17 April 2007

The Charter at 25

A quarter century ago today Prime Minister Pierre Trudeau achieved his highest political dream of patriating Canada's constitution. Prior to that point this country had no entrenched constitutional documents on a par with the United States Constitution or the German Grundgesetz. We had the British North America Act of 1867, but this was no more than an act of the British Parliament, its validity originally resting on Canada's legal subordination to that Parliament. After the Statute of Westminster of 1931, Canada had the right to adopt its own entrenched constitution, but the anomaly of Canada's subordinate constitutional status continued right up to 1982, primarily because for 50 years federal and provincial leaders could not agree on how to amend such a document. With the "gentle" urging of Trudeau, this all changed on 17 April 1982, when the Queen signed the new constitution in Ottawa.

Patriating Canada's constitution
After this date the British North America Act became, with some modifications, the Constitution Act, 1867, an entrenched document possessing the status of "supreme law of the land," to quote its American counterpart. More significant yet was the adoption of the Constitution Act, 1982, a completely new document consisting of a Charter of Rights and Freedoms and the formulae for amending these documents. Among the consequences of the adoption of entrenched constitution acts was the empowering of the courts, which now had the authority to invalidate federal and provincial laws deemed to conflict with these acts. Some would argue that this has strengthened constitutional government against the threat of majoritarian tyranny. Others see it as having diminished the democratic character of our political system and increased the threat of judicial tyranny.

Here, from the CBC archives, is a video timeline of the lengthy process of giving Canada its own constitution, as some would put it.

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