Embrace your Constitution

ADAM DODEK

Growing up in Vancouver, I didn’t give much thought to the Constitution. Looking back, this seems strange because, from a very young age, I was keenly interested in Canadian politics and in law.

Thanks to my Grade 2 teacher at Talmud Torah, I knew the names of all the premiers of the provinces at age 8 (we had a weekly current events quiz game). In drama class at Eric Hamber, I was performing scenes from the play Inherit the Wind (on the Scopes Monkey trial) with my good friend Kevin Cohen. I remember learning about the passage of the Young Offenders Act in 1984 in guidance class where, I think, the point was to tell us we could now be arrested if we broke the law – an important lesson for all high school students. I even played the board game Poleconomy, where the goal was to become prime minister so one could effect the regulation of the economy.

Yes, I was a nerd but I was not yet a constitutional nerd. That would come years later. Growing up in Vancouver in the 1970s and ’80s, I didn’t learn much about the Canadian Constitution. I suspect that my experience was not unrepresentative of kids of my generation and of subsequent generations.

I’m trying to break this trend with my book The Canadian Constitution (Dundurn, 2013). The Constitution belongs to all of us. It is the story of all of us as Canadians. It connects us to our past and to our future. However, I fear that most Canadians don’t even know where to find a copy of it, let alone know what’s in it.

Many people have the impression that the Constitution is technical, dull and boring. They think it is something for lawyers, politicians and judges, not for them. They are wrong.

The Constitution contains the rights and freedoms that we enjoy as Canadians. It also sets out the structure of government that all too often seems to not be working that well. But, for all the faults of our system of government, it actually does work quite well. Just look around the world and you can see that. Winston Churchill said that democracy is the worst form of government ever invented ... except for all others.

The Canadian Constitution and our constitutional structure are the envy of people around the world. Canadians have been involved as advisors in constitution-making in places such as South Africa, Sri Lanka, New Zealand, Ethiopia and Israel. The Canadian Constitution is so hip that it was mentioned in a New York Times article on the decline of the international influence of the U.S. Supreme Court. One of the American Supreme Court justices explained that the Canadian Constitution (and the South African) was simply more popular and more relevant than the American Constitution to judges and lawyers in most countries. So, we have been doing something right in this country. Most Canadians simply take this for granted.

In my new book, I set out to bring the Canadian Constitution alive for all Canadians. I tell the stories of some of the leading constitutional cases, a good number of which come from British Columbia.

One of the most important aboriginal rights cases was R. v. Sparrow (1990). Ronald Sparrow was a member of the Musqueam band in British Columbia who was caught fishing with a longer net than was allowed by his fishing licence under federal law. Sparrow claimed that he had a right as an aboriginal to fish under the Constitution. The Supreme Court agreed. In this landmark decision, the Supreme Court held that section 35(1) of the Constitution Act, 1982, protects aboriginal rights that were in existence in 1982, and they cannot be infringed without justification because of the government’s special fiduciary duty to aboriginal peoples. After the decision, Sparrow continued to fish commercially, supplying community members and elders with salmon. He is considered one of the most knowledgeable fishermen on the West Coast and an expert on migration patterns and cycles of herring and species of salmon.

In The Canadian Constitution, I explain how the Supreme Court works because the Constitution does not shed any light on this. I also reveal some of the interesting history of the high court and its judges.

For example, Bora Laskin was the first Jewish judge appointed to the Supreme Court, in 1970. (Today, four of the nine judges on the Supreme Court are Jewish.) His career is a reminder of the antisemitism of another age. Laskin was a top student at the University of Toronto, Osgoode Hall Law School and Harvard Law School. However, when he returned from Harvard to Toronto in 1937, no law firm would hire him. The only legal job that Laskin could find was writing summaries for a law journal. Laskin joined the faculty of law at the University of Toronto and had a stellar academic career for two and a half decades. He wrote the first casebook on Canadian constitutional law, which was used for decades (although one of the major law firms in Toronto refused to have it in their law library because of the antisemitic protestations of one of their partners).

Laskin is revered as a jurist, but the law was not what he appeared destined for growing up in what is now Thunder Bay, Ont. As a boy, Laskin was a superb baseball player: his nickname was “Home Run Laskin.” He was so good that, one day, a major league scout came to his house to try to recruit him. However, Laskin’s mother would not let the scout in the door because she did not see baseball as a very promising vocation. In the 1920s, this Jewish mother was probably right. Today, I’m not so sure that Jewish parents wouldn’t be happy to see their children choose baseball over law.

The Canadian Constitution contains many other revelations and anecdotes, with the hope of convincing Canadians that our Constitution is neither dull nor boring. In fact, it contains great stories of our success as a country. But, like many things Canadian, those stories are not well appreciated by our own citizens. It is time for that to change.

Adam Dodek grew up in Vancouver and wrote for the Jewish Western Bulletin (now Jewish Independent) while he was a student at McGill University and the Hebrew University of Jerusalem. He is a law professor at the University of Ottawa. The Canadian Constitution was published in April and it includes the full text of the Constitution plus explanation and commentary. Read more about it at thecanadianconstitution.ca.

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