This last week has been one of important anniversaries. First, on April 9, it was the 95th anniversary of the Battle of Vimy Ridge. Then, on April 15, it was the 100th anniversary of the sinking of the Titanic. And finally, tomorrow is the 30th anniversary of the repatriation of the constitution.
The Constitution Act (1982) represents a major milestone for Canada. Its greatest contribution was the incorporation of the Charter of Rights and Freedoms into the constitution. While the Canadian Bill of Rights was passed in 1960 and did offer protection of some rights, it was also strictly passed as an act of parliament and left parliament with the ability to rescind any of its contents at it leisure. By placing the Charter in the Constitution, it restricts the ability of parliament to change its contents unless through the amending formula, also contained in the Act.
Some parts of the Constitution and Charter have raised questions. The first is the point that Quebec was not a signatory of the constitution in 1982 and two attempts to integrate the province into the fold have failed. However, this is probably not as great an issue as some have made of it, in that the province has used section 33(1), the “notwithstanding” clause on several occasions and it can be argued that by using part of the constitution in court of law, they have informally adopted it.
One of the main sections of the Charter is section 15 (1), which states that: “Every individual is equal before the and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.”
This is also one of the most contentious parts as well, since it has been used for a number of Supreme Court of Canada cases whose outcome has sparked controversy. It has led many to condemn the clause since it can be seen as setting the Supreme Court in a position to “make laws,” a role relegated to parliament. This is a bit of a specious argument since acts passed that have not withstood a Charter Challenge usually did so because the acts in question should have been better drafted, rather than the Supreme Court directly intervening in the making of law.
Have there been decisions that you didn’t like? I think all of us could find a decision that makes us scratch our heads and wonder what someone was thinking. We could probably all find one or two that we definitely disagree with. However, these illustrate a very significant concept.
While you might not agree with some of these, you should consider them in the framework of what these indicate. We have a constitution that states that everyone is equal before the law. And, not only does it say that everyone is equal, but we actually enforce that principle. While you may not agree with how it has worked out sometimes, this is a thing of which we can all be damned proud…