One of the important arguments in the negotiations leading to the Patriation Agreement/Constitution Act 1982 was we needed to be able to amend our Constitution. No more reference to Great Britain’s Parliament. We can set our own Constitutional course—to be a truly independent country severed from the ties of the old country.
This is one of the great achievements of the Constitution Act 1982.
But now that we can amend our Constitution, we have shown none of the leadership that was shown in 1981/82 to achieve further Constitutional Reform. Once we achieved it, after more than ten attempts over many decades, we have lost our desire to continue to build a great country but rather have been beset by small, narrow thinking, repudiating the goals and aspirations of the early reformers in Upper and Lower Canada, New Brunswick, Prince Edward Island, Nova Scotia and Newfoundland and Labrador in the mid nineteenth century.
The past over 40 years have been instructive in that regard.
Almost from the time the Constitution Act 1982 was passed we set on a tragic course;
First, there were many who questioned how this new Act came about. And for decades many constructed fantasies concerning all sort of scenarios. Books and columns by so called leading commentators were written on the matter propagating the myths. My book of 2012, ‘Some Day The Sun Will Shine And Have Not Will Be No More ‘ demonstrates the falsity of these claims. One can still see these falsehoods today in many of the accounts of the Patriation Process of 1981. Documents proving these falsehoods of process have been ignored. So our history is distorted and scarred as a result.
Second, lawyers and judges saw this new Act, especially the Charter provisions, as a golden opportunity to further their own concepts and ideas of Constitution making and interpretation. Hence, early on Courts veered from the words and original meaning and intent of the Charter to new vistas of Constitution making, ignoring the fact that an amending formula was now in place in this very Constitution Act in which the Charter resides to provide for a legitimate mechanism to change our Constitution, Part V, Section 38.
Courts were there (part of the three branches of democratic governance——Legislative, executive and the judiciary) to interpret the Constitution, not to make new laws. That is what the Amending Formula is all about and is the bed rock concept of a democracy —the elected representatives of the people are the only ones to have the power to change the Constitution. And hence in our Amending Formula seven Provincial Legislatures and the Parliament of Canada have to agree to general changes to our Constitution.
This has all come into clearer focus in the last four years as a result of Governments and Courts actions relating to their responses to the so called covid pandemic —violating the Charter —the Constitution Act 1982, ignoring the opening words of the Charter (Supremacy of God and the Rule of Law), violating the conditions of Section 1 and many other violations of additional Charter provisions like Sections 2, 6 and 7.
Bluntly put, provisions of the Charter were and are being ignored, intent and context and plain meaning were and are being discarded and a free for all is happening by Governments and Courts attempting to replace an existing Constitutional provision, the Amending Formula, with their own Constitution making.
Unless and until we respect our Constitution and faithfully follow its provisions as written and change it according to the rules provided, we will be governed less and less by the elected and more and more by the unelected.
The Honourable A. Brian Peckford P.C. is the last living First Minister who helped craft the Canadian Charter of Rights
Related Items:
Watch: Leaders on the Frontier with Brian Peckford here. (72 minutes) January 19, 2022
