Free of the colonial yoke? Not quite!

Author:Edmond, John

This is true of what has been for 35 years the most significant part of the Constitution of Canada, the Constitution Act, 1982, Parts I and II of which are, respectively, the Canadian Charter of Rights and Freedoms and Rights of the Aboriginal Peoples of Canada. Between them they have been responsible for many, if not most, of the significant decisions of the Supreme Court of Canada since their proclamation. Yet, the Constitution Act, 1982 owes its very existence to an Act of the British Parliament, namely the Canada Act 1982, numbered as Chapter 11 of the 1982 United Kingdom statutes of the U.K. Parliament. This was the U.K. statute central to patriation, that is to say the process that finally made it possible for our Constitution to be amended by Canadians, without reference to the parliamentary mother. The Constitution Act, 1982 is humiliatingly appended to this statute as, not merely the schedule, but "Schedule B." We are constantly reminded of this ignoble fact by lawyers and judges who think it necessary to cite the Charter, for example, as follows: "Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11." As if "Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982" would leave the reader pondering: "Constitution Act, 1982? Oh, I bet that's the Constitution Act, 1982 that's Schedule B to the Canada Act 1982, which, as I recall, is Chapter 11 of the 1982 statutes of the United Kingdom."

The Canada Act 1982 is a four-section, single page, English-only statute that enacts the Constitution Act, 1982 and abjures further United Kingdom jurisdiction over Canada. Since U.K. statutes may be in English only, the French version of the Act is appended as Schedule A, leaving the central document, the Constitution Act, 1982 itself, to occupy the "B" position.

From its birth in 1867 by Act of the Parliament of the United Kingdom--British North America Act, 1867 (now the Constitution Act, 1867)--Canada was constitutionally a creature of the U.K. Although, by the 1931 Statute of Westminster, the autonomy of Canada and the other self-governing Dominions was recognized, the authority to amend the BNA Act, 1867 remained in London. "Self-governing" it may have been, yet for Canada to effect an amendment to its Constitution, a request had to be directed to Britain.

Not including the 1867 Act, no fewer than 14 British North America Acts, as well as...

To continue reading