Today I received a few questions from journalist Lee Harding about the reason for Canada’s Constitution (the BNA Act of 1867, to which was added the Charter of Rights and Freedoms of 1982).
He wanted some thoughts on why we have so easily allowed judges to over-ride the principles of our original constitution – wouldn’t we have been better off to have kept the Common Law as our standard, etc? I was squeezed for time, but below was my answer.
Hell Lee … I am no expert. But off the top:
1) The BNA Act was created to unite the then existing colonies in a federal union, and to partition the duties allocated to the provinces and the federal government, spending powers, and the like. It was not intended to guarantee individual rights beyond those such as habeas corpus, innocent until proven guilty, protections vs libel and slander, protection of property rights, etc. that were already protected in a long and strong tradition of British common law, and were assumed inviolable. Exceptions were allowed for French code law in the province of Quebec only. In its essence the BNA Act was mostly an administrative document that barely touched on individual rights as these were assumed already to be strongly protected by British law.
2) Trudeau’s 1982 Charter was created, and incorporated into the BNA Act in 1982 as the “Supreme Law” of Canada, and from this writer’s perspective at least, starting with its Section 1 invitation to judges to interpret rights anew, it amounted to the imposition of a French-style code-law system upon our ancient British Common Law and Parliamentary system. I refer to this document as “the Revenge of Montcalm” because although the British won the battle of the Plains of Abraham, the French, in their top-down style of arguing from abstract legal precedent rather than from concrete case law, have won the ideological and juridical war for control over the moral and ideological nature of our union.
3) Despite its variation by region, etc. (recall Voltaire’s complaint about travelling in Britain: “You English change the law as often as you change horses!”), our long tradition of common law was more secure for traditional citizen rights than the present Charter because its carefully-argued judgements were all based on rationalizing actual conflicts of real experience, rather than abstract concepts, and these were kept as precedents for future courts, and stored in documents, leases, contracts, and other real forms of evidence of citizen rights. Pierre Trudeau hated the British variation in law and also hated Parliamentary debates (describing our elected parliamentarians as “a bunch of losers”), and preferred a single national interpretation all laws as rationalized, not from common actual citizen experiences, but from abstract principles invented by judges, and from judicial speculations by progressive jurists about what rights ought to be, rather than conclusions about what rights in historical fact and court judgements have proven to be.
Best I can do, off the top