O patria: the patriation struggles.

• Author: Normey, Rob
• Position: Feature: Constitutions

Should a government fail to respect natural rights, wrote Locke and Rousseau, then disobedience and rebellion were justified. Thus was born the modern notion of human rights. So responsive was this notion that the greatest social revolutions in the history of the western world took place--one in America and the other in France--in order to preserve for individuals the rights which they claimed belonged to them.

--Pierre Elliot Trudeau, Minister of Justice, from A Canadian Charter of Human Rights, Canadian Government, 1968

Introduction

On April 17, 1982, Canada reached a milestone, the most significant in our constitutional and legal history since Confederation itself. The date marked the coming into force of a hard-won agreement between the federal government and all provinces save Quebec. This high degree of consensus was a truly remarkable achievement which enabled our long-suffering nation (on the constitutional front) to at long last patriate our Constitution and, at the same time, enshrine protection of fundamental rights and freedoms. Canada has given the world a new word--patriation --to describe the process of reaching an agreement between governments on how to assert control over our own constitution and finally end the pivotal role played by the British Parliament.

Political and legal drama of a kind rarely experienced in Canadian history, beginning in 1980, led to the breakthrough agreement in November of 1981, composed primarily of the following elements:

* a Charter of Rights and Freedoms;

* protection of Aboriginal and treaty rights;

* protection of language rights;

* a formula for amending the Constitution in the future; and

* protection of provincial natural resources.

As a lawyer who has practiced for many years and is a student of our history, I can say without hesitation that the creation of the Constitution Act, 1982 marked genuine progress in our legal and political systems and can be compared with any of the other major developments in the postwar era. As a young barrister appearing before our courts before the Charter of Rights came into force, I can attest to the numerous ways that the introduction of protection of basic rights for citizens has improved our system of justice. In the field of criminal law, for instance, rights such as the right to counsel or to proper advance disclosure of the Crown's case against an accused now receive protection, leading to fairer trials and more just results. The number of wrongful convictions has surely been reduced since the introduction of the Charter.

Currently I review and analyze proposed and existing laws and regulations in relation to the Charter and to s.35, the aboriginal and treaty rights clause and can readily perceive the ways in which our new Constitution encourages governments and officials to legislate and to act in ways that are fairer and less likely to discriminate. So, in this article I wish to salute the creation of the Constitution Act, 1982 as part of the celebrations marking the 30th anniversary of its existence. I was proud and excited to attend a celebration at the University of Alberta in which participants in some of the first Charter cases from Alberta to appear before the Supreme Court of Canada relived the heady days of early litigation in the new era. Charter and Aboriginal litigation then, as now, allows Canadians to observe the interplay of competing rights and interests as we seek to realize our fundamental values in real-life contexts. The Charter dialogue spoken about in law review articles is not limited to a dialogue between the courts and the legislatures, but exists in similar and distinct ways between lawyers and judges and between citizens as well as organizations.

I also attended a remarkable...