Canada is in dire need of a constitutional convention. Looking southward, so does the United States. In the U.S. and in Canada, the living find themselves shackled to a past that bears little resemblance to the present. So much so, it now appears that many of the fundamental guiding principles informing the respective constitutional documents are seriously out of date such that the interpretation and application of these principles by the highest Courts of the land are leading to bizarre decisions that preserve and promote the capacity of a small elite to thwart democratic rule.
The Supreme Court of Canada in respecting the constitutional division of powers between the judiciary and the executive branch of government rendered a decision in the Omar Khadr case in which a violation of the most central element in our Charter of Rights and Freedoms, the right to life, liberty and security of the person as articulated in Section 7 of the Charter is trumped by the feudal right of the Prime Minister’s royal prerogative over foreign affairs, which includes his right to unilaterally declare war.
In other words, although Mr. Khadr’s legal rights have been clearly violated, the Prime Minister is not under legal obligation to provide an effective remedy like repatriation to address this flagrant violation of a Canadian citizen’s rights in which the Canadian Government actively participated. In this instance, there is a fundamental flaw at the heart of our constitutional law.
What makes this result even less palatable is the fact that the Prime Minister has utilized another of his royal prerogatives to prorogue Parliament, effectively suspending democratic debate concerning this repugnant turn of events. As a result, democratic dissent cannot be presently expressed in the institution to which the Prime Minister is accountable. Consequently, Canadians through their elected representatives are unable to demand that the Prime Minister justify his refusal to intercede on behalf of one of their fellow citizens.
With a similar disregard for the principles and modern practice of democracy, the US Supreme Court interpreted the Bill of Rights’ first amendment stipulation that Congress shall make no law abridging the freedom of speech to include the right of corporations to spend without limits during electoral campaigns. Given the financial capacity of the corporate sector to influence electoral results, the Court effectively put into place a path in which democratic rule gives way to corporate rule in the United States.
In summary, the Court empowers the corporate sector by use a conception of freedom from an 18th century text to escape from the control of the people and their democratic institutions that grant corporate charters. In exercising this right to freedom of speech, which is fortunately constrained in Canada, corporations, including those offshore, will gain final parasitic control over the American system of governance.
Faced with the reality of having their basic democratic rights superseded as a result of the application of feudal practices, it is time for Canadians to exercise their right to be governed by laws that reflect the reality of their generation and not to be enslaved by the deference to the reality of an out-dated past. We are no longer a British Colony. The ratification of our Charter of Rights and Freedoms brought about our legal independence. We are free from British rule.
To become a modern democracy, we need a modern constitution, one that recognizes basic democratic principles and puts them into practice in the manner that our elected assemblies function. It is time to convene a constitutional convention in order to rewrite that part of our constitution that is derived from the British North America Act.
As a people, we owe it to ourselves and to future generations to create a system of governance suited to the reality in which we live and to which we give our consent until that time arrives when a rewritten constitution will be again subject to further major change as the society evolves. In this way, Canada’s Constitution will become a living document that reflects the desires of Canadians to live collectively guided by their shared values.
In convening a constitutional convention, Canadians should follow the example of the Scots who, in their desire to be ruled by Scottish law rather than English law, initiated a claim of right, which eventually led to the devolution power from Westminster and the creation of the Scottish Parliament.