The Decline of Common Law Constitutionalism in Canada
An article by Bradley C. S. Watson, published in the current edition of Modern Age, and online at ISI’s First Principles web journal:
Canada provides a case study in the precipitous decline and fall of common law constitutionalism in the face of modern, and especially postmodern, political thought and practice. In 1982, the Canadian Charter of Rights and Freedoms (or “the Charter,” as it is commonly called) was introduced. It provided the means whereby what might loosely be termed an “American-style” rights-oriented jurisprudence could play a major role in Canadian courts.
For its first 115 years as a unified nation, Canada had followed English common law doctrines, including, critically, the notion of parliamentary supremacy. Unlike England, Canada from the beginning had a federal system that raised questions of separation of powers between the national and provincial governments. As in the case of U.S. states, Canadian provinces retained sovereignty in certain areas. In Canada, to the extent courts held forth on constitutional matters, it was most often on questions limited to the relationship between the national and provincial governments.
Under the new jurisprudence, Canadian courts, unlike the English courts on which they were are modeled, no longer confine themselves to a relatively limited range of disputes, or to the careful application of existing legislation. Rather, they act as all-purpose social engineers, often declaring unconstitutional, for all times and purposes, legislation duly passed by Parliament or the provincial legislatures—and occasionally, in effect, re-writing that legislation. Such a jurisprudence, prior to 1982, simply did not exist in Canada . . .