Canada in the World: Comparative Perspectives on the Canadian Constitution

“A living tree” was how Professors David Cameron, Yale University, and Richard Albert, Boston College and 2015-16 Canadian Bicentennial Visiting Associate Professor of Political Science at the MacMillan Center, described Canada’s constitution at its 150th birthday. They were presenting their new co-edited work on November 15, which emerged from a conference Professor Albert organized at Yale in the spring of 2016 as a part of his visiting professorship. The book, Canada in the World: Comparative Perspectives on the Canadian Constitution, comprises chapters by 20 distinguished authors, each one asking and answering key questions of origin, operation or impact.

Event participants heard how the constitution had come to be treated as an evolving document by Canadian legal scholarship, generally eschewing “originalist” approaches to interpretation. What were termed the ‘Canadian values’ of democracy, federalism and diversity may indeed be present in other constitutions, but the balance that has been struck has been specific to the confederation’s particular historical and social circumstances.

One such issue was mentioned as the counter-revolutionary origin of the state, and its subsequently much more incremental approach to independence from Britain than its southern neighbor. While a constitution was formally laid-down in 1867, Canada was clearly a recognizable entity before that date, and also has continued to consciously amend and reshape itself over the subsequent decades.

That long process has led to a Charter of Rights and Freedoms that is relatively youthful among modern democracies – passed in 1982 – and so the Canadian constitution deals in more contemporary issues in more modern language than many other constitutional bills of rights. The presence of clear treatments of multiculturalism and gender rights was indeed argued to be one of the reasons that those tasked with engineering new democratic constitutions have in the modern era looked to Canada for inspiration and example.

Alongside specific circumstances must also come specific challenges, and discussion turned to the interrelated questions of language politics and the long-running debate over Québec sovereignty. Original provisions such as, for example, guarantees of publicly-funded schooling for the minority Protestant community in Québec and minority Catholic community in Ontario have endured, while others, such as the creation through advisory rulings of a recognized process for secession, have been established in response to pressing political issues that have emerged over time. All of these also intersect with how to properly recognize and accommodate the indigenous rights of First Nations, not least those who are a minority-within-a-minority in northern Québec. That such debates and evident constitutional tensions persist is an important reminder that even after a century and a half of evolution and adaptation not all questions have been conclusively answered. The maple tree may still need to grow a few more branches.

Written by Marco Biagi, a Class of 2022 political science graduate student.