It’s been a long time since Canada had a king; I recall when King George VI died, it was 1952, in February actually, and I was in the 4th grade … we had, if memory serves, a school assembly ~ a major event in those days in a small, rural school ~ and the principal, somewhat emotionally as I recall, told us the sad news. Most people are not as old as I and, therefore, most have never known a monarch except our most gracious sovereign lady, Queen Elizabeth. What I have noticed, over the years, is that we have lost our “connection” with the monarch ~ I think the reason my elementary school principal was somewhat emotional was that he, just a few years earlier, had been in England, getting ready to invade Europe and, I think he told us that he had been inspected by the King … inspecting troops was one of many symbolic duties that connected Canadians to their sovereign. But today, I think, most Canadians have little real connection to Queen Elizabeth ~ I suspect she is highly regarded but more as a global celebrity of the highest order than as a symbol of our country and the causes for which we are wiling to send our sons and daughters into battle. In fact, since the mid 1960s, the Government of Canada has tried very hard to weaken the connection between the sovereign and the people, and many, many Canadians find the notion of a “foreign” monarch anachronistic, to say the least. Of course, Queen Elizabeth is a Canadian, just as Canadian as if she’d been born here, and she is Queen of Canada quite separately from being Queen of Australia, New Zealand and the United Kingdom and so on and so forth; but I’m fairly sure that those fine constitutional niceties are lost on 98% of Canadians.
The other thing I’ve noticed is that, since the 1980s, the Charter of Rights has gained in stature, just as the monarch has declined … it, the Charter, is now “on the throne,” so to speak, it is the king.
Now, this new “king” and I have a strained relationship, at best …
I believe, absolutely and without equivocation of any sort, that the supremacy of parliament lies at the very core of the most successful system of democratic government ever devised. I think that written constitutions are both unnecessary, because the common law, interpreted by an independent judiciary can, and does, guarantee all the right and freedoms that anyone can put in 100 charters, and also problematical because, of necessity, they must reflect the concerns of the era in which they were written. The famous 2nd Amendment to the US Constitution, for example …
… was, I suspect, seen as a clear necessity given America’s strategic circumstances in the late 18th century, and it was a logical extension of the English common law which held that the right to keep arms was an “auxiliary,” but limited, right that fell from the “natural” right to self defence and the natural right to life. But look at all the problems ~ social, legal and political ~ that it has caused over the centuries, all because it was an 18th-century solution to a 17th-century problem. Look, equally, at language rights in the Canadian Constitution of 1982. I’m not arguing against linguistic rights, as such, I’m just against enshrining a 1960s solution to a 1880s problem in a written constitution.
We have, as retired Professor Claude Bélanger wrote back in 2001, “a mixed system” … [because] … “The introduction of the Charter of Rights and Freedoms has curtailed, to some extent, the principle of Supremacy of Parliament in Canada. It cannot be said that the legislative bodies in Canada can do as they please, as was the case once upon a time. They have been restricted by specific provisions of the Charter. Neither can it be said that Canada has moved into a system of unfettered Supremacy of the Constitution (Charter). The restrictions of the Charter are too considerable not to recognize them.” He concluded that “In a country that prides itself to be reasonable and to govern by compromise, the Charter may be said to be typically Canadian.” I’m afraid that when it comes to our rights and freedoms I’m not sure that compromise is the best course of action.
There are flaws if the supremacy of parliament is not checked by the judiciary; and even when it is there are problems if the judiciary is not independent; but, going back to Henry II who is often credited for laying the foundations of the English Common Law, and even farther, in the times of the Anglo-Saxon kings, monarchs have been constrained (or contained) by parliaments (witans) and parliaments have been constrained by law officers, including the shire reeves (now sheriffs) prior to the 11th century. The system is elegant and is so thoroughly grounded in custom and convention that it’s weight in law is every bit as “heavy” as any written charter, including e.g. the US Constitution or our own Charter of Rights and Freedoms, can be.
But there are obvious flaws in any system, like America’s, where the Constitution is supreme.
So, isn’t a mixed system better? No, I think not.
So, back to my “if wishes were horses” theme, just as I wish that the entire Khadr clan had never been admitted to Canada (during Pierre Trudeau’s time as prime minister) so I wish that, just a few years later, I had been inside Prime Minister Pierre Trudeau’s mind when he called British Prime Minister Thatcher to lay the political groundwork for repatriating the Canadian Constitution. (I have read, from trusted sources, that he did begin with a phone call.) If my wishes came true I would have totally reversed his plan. Instead of discussing ‘patriation,’ I would have asked Mrs Thatcher simply to repeal the entire 1867 British North America Act. Britain would, de facto, have simply washed its political hands of Canada. There would be no British law that said Canada existed at all.
I (speaking through Prime Minister Pierre Trudeau’s mouth) would have said that timing was important and that I would ask her to coordinate the repeal of the BNA with the success of a handful of bills we, the Government of Canada, would push through the House of Commons:
- A Division of Powers Act ~ essentially §91 and §92 of the BNA Act. This is something a federal-state must have;
- A Parliament of Canada Act that would define the structure and electoral procedures for the Senate, House of Commons and Provincial Legislatures ~ yes we would have an elected Senate; and
- A Courts Act that would define local, provincial and federal courts, including the Supreme Court of Canada and would dictate the process for selecting, appointing and recalling judges.
I would have asked Mrs Thatcher to coordinate her motion to repeal the BNA Act with the passage, in the Senate, of my new bills.
Mrs Thatcher might have asked if I had legal and popular support for this. I would have answered “Yes,” even though Pierre Trudeau had fought long and hard to patriate a written constitution, because the key Supreme Court ruling said that the national parliament could ask the UK to repeal the BNA ~ there were, the Court said, “no legal limit “to the power of the Houses [the House of Commons and the Senate] to pass resolutions” existed.” Since my new Division of Powers Act kept provincial powers intact I would have been on solid legal and constitutional ground.
Mrs Thatcher might have mused that a few mischief-making countries might try to challenge our sovereignty, but both she and I would have laughed it off … no one would seriously challenge Canada’s sovereignty just because the British Parliament repealed a 125-year-old Act.
There would have been one or two immediate domestic challenges but I am confident that the Supreme Court, led then (1981/82) by Bora Laskin, would have decided that, after 125 years, we were, by constitutional convention, a constitutional monarchy and a federal state with a Westminster model of responsible parliamentary government and that our Constitution, although not written down anywhere, was, substantially, similar to the (equally unwritten) British Constitution, and that, thanks to that unwritten Constitution they, the Supremes, would be the final arbiters of the constitutionality of any law.
Can anyone seriously say that Britain, for example, is less free and that Britons have fewer or less well-entrenched rights than Canadians even though they have no written constitution and, certainly, no charter of rights? Now, the English Bill of Rights (1689), which is still in force in Canada, which was added to the Petition of Right (1628) and the Habeas Corpus Act (1679), formed the basis for English liberty and was, in most cases, the source of the US Declaration of Independence and the US Constitution... but they are only acts if parliament, not great charters that end up taking on the attributes of a sovereign, becoming, de facto, King Charter.
It was John Locke, not Pierre Trudeau, who laid out our rights and freedoms for us. Pierre Trudeau simply restricted them because he was, I believe, always uncomfortable with the English liberal tradition. He was, in heart and mind, a continental European by inclination; he wanted everything codified and written down and administered by bureaucrats; he, essentially, didn’t trust the will of the people. Consider, for example, the right to private property ~ a right that Locke defined as being quite fundamental and essential to the efficient development of society. The Progressive Conservatives wanted Prime Minister Trudeau to include it in his Charter; he declined, saying that Ed Broadbent’s NDP didn’t want it, and he needed NDP support in the House of Commons and in the country. But I have heard (no citation) that Mr Broadbent, who really liked the idea of a charter, was willing to allow the right to property in if it would help to get PC support, because he believed that the Charter would be (politically) safer in the future if it had broad (three) party support. I think that Pierre Trudeau, as much of a socialist as Ed Broadbent ever was, simply didn’t want property rights for Canadians because he thought they would get in the way of his own (and future) progressive legislation. In effect, and in my opinion, Prime Minister Trudeau wasn’t especially interested in the individual rights of ordinary Canadians, he wanted his vision of the overarching state to prevail over the will and natural rights of individual Canadians.
As Claude Bélanger said, the Charter is a compromise … individual rights are narrowly defined before they ever get to a court of law. Group rights are elevated. The Charter doesn’t do much for us, as far as I can see, and it may be doing things to us. the old law of unintended consequences was never repealed.
I don’t like the Charter very much, I certainly don’t like being a “subject” of King Charter. Will it ever go away, will we ever adopt a more radical, more democratic, less European, common-law based unwritten constitution? Not in my lifetime, but …