A blupete Essay

Constitution Act, 1982, Part 10 to blupete's Essay
"The Canadian Constitution, A History Lesson"

The effect of the Constitution Act, brought into being by the Queen's signature that rainy day, at Ottawa, back in April, 1982, so we were told, was to give Canada, finally, her own constitution: Canada had come of age. Well, Canada had a constitution since before 1867; and, this 1982 legislation, did, not, change this fact. What the prime minister of the day achieved, Prime Minister Trudeau, was to feed a movement in Quebec, a movement which had disclosed itself in the late 1960s, a movement for complete political independence from the rest of Canada. In the face of this movement, the federal government and all the other provinces went ahead with the Constitution Act of 1982, in spite of the fact that Quebec had refused to sign the agreement which had formed the basis of this 1982 legislation. In any event, the Constitution Act preserved the B.N.A. Act, but did cut away the colonial appendage of the requirement to go back to mother parliament, the British parliament, for future "constitutional" changes; it also put in writing (as if they did not, prior to that point, exist) certain fundamental rights and annexed it as the Charter of Rights & Freedoms.

The Charter was a political show, and a bad one at that; it backfired. It was thought at the time that such a listing of "rights" would impress people and bring them together with other parts of the country. It was especially aimed at those in Quebec; but Quebec, as represented by their provincial government leaders of the time, didn't want it (for whatever reason). Stupidly, the Prime Minister and the Premiers of that time, refused to wait for an unanimous agreement (necessary in any real partnership, no matter the rules) and pushed The Charter through, without Quebec's agreement. Quebec, with good reason, has been mad ever since.10

We had rights and a constitution before 1982, and the governments back then gave us nothing we did not already have. In any event, "constitutional rights," as some people call them, cannot be created by a country's constitution. The reason for this and the reason for the irrefragable nature of such rights, is that basic human rights existed way before any one dreamt up the idea of writing up a constitution. For a government -- the idea of the divine right of kings having gone by the boards -- to claim legitimacy, what was needed, was a basic set of principles to which all (not just the majority) would subscribe, assuming fully they knew what was at stake. It's a fiction, really, but one that has and will work, provided the constitutional rules are simple, such that they might be understood by all, the educated and the not so educated. A country's constitution is that which the governing part of society tells the rest of us what we cannot do (restrictive, negative, such as is the nature of criminal law). So, therefore, "rights" can never be given by a country's constitution, all a constitution can only ever do, is to spell out when an individual person (an identifiable person at the time of the offense and not individuals within a group identifiable by some trait) will loose, by the the criminal law process, one or more of his or her innate rights (to life, to liberty and to property).11


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Peter Landry

2011 (2019)