As we mark Canada’s 150th and the 35th anniversary of the Constitution and the Charter, we should not let our legal history become politicized.
March 29 was the anniversary of one of the most significant events in Canadian legal history.
Few would even be aware of this, though, since it’s not an official holiday, no greeting cards are available and there was little public acknowledgement of the 150th anniversary of the passage by the British Parliament of what was then known as the British North America Act, 1867 (BNA Act). This law was later renamed the Constitution Act, 1867, and incorporated into our current Constitution.
By contrast, other current national celebrations are very prominent. This year, Canada Day even has its own hashtag on social media, #Canada150, to mark our sesquicentennial on July 1. In 2017 we also mark 35 years since the patriation of Canada’s primary constitutional document and the entrenchment of the Canadian Charter of Rights and Freedoms in 1982. Watch for the public acknowledgement of these historic events, which will likely be widespread, on April 17.
How does the passing of the BNA Act 150 years ago compare with these two other substantial milestones in our constitutional history?
Well, it established the legal framework for an entirely new country. True, it was far from perfect. But changes to include a Charter and to patriate the Constitution were only amendments to improve this original document. Without the BNA Act as a starting point the constitutional changes in 1982 would likely not have happened. Ultimately, this 150-year-old British statute laid the foundation of one of the oldest and most successful democracies in the world. That sounds like something that ought to be noted, doesn’t it?
The fact is, Canadians often don’t recall their own history very well. This seems to be especially true of legal constitutional history. I’ve been told by lawyers, for example, that much of Canada’s pre-Charter legal history, before 1982, is unknown to their colleagues, who see it as uninteresting and essentially irrelevant.
The perception that markers in Canada’s constitutional development do not matter not only is misguided but may lead us to misunderstand our own history. A case in point was last year’s celebration of the famous Judicial Committee of the Privy Council judgment in Edwards, better known as the Persons Case. The anniversary of the 1929 ruling in this important matter is observed in Canada as Persons Day on October 18.
However, many Canadians seem unaware of what the judgment actually meant. The most serious misperception I saw last fall on social media was that the decision gave women the right to vote, which is wrong. It actually recognized that women fit within the legal requirement that only “qualified persons” could be appointed to sit as senators in Canada’s upper chamber.
Yet, as I’ve argued before, what happened in history and how we (mis) remember it are often fundamental parts of both our history and our law.
If we don’t always get the precise meaning of things right in remembrance, we usually at least try. There’s even an official holiday called Statute of Westminster Day, on December 11. Consistent with the lack of attention paid to Canadian legal history, few today appreciate the fundamental impact of this 1931 British statute. At the time Prime Minister R.B. Bennett described its importance in the long evolution of Canada’s constitutional regime, saying, “The Statute of Westminster is the culmination of the long, long effort that has been made since we were a colony, to become the self-governing dominion that we now are.”
Among other things, this legislation effectively gave Canada its full autonomy to pass laws without review by British courts. It also provided for the elimination of legal appeals beyond Canada’s own Supreme Court. Most important, the independence conferred by this legislation put Canada on a path of constitutional dialogue and development that resulted in substantial reforms 50 years later and continues to this day.
As a holiday, Statute of Westminster Day has been noted in the past, as in a Globe and Mail commentary in 2006, “A Statute Worth 75 Cheers.” But like the passage of the BNA Act, the approval of the Statute of Westminster has been largely forgotten. The 85th anniversary of this significant constitutional event passed last December with little apparent enthusiasm or fanfare.
The failure to appreciate Canadian history and law might result from something more complicated than Canadians simply being “bad at history.” A recent blog post by the constitutional scholar Léonid Sirota suggests a different explanation for our habit of selective remembrance. In his view, the preferential celebration of only certain parts of our constitutional tradition has partisan overtones and a current political objective. Given the lack of attention to recent important dates in our constitutional history — some unheeded by today’s leaders, but others ignored by past governments of other political stripes —Sirota may have a point.
But I hope he is wrong. Ignoring uncomfortable or inconvenient parts of our past for present political purposes seems both petty and unbefitting a great country. All of us should take care not to let our history and law become so politicized that we forget to recognize important people, historical events and constitutional developments.
Even if sometimes we forget, or mis-recollect our history, we should keep trying to get it right.
In the end, like many others, I’m looking forward to the upcoming 35th and 150th celebrations of Canada’s legal history, throughout the rest of 2017. But I also hope everyone had a happy 150th British North America Act Day on March 29!
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