append to each new Québec law the notwithstanding clause. There were several court battles over Bill 101, Charte de la langue française including the limits placed on enrollment in English schools and the prohibition of non-French on business signs, battles which the Québec government lost. To this day Québec has not been brought into the Constitution despite two serious efforts, the Meech Lake and Charlottetown Accords, which will be discussed in a bit.

Major changes wrought by the new Canadian Constitution included the adoption of five amendment formulas. These range from the need for unanimous support to fundamental changes to the government’s institutions and decision making, including changes to the amendment formulas, as well as changes that can be made by individual provincial legislatures on their own constitutions. Through this system, important provisions are entrenched: the embodying of provisions in a constitution so they are protected and can be changed only by a formal amendment procedure. However, this amendment system is very rigid with a high threshold often necessary to make changes. Since patriation, there have only been 11 minor amendments to the Constitution.

Other important changes in the Constitution Act of 1982 included how to deal with natural resources, issues with Canada’s Indigenous Peoples, and equalization payments. In terms of natural resources, provincial powers were enhanced to include the control over the distribution of the primary production provided it does not discriminate against other parts of the country in prices or supplies. Further, the provinces can levy indirect taxes on the primary production of natural resources. However, the federal government can legislate on these issues and in cases of conflict, the federal law will prevail. In terms of Indigenous Peoples, three provisions were included. The first states that the Charter will not abrogate or derogate any Aboriginal rights, including treaty rights. The second affirms all existing Aboriginal and treaty rights of the Aboriginal peoples of Canada, including status Indian, Inuit, and Métis peoples. The third requires the PM to convene a conference of first ministers within a year of patriation that includes on the agenda constitutional matters affecting Aboriginal peoples. Finally, equalization payments between the provinces were included in the Constitution Act in order to promote equality of opportunity and the wellbeing of Canadians regardless of where they reside.

Figure 3-12: “Canadian Charter of Rights and Freedoms” Source:  http://www.justice.gc.ca/eng/csj-sjc/charter-charte/resources-ressources.html Permission: Courtesy of Department of Justice, Non-Commercial Reproduction.

However, the most significant impact brought by the partition of the Constitution was the adoption of the Canadian Charter of Rights and Freedoms. The Charter brings the symbolism that many look for in a constitution.

As its name implies, the Charter entrenches a number of rights and freedoms. It protects:

• Fundamental freedoms: freedom of conscience, freedom of religion, freedom of thought, freedom of belief, freedom of expression, freedom of the press and of other media of communication, freedom of peaceful assembly, and freedom of association.
• Democratic rights: the right to vote and to be eligible to serve as a member of a legislature; limits the maximum duration of legislatures to five years; an annual sitting of legislatures is required as a minimum.
• Mobility rights: the right to enter, remain in, and leave Canada. Citizens and Permanent Residents have the ability to move to and take up residence in any province to pursue gaining a livelihood.
• Legal rights: the right to life, liberty, and security of the person; freedom from unreasonable search and seizure; freedom from arbitrary detention or imprisonment; right to legal counsel and the guarantee of habeas corpus; rights in criminal and penal matters such as the right to be presumed innocent until proven guilty; right not to be subject to cruel and unusual punishment; rights against self-incrimination; rights to an interpreter in a court proceeding.
• Equality rights: equal treatment before and under the law, and equal protection and benefit of the law without discrimination
• Linguistic Rights: English and French are the official languages of Canada and New Brunswick; the English and French-speaking communities of New Brunswick have equal rights to educational and cultural institutions; the right to use either official language in Parliament or the New Brunswick legislature; the statutes and proceedings of Parliament and the New Brunswick legislature are to be printed in both official languages; both official languages may be used in federal and New Brunswick courts; the right to communicate with and be served by the federal and New Brunswick governments in either official language; other constitutional language rights outside the Charter regarding English and French are sustained; existing rights to use languages besides English and French are not affected by the fact that only English and French have language rights in the Charter
• Education Rights: rights for certain citizens belonging to French and English speaking minority communities to be educated in their own language

Other specific entrenched rights include:

• Section 25 which states that the Charter does not derogate existing Aboriginal rights and freedoms. Aboriginal rights, including treaty rights, receive more direct constitutional protection under section 35 of the Constitution Act, 1982.
• Section 26 clarifies that other rights and freedoms in Canada are not invalidated by the Charter.
• Section 27 requires the Charter to be interpreted in a multicultural context.
• Section 28 states all Charter rights are guaranteed equally to men and women.
• Section 29 confirms the rights of religious schools are preserved.
• Section 30 clarifies the applicability of the Charter in the territories.
• Section 31 confirms that the Charter does not extend the powers of legislatures.

Figure 3-13: #Charter35 Source: http://www.justice.gc.ca/eng/csj-sjc/charter-charte/resources-ressources.html Permission: Courtesy of Department of Justice, Non-Commercial Reproduction.

However, these rights are not all unassailable. Section 1 allows the courts to restrict these freedoms if such breaches “can be demonstrably justified in a free and democratic society”. Section 1 has been applied in the case of hate speech (R v Keegstra, 1990) and in the case of obscenity (R v Butler, 1992). Section 33 allows the federal and provincial legislatures to use the notwithstanding clause to create law that contravenes Charter rights with the exception of democratic and mobility rights.

Since the patriation of the Constitution, there have been two attempts to bring Québec in. The first was the 1987 Meech Lake Accord. The Accord was negotiated by the Government of Brian Mulroney in secrecy, trying to cobble together an agreement that would meet the needs of key stakeholders. This included recognizing Québec as a distinct society and increased provincial powers as well as negotiations over the provision of federal funding for social programs. The Accord had the approval of the first ministers but opposition began to grow in the public, encouraged by the agitation of former PM Trudeau. To be approved, the Accord had to be ratified within three years by Parliament and the 10 legislatures. The deadline was June 23^rd, 1990. Québec was the first to ratify the Accord. However, on the final date for ratification, Elijah Harper an MLA in the Manitoba legislature, withheld his consent and the Accord did not come to a vote.

Figure 3-14: “Elijah Harper” Source: http://www.cbc.ca/news/canada/manitoba/elijah-harper-key-player-in-meech-lake-accord-dies-at-64-1.1316388 Permission: This material has been reproduced in accordance with the University of Saskatchewan interpretation of Sec.30.04 of the Copyright Act.

The federal government suggested a three-month extension but this provided an out for those who feared the growing discontent to the Accord or those who personally opposed it like Premier Wells of Newfoundland and Labrador. The Accord failed to be ratified and this failure prompted Lucien Bouchard, a cabinet member of the Progressive Conservatives, and a mix of both Liberal and PC MPs from Quebec to form a new political party, the Bloc Québecois.

Figure 3-15: “Joe Clark” Source: https://commons.wikimedia.org/w/index.php?curid=5122978 Permission: CC BY-SA 3.0 Courtesy of Canada Jack aka Jeremy Gilbert.

The second attempt to bring Quebec into the Constitution was the 1992 Charlottetown Accord. Thinking it had learned its lesson from the Meech Lake Accord, the Government of Brian Mulroney proceeded with the Charlottetown Accord much more transparently. PM Mulroney appointed former PM Joe Clark as a Minister of Constitutional Affairs. There were four bodies created to engage the governments and special interest groups who sought to influence the final Accord. There were five national conferences held to discuss ‘Shaping Canada’s Future’ whose findings constituted a federal report entitled ‘A Renewed Canada’. All of this was brought to the negotiations that included the federal, provincial, and territorial governments as well as the Assembly of First Nations, the Native Council of Canada, the Inuit Tapirisat of Canada, and the Métis National Council. The Accord dealt with provincial-federal issues, usually to the benefit of the provinces, including jurisdiction, funding, and cultural affairs. It addressed the issue of Indigenous self-government. It addressed Quebec as a distinct society. It addressed Senate reform. It addressed adjustments to the composition of the House of Commons. The Accord had the approval of all the stakeholders. Yet PM Mulroney decided to have a national referendum on the Accord, arguably in response to the criticism levelled against his government during the Meech Lake Accord. It failed, perhaps more due to the unpopularity of the Mulroney Government than the Accord itself. The result of this failure is a persistent fatigue around constitutional reform in Canada.

In the end, Canada did secure its full independence via the patriation of the Constitution in 1982. However, the symbol of the Canadian Constitution has been divisive. The process of patriation pitted the federal government against the provincial governments and English Canada against French Canada. Indigenous Peoples and women had to fight for their rights to be included. The failure to bring Québec on board and the failure of subsequent attempts at amending the Constitution, all point to a country that is deeply divided. However, it also used the courts to peacefully handle some of these divisions. It created the Charter of Rights and Freedoms which has replaced the American Bill of Rights as the most emulated constitutional document in the world. If the constitution is the backbone of Canadian democracy, it is fitting that it has tensions. Canada is constituted by tensions. But it is the means used to address these tensions that matters. As we said at the beginning of this module, Canada is a social construct. It is created and recreated through the practices of its leaders and citizens. The narrative around the patriation of the Constitution forms part of that social construct.