Federation v Unitary State: A federal state is one in which sub-sovereign entities typically called states, provinces or oblasts, have sovereign rights that are separate from those of the State. Examples are Australia, United States, Germany. Unitary states are those that have a single government and all other entities in the state are subservient to it. Examples are Great Britain and France.
Federal v Central Governments: A Federal Government is one in which the sub-sovereign entities within the state have some form of representation that give the region a voice in the decision making of the national government. United States has an electoral college system to add regional representation to the election of the president. It and Australia have an elected Senate with equal numbers of Senators from each state.
Canada does not have equal regional representation in its national government thereby acting like a Unitary State modified by overrepresentation in Quebec and Atlantic Canada. Therefore, the national government is referred to as a central government.
Constitution v Foundational Document: A constitution is a permanent basic law that establishes an organic state to which all people are subject. A Foundational Law is a basic law, approved by a referendum of the people and rewritten every 25 years. It constructs a mechanical form of governing which is subject to the ongoing will of the people. –
Britain’s non-codified constitution: The Westminster parliamentary system as practiced in Britain does not have a codified constitution rather the constitution of the state is defined by a series of Acts of the legislature and precedents that have come to be accepted as law. Before Trudeau’s constitution of 1982 Canada operated similarly with no codified constitution but a series of precedents and the British North American Act (1867) and the Westminster Act (1931) which were both Acts of the British Parliament.
Protection of rights by precedent: Rights in a true parliamentary democracy are defined by precedents set in law.
American Constitution rooted in Legalism and absolutism: Thinking in 1775 was described as Materialism. This thinking along with the philosophy that emanated from the Age of Enlightenment saw the world in concrete terms. Legalism replaced the divine right of King. Every person in the nation was to be subject to these laws including the King. In their thinking it was believed that this revolutionary thinking was absolute and that nothing could *be more correct.
Trudeau’s Constitution: The constitution Act of 1982 is referred to as Trudeau’s constitution because it was a product of his government and he had the final say (after the Premiers negotiated the “Notwithstanding Clause”) on the document. He is the sole founding father of the new Canada that the document created. It is not a document of the people because there was little public input and the public have never given it their informed consent.
Loss of rights with Trudeau’s constitution: The implementation of Trudeau’s constitution meant that the people of Canada lost certain rights that had previously been protected under the British system of precedents. The people have never given their informed consent to relinquish these rights. The rights that were lost included the right to own land, the right to self-govern and the right define their own rights.
Equality in Trudeau’s constitution: Equality of the citizens of the country is mentioned twice in Trudeau’s constitution: once to say that everyone has the right to be treated equally under the law, and once to say that all other rights are subject to the whims of the government that may decide that other people may deserve to have greater rights for any number of reasons.
Repatriation: misnomer or clever marketing: In Trudeau’s 1982 campaign on the constitution, he referred to it as “repatriating the constitution”. This was a clever manipulation because the public was never informed that Canada like Britain was governed under the Westminster Parliamentary system that does not have a codified constitution. There was no codified constitution to repatriate. The American Republican system on the other hand has a codified constitution which acts as the primary law of the land that all other laws are subject to. Trudeau enacted a fundamental change to our democracy from a true parliamentary system to a form of a republican system and did not inform the public about what he was doing or the implication. The implications have been profound.
Referendums on Constitutions: Numerous countries across the world require a referendum of the people to create or amend the constitution. These countries include Venezuela, Australia, Austria, Romania, Equator and Ireland to name a few. Canada did not have a referendum to approve Trudeau’s constitution of 1982 but did have a referendum on the proposed changes to the constitution as defined in the Charlottetown Accord. Approval was denied.
Judicial Supremacy: In a republican system the Judicial seats at the epitome of the democracy. It is charged with the interpretation of the constitution which is the highest law to which all citizens are subject. In the parliamentary system, the people are the highest arbiters of democracy and final say in the country. Countries such as Australia that has a constitution approved by a referendum of the people specifically addresses the supremacy of the people which maintains the integrity of its parliamentary system. In Canada, its constitution was not approved by the people and now has the Court acting as the highest authority in the land.
Judicial Advocacy: As the highest authority in the land the Court may chose to create laws. It can either direct the government to create legislation to its liking as the Court in Canada did in the case of assisted suicide or it may set precedents that effectively create a new law. This is done under the guise of an interpretation of the written word of the constitution or the assumed intention of the author which in Canada’s case is Trudeau. The people have no recourse to disagree.
Judicial Failures in the United States: Judicial advocacy displayed its most egregious effects in the 1894 case of Plessy v Ferguson when the Supreme Court of the United States upheld the Jim Crow legislations that had the effect of neutering the 13th and 14th amendments to the constitution and overturned the results of the American Civil War all of which were to emancipate African Americans. The decision plunged America into 80 years of racial segregation at which time the court reversed its decision due largely to Europeans mocking the hierocracy of Americans and particularly blacks Americans having fought for freedom in Europe but not having at home. Another historic failure of the Court was the Dread Scott decision that overturned the political compromise to avoid the Civil War. It had the effect of plunging the nation into the deadliest war to ever take place in North America. The Court also erred in the “First Salute the Flag” decision that unleashed havoc of vigilantism on the Jehovah Witnesses until the Court reversed its decision in the “Second Salute the Flag Decision”. These grievously flawed decisions defined the moral standards of the country. Reversing or challenging the decisions was impossible. The constitution is based on the belief in absolutism which was in vogue in the 1700’s. The Courts were considered absolutely infallible and beyond reproach, a belief that is inherent in its constitutional system. Eventually the electorate came to understand the imperative of appointing the Judges to the courts to get the judgements that they sought. The presidential elections have come to be substantially about the make-up of the Supreme Court.
Canada followed the 1700’s thinking of absolutism and judicial infallibility in Trudeau’s 1982 constitution. Appointments to the Supreme Court are at the unfettered prerogative of the Prime Minister. Court decisions have tended to side with the central government on cases that address its incursions into the sovereign rights of provinces in decisions such as that of the Carbon Tax case.
Judicial Adversarial system defining the nation: When the Supreme Court is the highest entity in a democracy it will inevitably define the moral standards of the nation. The Dread Scott, Plessy v Ferguson and “First Salute the Flag” cases clearly show how court decisions come to define the actions of society. However, the court process also tends to define how the people that are subject to it conduct themselves. The court system is adversarial. The proponents of each side put the best possible spin on their perspective and make every effort to diminish the argument and credibility of the other combatant. Compromise is irrelevant while extreme positioning is rewarded. The opponent is viewed only through the lens of finding ways to discredit it. Because all political processes are subject to the adjudication in the court’s adversarial process (such as the Dread Scott decision) it will inevitably come to reflect the adversarial nature of the top entity in the democracy, the courts.
Canada followed the United States into the maelstrom of Judicial supremacy and adversarial politics even in the face of clear evidence of its disastrous consequences of conflict (Civil War) and ruinous social standards (Racial segregation).
Rule of Law-meanings: In the Westminster Parliamentary system this phrase means that the courts uphold and interpret the laws set out by the people through their elected representatives. If the people do not like the interpretation or enforcement by the courts, they can change the law. The courts are not considered infallible and above redress. In the American Republican system this phase can mean both interpretation of laws set by legislators and the creation of laws. Rule of Law reflects the supreme position of the courts over the people and their elected representatives.
Canada transitioned from the Westminster interpretation to that of the United States with the application of Trudeau’s constitution on the country.
Charter of Rights and Responsibilities: Human sovereignty is recognized as the sole sovereignty in nature. The state, the government, businesses and all social constructs only have the rights assigned to them by the sovereign people. Along with the right of personal sovereignty are as series of responsibilities to other humans and to nature. These are the combined rights and responsibilities that are described in this Charter. It also defines the rights and responsibilities that the people ascribe to the various constructs (state, government, judiciary, businesses, unions and etc).
The Executive: In the United States the executive is a constitutionally mandated position that is elected with a degree of respect for regional input (being a federal state) through the electoral college system and is subject to checks and balances from the other elected positions and the judiciary. In Canada the executive is an assumption of ultimate power by the Prime Minister, the Prime Minister’s personal bureaucracy and perhaps a couple of preferred cabinet ministers. The position is not in the constitution and has no checks and balances other than the judiciary which is appointed by the Prime Minister.