Constitutional Reform: Is Canada’s constitution outdated?

Amendments to the constitution are not easy. In fact, procedure for amendments to the constitution vary depend on the nature of the change and the matter in question. Procedures are lengthy and complicated, and the threshold for assent is generally fairly high (majority assent is required). For some, the complexity and detailed requirements for constitutional amendment is a comfort – as it acts to safeguard important pieces of the constitution, namely, the Charter of Rights and Freedoms.

The Globe and Mail reports here that there are renewed and active discussions about constitutional amendment. The article highlights the different attempts over the last decade to make important changes in law and policy, but which have been constrained by the constitution.

Alan Hutchinson, professor at Osgoode Hall Law School has provided an interesting analysis in the Globe and Mail opinion piece he recently wrote, and challenges the notion that the constitution restrains government and political actors from making changes, or achieving their purpose.  According to  Hutchinson, despite all the requirements to make formal changes to the constitution:

“For the most part, change has continued apace while the texts of the Constitution have remained unaltered. The various actors – politicians, government leaders, bureaucrats, judges, and citizens – have gone about their business and been relatively unimpeded by the actual words of the Constitution…The fact is that where there is a political will (i.e., federal and provincial governments agree), there is usually a constitutional way. So, although the courts have interpreted the Constitution to prohibit the formal swapping of powers between federal and provincial governments, ingenious political devices have been used to achieve the same goals.”

Hutchinson also brings attention to the fact that Canada’s constitution is not entirely written down. The “unwritten principles” which are to inform the political system and judiciary are able to evolve. The practicality of this is not only desirable, it is undeniable and more effective.

 

For Professor Alan Hutchinson’s full article, click here.

For Norman Spector’s Globe and Mail article, “Demands for constitutional reform only builds”, click here.

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2 Responses

  1. We have an event that focuses on the question of “Is the Constitution Outdated?”, will be attended by 3000 in Houston, TX featuring several keynote speakers. Please see http://councilfordebate.blogspot.com for more information. Keep up the great work!

  2. avatar Amendment Needed says:

    Affirmative action programs

    (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.(84)

    Inherently contradictory to 15.1.

    Needs to be removed immediately.

    Multicultural heritage

    27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

    Needs to be removed. Culture is like an ever evolving organism and should not be artificially encapsulated by this multi-culturalism business. How can culture be preserved and enhanced at the same time? Seems contradictory as well.

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