The Canadian Constitution – a living treeWhen the Constitution of Canada is mentioned, most people think of the 1982 Constitutional Act passed by the Canadian parliament and signed by all provinces except Quebec.
The Canadian Constitution – a living treeWhen the Constitution of Canada is mentioned, most people think of the 1982 Constitutional Act passed by the Canadian parliament and signed by all provinces except Quebec. However, our constitution is much more than this; indeed, its main piece of legislation may be the British North America Act of 1867. There are also other pieces of legislation, ones which established new provinces and territories beyond the original four that can also be considered constitutional acts. In addition, several pre-confederation royal proclamations are deemed to have constitutional status, and to complete the picture, there are “constitutional conventions” – unwritten procedures that are
generally followed by the government in framing legislation and laws. Altogether there are about 30 statutes and conventions that makeup the Canadian constitution.
All of these acts and conventions have one purpose: to provide a framework for the governance of Canada and its provinces and territories. The concern with the constitution is this: how does the constitution fare in the face of changes brought on by modern technological, economic and social changes?
The desire is to have a fixed set of standards that define basic, universal requirements that remain constant and also be able to respond to new
and changing demands. Following a 1929 ruling, Canadian politicians and legal experts have accepted the idea that our constitution is a living tree; it is to be interpreted in a broad and progressive manner to meet new situations brought about by changes. And so, our courts have, over time, given different interpretations to issues such as abortion, the right to die, freedom, privacy and security. In a sense, this living tree interpretation of the constitution ensures there will always be constitutional challenges before the courts, but there are natural limits beyond which the constitution must be adhered to in its original intent.
One issue that has created a challenge to the “natural order” is senate reform. Many Canadians feel the current method of appointing senators is not democratic and others want the powers of the Senate changed; some even want it abolished. But, until there is agreement among the provinces and federal government, the current Senate rules remain.
What makes an agreement? Is a referendum necessary? If a referendum is held, is the result binding or can the provincial and federal powers treat the results as just an opinion poll? Can the results of such a referendum be challenged in court? Some of these questions can only be answered by convention rather than by written statutes.
Compared with the United States, our constitution may seem messy and complicated, but it’s a good reflection of our society in all its complexities; perhaps not perfect, but essential and essentially reasonable. As citizens of a free and democratic country, we should be familiar with its basic tenets, be prepared to question some of its provisions, and accept it as the essence of our efforts to create a just society.
Pontiac Perspective Peter J. Gauthier