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Has the process of constitutional reform had positive or negative effects on the Canadian political community?

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Topic: Has the process of constitutional reform had positive or negative effects on
the Canadian political community?

Canada is a complex country to govern. To simplify and make the process
democratic, the Constitution outlines the political principles, the structure of the
government, and the powers and responsibilities of the government and of the people. A
constitution is the fundamental law of a country. In other words, all other legislation must
respect and conform to it, thus it is an essential element of democratic politics. Canada’s
Constitution Act of 1867 is one of the oldest constitutions, however in 1982, our
Constitution was reformed. Several important changes had occurred. Includingthe
inclusion of the Charter of Rights and Freedoms in the Constitution, the change from
parliamentary supremacy to constitutional supremacy, and the political independence
from the United Kingdom. This paper will demonstrate the positive effects on the
Canadian political community.



Most rights and freedoms were protected in the Constitution Act of 1867 and
under common law principles.However, because the Constitution was based on principles
of parliamentary supremacy, which gave ultimate power to the Parliament: “Parliament
had the power to make, amend or revoke a law and judges were restricted primarily to
legal interpretation” (Kanji, 2012, S2-L13), they were subject to changes at the discretion
of theParliament. The enactment of the Charter of Rights and Freedoms resulted in the
entrenchment of many freedoms and rights, including political freedom, democratic
rights, mobility rights, legal rights, equality rights and language rights. As a result, people
are more likely “today than in pre-Charter era to reach for the judicial lever in attempting
to protect their rights” (Brooks, 2011, p. 137). Furthermore, rights and freedoms are more
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secure today, as the courts have shown to be willing to abolish laws that are found to be
unconstitutional. This fact is often taken for granted, as examples of violations of rights
and freedoms can be found in recent history. During World War II, Japanese Canadians
had their rights taken away. In the 1930ies, the Albertan government sterilized hundreds
of mentally ill individuals (Kanji, 2012, S12-L13).
Furthermore, the reformed Constitution was based on principals of constitutional
supremacy. Together these two changes effectively placed the rights and freedoms
beyond the control of the government. However, the rights and freedoms are not
absolutely guaranteed as Section 1 of the Charter places reasonable limits on such rights
as such that if the exercise of a right has the potential to harm individuals, the right will
be revoked. During the debate on constitutional reform, critics of the parliamentary
supremacy claimed that by placing policy decisions on unelected judges,we are
essentially “Americanizing” Canadian politics. They argued that the rights and freedoms
are better protected by the “elected legislature, accountable to the electorate for their
actions, than by unelected judges” (Brooks, 2011, p. 171) because they represent the
sentiment of citizens. However, rights and freedoms are absolutes. They either exist or
they don’t. Furthermore, from a philosophical point of view, rights and freedoms should
not depend on changes in popular opinion as otherwise no group of individuals would
ever be truly protected by the Charter. This leads to the conclusion that constitutional
supremacy is superior in a democratic political system. Constitutional supremacy cannot
be “easily tampered with using basic legislation” (Kanji, 2012, S17-L12). In fact, Section
52 of the Charter states “The Constitution of Canada is the supreme law of Canada, and
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any law that is inconsistent with the provisions of the Constitution to the extent of the
inconsistency, of no force of effect” (Constitution Act, 1982). This change dramatically
impacted Canadian politics as courts have become paramount in resolving political
conflicts. In fact, “during the first decade after the Charter’s passage, about 1,000 Charter
cases a year were decided by Canadian Courts” (Brooks, 2011, p. 165).
Included in the preceding number are a number of important ruling handed down
by the Supreme Court of Canada. Landmark decisions include the case of R. v.
Morgentaler, where it was ruled that the criminal legislation of abortion was
unconstitutional as it violated section 7 of the Charter (Centre of Constitutional Studies,
2012). Egan v. Canada, where it was ruled that discrimination based on sexual orientation
violates equality rights of Section 15 (Centre of Constitutional Studies, 2012). As
demonstrated, although rights and freedoms are not absolutely guaranteed because of
Section 1, the courts nevertheless protect them unless the government ‘s infringement is
“demonstrably justified in a free and democratic society” (Constitution Act, 1982). As a
result of the reform, individuals who believe their rights and freedoms have been violated
can turn to the courts to have a ruling. Not a long time ago, a ruling from the Supreme
Court has made headlines when it overturned the ban on a ceremonial dagger, the kirpan,
in schools as it infringed the freedom of religion. The individual in this case was told by
his school that wearing the ceremonial dagger was not allowed, even if it was a religious
tradition (Rush, 2012). This leads to the conclusion that the process is more democratic
than it was in the pre-Charter era, where courts did not rule on the constitutionality of a
law “unless the federal parliament had interfered in matters that were under provincial
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jurisdiction” (Kanji, 2012, S1-L13). Suffice it to say, the enactment of the Charter of
Rights and Freedoms had profound impact on our society.
Another important element of the 1982 reform relates to the amendment
procedures of the Constitution. In the pre-Charter era, any proposed changes to the
Constitution had to be sent to the “British Parliament for review, as the Constitution of
Canada was still a British law” (Kanji, 2012, S17-L12). In the 1982 reform, Canada was
given political independence from the United Kingdom, which meant that procedures had
to be developed for amending the Constitution Act. Similar to the way rights and
freedoms were entrenched in the Constitution, the rules concerning amendment
procedures were included so that they could not be changed easily by parliament.
Depending on the type of constitutional amendment proposed, several protocols exist.
The protocols are outlines in section 38 to 49 of the Constitutional Act. What they all
have in common is the democratic principal behind them. As such, an amendment will
have to be agreed upon before it’s enacted. This change, although minor compared to the
entrenchment of rights and freedoms, had a positive impact on the Canadian political
community. A recent poll published on the Globe and Mail indicates that almost 30 years
after the Constitution Act of 1982 people are ready to modify the Constitution: “61 per
cent said they’re prepared to re-open the Constitution to reform or abolish the appointed
Senate. And 58 per cent said they’re willing to offer constitutional amendments in a bid to
finally secure Quebec’s signature on the Constitution. Fifty-eight per cent also said they’re
willing to open up the Constitution to change the country’s electoral system” (Bryden,
2012). The preceding poll numbers illustrate that even if the public opinion is behind
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such amendments, unless the criteria outlines in the procedures are met, such amendment
will not be enacted, as the Constitution is the fundamental law.
To conclude, the Constitution Act of 1982 had a profound impact on our society.
The Constitution plays an important role in uniting the nation. By making English and
French both official languages in Canada and by subjecting every citizen to the same
laws, it creates a national identity. The entrenchment of rights and freedoms and the
change from parliamentary supremacy to constitutional supremacy are important
elements as our rights and freedoms are out of touch from the government, for the most
part. Furthermore, residents who believe their rights have been violated have recourses.
In addition, the Constitution Act has given Canada political independence from the
United Kingdom. All these factors together have had a positive impact on Canadian
political culture as it made Canada a more democratic country.
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Works Cited
Brooks, S. (2011). Canadian Democracy. Don Mills, Ontario: Oxford University Press.
Bryden, J. (2012, 08 24). Most Canadians now willing to reopen Constitution, poll
finds. Retrieved 10 29, 2012, from Globe and Mail:
http://m.theglobeandmail.com/news/politics/most-canadians-now-willing-toreopen-constitution-poll-finds/article581354/?service=mobile
Centre of Constitutional Studies. (2012). Egan v. Canada (1995) – Equality Rights and
Same-Sex Spousal Benefits. Retrieved 10 29, 2012, from Centre of Constitutional
Studies: http://www.law.ualberta.ca/centres/ccs/rulings/Egan_v_Canada1995.php
Centre of Constitutional Studies. (2012). R. v. Morgentaler. Retrieved 10 29, 2012,
from Centre of Constitutional Studies:
http://www.law.ualberta.ca/centres/ccs/rulings/rvmorgentaler.php
Kanji, M. (2012). Lesson 12: The Canadian Constitution. Retrieved 10 29, 2012, from
Introduction to Canadian Politics:
https://www.econcordia.com/courses/canadian_politics/lesson12/
Kanji, M. (2012). Lesson 13: The Charter of Rights and Freedoms. Retrieved 10 29,
2012, from Introduction to Canadian Politics:
https://www.econcordia.com/courses/canadian_politics/lesson13/
Rush, C. (2012, 05 16). Kirpan, Sikh ceremonial dagger, now allowed in Toronto
courthouses. Retrieved 10 29, 2012, from The Star:
http://www.thestar.com/news/gta/crime/article/1179515–kirpan-sikhceremonial-dagger-now-allowed-in-toronto-courthouses

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