Is the Constitution of Canada Constitutional?
I agree, the question is strange. I can hear you laughing: “I wonder if the water has dried up! ⁇
But in our Dominion, it arises seriously. At least according to constitutional law professor Daniel Turp and historian Frederick Bastian.
They filed a petition with attorney Franకోois Bouillon in the High Court yesterday seeking to have the 1982 constitutional law declared “null, void and invalid”.
It will soon be 40 years (April 17, 1982)In Ottawa, Elizabeth II, Pierre Elliott Trudeau and Jean-Christian sign the proclamation of the new constitution.
This concludes the so-called “repatriation” episode. The Canadian Law Act remains a document emerging from the Parliament of Westminster.
It is no more or less than Canada’s rebound. The Prime Minister of Quebec at the time, Renనే Lewesk, condemned the legal “coup”.
Subsequently, the Mulrones, the Baurassas, and so on. They tried to fix what they called the “Coop de Force” (with “non-functioning contracts” of Meech and Charlottetown).
In 1982, when the Constitution was deported, an “Amendment Principle” was added to it, as there were no rules to change the “Constitution”. In addition, a charter of rights was introduced. It revolutionized Canadian law.
Problem: All this happened without the consent of Quebec (political). Hence the phrase “Quebec did not sign the constitution”. Every year, the National Assembly is reminded that there is a problem with a resolution supported by all parties. In his book I believe so (Quebec / USA, 2018), current CAQ Justice Minister Simon Jolin-Barrett speaks of “betrayal”.
Legally, however, the repatriated constitution applies to Quebec.
Ten days before the April 17, 1982 declaration, the Quebec government argued in court that deportation was illegal; Quebec has a “veto right”. The judges refused.
Forty years later, Bastian, Turp and Booleanne resumed fighting.
In their extensive request, they stated that they had new arguments. Taking advantage of Bastian’s discoveries in the British Archives (recorded in the book) The Battle of London), They claimed that the principle of independence of the judiciary had been violated, and that the judges had even held talks with members of the government considering deportation.
Other Arguments: Prior to 1982, all changes to the Dominion Constitution were made by prior agreement of all provinces; Sending home violates the rule that Quebec’s special powers over “property and civil law” cannot be changed; Going home violates the self-determination of the Quebec people.
Enlightenment, the gesture is no less quixotic, because it is doomed to failure. Despite the strength of the legal arguments, does the court really dare to declare that “the Constitution is unconstitutional”?
The legal vacuum created would be worse and the constitutional debate, which has been practically abolished since 1995, could be resumed. In the end, the judges may even fear that their judgment will be legalized in 1982.
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