What does a failed English peace treaty from the year 1215 have to do with Canada’s Constitution? The two seem about as related as oil and water. Translating “Magna Carta” gives a helpful hint, as in English it means “the Great Charter”. In fact, the Magna Carta is credited with being the earliest form of a constitution. The Magna Carta was used as a guide for the United States Bill of Rights, which forms part of their constitution [1]. As well, Canada’s Constitution, first drafted in 1867 by the UK, has its roots in the Magna Carta [2]. The Canadian Charter of Rights and Freedoms, which became a component of our Constitution in 1982, is also drawn up in the spirit of the Magna Carta.
In order to more fully understand the relationship between the Magna Carta and Canada’s Constitution, we will provide an introduction to constitutional law over the next two days. A constitution governs the way the state is organized, the state’s relationship with its citizens, and the way that law is created and altered. Matters will be litigated if any legislation is challenged as being inconsistent with the constitution.
For example, you probably remember that in December of 2013 the laws prohibiting living off the avails of prostitution, communicating for the purposes of prostitution, and operating a common bawdy-house as it relates to prostitution were struck down. This is because the Supreme Court of Canada held that they infringed on rights guaranteed by the Canadian Charter of Rights and Freedoms. Any law that is inconsistent with the provisions of the Constitution is of no force or effect [3].
Because of constitutionalism, the Supreme Court can also prevent government action which is not in accordance with our nation’s laws. A recent and newsworthy event occurred last year when the Supreme Court was asked to interpret several provisions of the Supreme Court Act and determine whether Prime Minister Harper’s newest judicial appointment was in accordance with those provisions. The Supreme Court ruled that the appointment was not consistent with the eligibility requirements set out in the statute, and the appointment was therefore nullified.
As you can see, constitutional law stands above the powers of the state, guarantees that our laws are in accordance with the rule of law, and protects our basic rights and freedoms. Although these things seem overwhelmingly positive, we will discuss the critiques of constitutionalism in tomorrow’s post.
[2] Nathan Tidridge, Canada’s Constitutional Monarchy: An Introduction to Our Form of Government, (Toronto: Dundurn Group, 2011) at 54.
[3] The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 s 52.
