Comparative Insights into Constitutional History: Canada, the Critical Years

Abstract

When Her Majesty Queen Elizabeth II presented the Canada Act1 to the people of Canada, they alternately hailed the process as the patriation of the existing British North America Act (hereinafter Act) and the formation of a new Canadian Constitution. Actually it is both, because the Canada Act significantly modifies the BNA Act and very nearly establishes an entirely new constitutional order. The Canada Act will not slow the debate on the efficacy or efficiency of Canadian federalism, nor will concerns for protecting the language and cultural heritage of Quebec be diminished in the minds of the Parti Quebecois. The promulgation of the Canada Act, however, with its entrenched Charter of Rights and language guarantee, will significantly alter the terms of the debate about Canadian federalism and its French connection. Now the debate will take place under the aegis of a document which Canadians hope will be a real national constitution, that is, a constitution that embodies the legitimizing First Principle of national sovereignty. Canadians have had something they call a national constitution since the enactment of the BNA Act by the British Parliament in 1867. By American standards, however, the BNA Act was less than a constitution, because it was not a fundamental charter containing specific provisions that effectively defined the limits of the courts and legislatures with respect to human rights, nor did it embody the essence of national ideals and sovereignty. But to assume that Canada has not had a constitution for the past 115 years misunderstands the Canadian perception of constitutional process, for Canadians place great stock in British notions of constitutionalism.