Introduction
The Constitution Act of 1982, which introduced some of the most important changes to the Canadian Constitution since it came into force in 1867; has and continued to play a significant role in changing the framework of Canadian politics (CDOJ, 2016). These changes, on the whole, have had a substantially positive effect on the Canadian political community.
In order to understand the benefits of Canadian constitutional reform on the political community, one must first understand how the Constitution had arranged, regulated, and influenced Canadian politics in the past. The Canadian Constitution of 1867 had a number of characteristics that would later develop into points of tension and agitation for constitutional reform (Hogg 1981, pp 335-337). First, there was the fact that the earlier Canadian Constitution held that the supreme law of the land generally rested with the nation’s federal parliament and provincial legislatures (Lesson 12). In other words, the federal parliament and the provincial legislatures both had the ultimate authority to draft, enact, amend, and determine which laws conformed to or violated Canadian constitutional requirements (Lesson 12). While there was a separation of responsibilities between the federal parliament and the provincial legislatures, generally where laws were in conflict, such as in immigration or other areas of concurrent authority, the laws of the federal parliament were supreme (Lesson 12). Moreover, since the Constitution fell under British law, amending it required approval from the British parliament (Brook 2015, pg.245). Furthermore, the former Constitution did not establish a specific means of determining the powers and rights of the people that are and should be protected from state interference.
Discussion
Under such a political framework, it was not long before disagreements and calls for reform began. The French-Canadians, for instance, who mainly lived in Quebec, pointed out that the Constitution facilitated discrimination against them and their interests. Indeed, while they may have been able to control what they could do in Quebec based on their majority; whatever they could do was subject to a federal parliament with few French-Canadian members (Brooks, 2015, pg.240). This is a situation that has even resulted in an attempt by Quebec to secede from Canada (SCC, 1998) Similarly, Canada’s western provinces complained that eastern bias in the federal parliament for pro-manufacturing as opposed to agricultural friendly policies, was adversely affecting how they developed, as well as the extent of their development. Perhaps most importantly, however, was the fact that citizens in all provinces neither had a means of protecting themselves from random state abuse, such as a Bill of Rights; nor the ability to amend the Constitution on their own without first getting British approval.
The Constitutional Act of 1982, however, went a long way to introducing changes into the Canadian political community and politics that cannot be described as anything but positive. The first positive effect of the reforms was that the supremacy of the Canadian legislatures, changed significantly with the passage of the Constitutional Act of 1982 (CDOJ, 2016). Indeed, the practical effects of the reform was to move supremacy of law from the parliament and legislatures to the Constitution itself. To be sure, with this reform no one individual, governmental body, or organization, no matter how powerful, does not stand above the law. In other words, everyone and everything is subject to the requirements of the law. In terms of positive effects on the political community, making the Constitution the supreme law of the land, facilitates a deepening and expansion of the rule of law principle, while at the same time decreases the rule of man situation that existed before where it was possible to favor eastern provinces over western provinces without legal restrictions.
A second positive of the constitutional reforms, that is closely related to constitutional supremacy has been the introduction of the courts as the interpreter, protector, and the governmental body that determines what the law is and whether or not state actions or policies comply with the law (Iacobucci 2002, pg.31). The positive benefits of this reform are that it takes the politic branches out of monitoring the legality of their own acts and places that responsibility into the hands of a neutral, apolitical body that is well-versed and experienced in the law. Accordingly, courts can strike down invalid laws without fear of political reprisal or public influence but simply on an analysis of whether it complies with the letter of the law. For example, recently there have been calls on the Supreme Court rather than the political branches to resolve a number of controversial policy issues (Perrin, 2016; Economist, 2016)
Third, the constitutional reforms included the Charter of Rights and Freedoms. Similar to the U.S. Constitution’s Bill of Rights, the Charter of Rights and Freedoms explicitly establishes those right, privileges and guarantees that all Canadian citizens enjoy and that the state is prohibited from infringing upon arbitrarily, unreasonable, or without due process. The positive benefits of the Charter are that Canadian citizens no longer need to fear to live to the fullest extent of the law including how they participate in the political process, who they wish to support, and how they go about expressing their disapproval of the state (Schwartz, 2012). In addition, rather than the executive or legislative branches having a say in what is the proper or improper exercise of these rights, the reforms again place the courts as the final arbiter and protector of the rights of the people.
Lastly, after a long process, the constitutional reforms repatriated Canadian authority over its own Constitution (CBC, 2001). That is to say, that the constitutional reforms now allow Canadian to amend their constitution on their own without the need to first get approval from the British parliament. While the ability to actually amend the Constitution is far from a simple process; the process is nevertheless completed Canadian. The positive political benefits of this reform is that Canadian have given themselves the power to control their own political fates.
Conclusion
These reforms have not completely ended some of the tensions that continue to plague Canadian politics, especially in regards to the issue of French-Canadian and Quebec autonomy (Maton, 1996; Maton 1995). Despite these issues, the reforms, nevertheless have significantly increased the ability of Canadians to determine their futures on their own, to protect themselves from unreasonable state acts, and to increase the rule of law throughout the nation.
References
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Brook, S. (2015). Canadian Democracy, 8th ed. Canada: Oxford University Press.
Canadian Department of Justice (CDOJ). (2016). Constitutional Acts, 1867 to 1982. Retrieved from http://laws-lois.justice.gc.ca/eng/const/
Economist. (2016, Jul. 23). The great provincial obstacle course. Retrieved from http://www.economist.com/news/americas/21702495-country-far-being-single-market-may-be-about-change-great-provincial
Hogg, P.W. (1981). The theory and practice of constitutional reform. Retrieved from http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1847&context=scholarly_works
Iacobucci, F. (2002). The Supreme Court of Canada: Its history, powers and responsibilities. Retrieved from http://lawrepository.ualr.edu/cgi/viewcontent.cgi?article=1033&context=appellatepracticeprocess
Maton, W. F. (1996). Consensus report on the Constitution: Charlottetown. Retrieved from http://www.solon.org/Constitutions/Canada/English/Proposals/CharlottetownConsensus.html
Maton, W.F. (1995). 1987 Constitutional Accord. Retrieved from http://www.solon.org/Constitutions/Canada/English/Proposals/MeechLake.html
Lesson 12 (2016). Canada’s Constitution. Retrieved from student supplied notes.
Perrin, B. (2016, Jul. 22). Why Canada’s top court should weigh in on electoral reform. Retrieved from http://www.theglobeandmail.com/opinion/why-canadas-top-court-should-weigh-in-on-electoral-reform/article31065266/
Schwartz, D. (2012, Apr. 17). 6 big changes the Charter of Rights has brought. Retrieved from http://www.cbc.ca/news/canada/6-big-changes-the-charter-of-rights-has-brought-1.1244758
Supreme Court of Canada (SCC). (1988). Supreme court judgments: Reference re secession of Quebec. Retrieved from http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1643/index.do
