As a result of the current pandemic health measures, many Canadians are focused on keeping jobs and homes. Appreciative of every dollar the Prime Minister has announced at his daily morning press conferences over the last few months, some have expressed annoyance with me for not being as supportive of Canada’s current government as they think we all should be in this time of emergency. Pointed out to me have been multiple social media posts on an unfolding potentially scandalous situation and the revisiting of a confirmed scandal they consider is behind us. It’s been suggested both fit in the category of lesson learned, move on.
So, why am I agitated about these two of the Trudeau Government’s scandals in particular?
First, the SNC-Lavalin scandal in which the Ethics Commissioner announced on August 14, 2019 his finding that the Prime Minister attempted to influence the decision of the Attorney-General in a criminal prosecution. (Will the RCMP report on the investigation they announced on August 15, 2019 was taking place?)
Second, the decision to award WE Charity a contract to distribute nearly a billion dollars to student volunteers while accepting a paltry twenty million or so for their efforts. Although touted by the Prime Minister to be the only organization in the country that could accomplish the feat, under public scrutiny WE has withdrawn and a selection of Canada’s 300,000 civil servants will complete the task. Despite the withdrawal, this potential scandal is still to be investigated by the Ethics Commissioner, the Procurement Ombudsman, and the Auditor-General (as able since the Liberal Government cut funding for this office). The Finance Committee will also gum away at it, even absent the teeth and bite of a sitting Parliament.
The answer to the question is simple. Parliament matters.
Parliament matters, and I hope more Canadians will be concerned about what is taking place in our Parliament, particularly current events in Canada’s 43rd Parliament. It’s not hyperbole to suggest the future of our nation as we know it may depend on citizens’ attention.
The importance of Parliament was reinforced for me this week both by the actions that influenced the WE Charity’s withdrawal from the Canada Student Service Grant program and by the timing of reading Ryan Alford’s new book Seven Absolute Rights: Recovering the Historical Foundations of Canada’s Rule of Law. Alford explores a concept that has been important to my own thinking, and is incorporated in my writing. Canada’s constitutional history begins before 1867. The historic elements that pre-date Confederation remain relevant to our nation’s governance today.
When I started law school at the University of British Columbia in September 1981, mandatory in first year was eight months of constitutional law – three two hour classes per week with plenty of required reading in between. Constitutional scholar and then dean of the school Ken Lysyk (later Justice Lysyk) dedicated September to the premise of Alford’s new book, addressing the question, “What does the preamble to the British North America Act mean for constitutional law today (1981)?” The first paragraph of the 1867 preamble states:
Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom
What did, and does, it mean to have “a Constitution similar in Principle to that of the United Kingdom”?
Four decades later, Alford addresses that question and also touches on our understanding of a key aspect in the preamble to the Constitution Act, 1982. The 1982 introductory constitutional remarks read:
Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law
What does it mean to be a nation “founded upon principles that recognize… the rule of law”?
Although distant chronologically, these two preambles are directly related to one another. Alford ties the two together in a way that they were not when I attended law school; and, are not today in Canadian law schools, except perhaps the one at which Alford is a professor. In his text, Alford explains why these two are not explored together in the contemporary law school, and how the Canadian perception of the rule of law came to mean something different for most lawyers and judges in 2020 than it did in 1867 or 1982.
In my first book, Under Siege: Religious Freedom and the Church in Canada (1867–2017), I recount my experience of what, at the time, seemed more celebration than law-and-nation-shifting experience.
The day after writing the final exam of my first year of law school was April 17, 1982. That morning, I got on my bicycle and rode a fair distance to my friend Mitch’s house. He was one of the few people I knew who owned a colour television—a twenty-six-inch screen at that! It was a beautiful, sunny day in Vancouver—and pouring rain in Ottawa. Mitch had invited a bunch of fellow law students to his place for an unusual kind of party, one that has not been repeated in my lifetime. We watched the live broadcast as Prime Minister Pierre Elliott Trudeau and Queen Elizabeth II, on the front steps of Parliament Hill, signed the official documentation to transition Canada’s constitution from an act of the British Parliament (the British North America Act, now referred to as the Constitution Act, 1867) to the Canadian-held and Canadian-amendable Constitution Act, 1982. While often referred to as the repatriation of our constitution, it was actually the patriation of our constitution, as this was the occasion when it became the property of Canada and Canadians for the first time.
I left law school after first year, not expecting to return. Four years later, the Christian ministry to which I had dedicated my service sent me back to finish the law degree that had been started before the Canadian Charter of Rights and Freedoms existed. The Charter is Part I of the Constitution Act, 1982, a relatively new document in historic constitutional understanding. Required to take an upper year course in the Charter as a precondition for graduation, I took Lynn Smith’s ConLaw II – The Charter. Smith, later Justice Smith, was one of Canada’s first Charter law specialists in the area of equality rights and also served as dean of the U.B.C. law school. In 1986, we literally studied the development of Charter jurisprudence as the initial decisions were being made by Canadian courts. If you read those early decisions, you will find yourself reading history as well as the history then in the making.
In the intervening years, two things have changed dramatically about the teaching of constitutional law. First, there is no longer time spent on the historic reasons for the preamble to the Constitution Act, 1867. Second, mandatory ConLaw is focused on getting to the Charter, drastically reducing overall consideration of the Constitution Act, 1867 which was central to societal understanding of parliamentary governance for 115 years before the Charter drew our eyes away to a focus on individual rights and freedoms. On a positive note, most law schools now include an introductory course on Indigenous legal traditions and treaty rights, another important aspect of law that preceded Confederation; one that received little consideration when I was in law school. This new requirement is the result of aboriginal and treaty rights being recognized in Part II of the Constitution Act, 1982. But, I digress.
In Seven Absolute Rights, Alford writes about that which has largely been lost to Canadian legal education and practice. What was at one time assumed vital for Canadian legal educators has been removed from the curriculum. The book describes the essential historic events leading to establishing the seven rights, how they came to be recognized by British Parliaments over the course of centuries, and how that recognition extended to entrenchment in the unwritten Constitution of the United Kingdom referenced in Canada’s Constitution Act, 1867. He closes by outlining an intriguing law professors’ conspiracy that resulted in altering the way law is taught in Canada, one that involved then professor Bora Laskin, who was later a Chief Justice of the Supreme Court of Canada and after whom the law school at which Alford teaches is named.
Tomorrow, more on how the change in Canadian legal education contributed to today’s predicament, a list of the seven rights with brief comments on their historic relevance to the current parliamentary dilemma, and thoughts on how to get out of it.