Canada’s constitution – 150 years old but still a work-in-progress

Wednesday, July 5, 2017

On July 1, while Americans prepared to celebrate the Fourth, Canadians celebrated Canada Day and, this year, the 150th anniversary of the British North America Act 1867. In that year, the British government combined the provinces of Canada, New Brunswick and Nova Scotia into a single federation of four provinces – Ontario, Quebec, New Brunswick and Nova Scotia – governed by a constitution modeled largely on its own but modified to reflect the territorial and cultural particularities of the new country.

1867 was not a grand constitutional moment in the same sense that 1787 was for Americans. It was not a moment in which an independent people came together and decided how they wished to govern themselves. It was, instead, just one more of the many British North American Acts enacted by the British government as it administered its colonial territories. It would take 64 more years before the country obtained its independence with the Statute of Westminster in 1931, another 18 years after that before its Supreme Court became the final court of appeal, and another 33 years after that before it completed the long trek to full independence by patriating its constitution, and with that the power to amend the constitution, in 1982. Nevertheless, even if not grand on the American scale and only one step in a long process of gaining its independence that took more than 100 years, 1867 deserves to be celebrated as the moment when the British colonies of North America were incorporated into a single federation.

Although 150 years old, because the repatriated Canadian Constitution included the 1982 Charter of Rights and Freedoms, it is a surprisingly modern constitution: The entrenched Charter guarantees citizens an array of rights and freedoms more expansive in range and applicable to more of the issues that arise in their lives than those guaranteed by many older constitutions. For example, section 15 of the Charter states that all individuals are equal before the law and have the right to the equal protection and benefits of the law without discrimination, section 27 commits the country to preserving and enhancing its multicultural heritage, and section 28 states that the rights and freedoms referred to in the Charter are guaranteed equally to male and female persons. Grounded in a bedrock belief in the full equality of all individuals, Canadians not only accept but celebrate their diversity and welcome their country’s openness to difference – an openness perhaps most famously exemplified when Prime Minister Justin Trudeau, meeting arriving refugees from Syria at the Toronto airport last winter, told one little girl, “You are home now.”

If the sesquicentennial is an appropriate time to celebrate Canada’s old but thoroughly-modern Constitution, it is also an appropriate time to recognize the constitutional challenges that remain today. One of the most important involves the still-ambiguous place of Quebec in the constitutional order. The fact that Quebec did not consent to the 1982 patriation of the Constitution, coupled with the subsequent failures to obtain its consent, means that Canadian federalism, while taking seriously the role of the provinces, still has not taken full account of the country’s biculturalism. As a result, there has been some continuing uncertainty about Quebec’s place in the constitutional order – perhaps best reflected in the 1995 referendum in Quebec that was very nearly won by the separatists. Is Quebec one of Canada’s two founding nations? Is it a “distinct society”? Or is it just one of the four original provinces? More than thirty years after patriation, those questions remain unanswered.

Another long-standing challenge – one that, like Quebec, was present before the creation of Canada in 1867 – involves the place of the Indigenous peoples in the constitutional order.  After 1665, when France agreed to a peace treaty with four nations of the Iroquois Confederacy, more than 500 treaties were negotiated with Indigenous peoples.  The treaties typically dispossessed them of their ancestral territories and facilitated their relocation in exchange for continued access to the territories for hunting and fishing.  In the late nineteenth century, the courts began to interpret the treaties as a type of contract that was subject to legislative authority, which meant the rights could be, and often were, unilaterally regulated or terminated. The Constitution Act 1982 recognized and affirmed the existing aboriginal and treaty rights and ushered in significant changes in the relationship between the Indigenous peoples and the state. Nevertheless, their precise place and that of their governments in the constitutional order remain ambiguous.

The 150th birthday of the Canadian Constitution deserves to be celebrated. But it is also an appropriate time to recognize there is still some unfinished business, constitutionally speaking, and that, as with any constitution, the one Canada received in 1867 remains, 150 years later, a work-in-progress.  

David R. Cameron is a professor of political science and a member of the Canadian Studies Committee of the Yale MacMillan Center. He and Richard Albert, a professor of law at Boston College Law School and a visiting fellow at the MacMillan Center in 2015-16, are the editors of Canada in the World: Comparative Perspectives on the Canadian Constitution (Cambridge University Press, forthcoming).