BURTON: Canada's Constitutional crisis began in 1982

Terry Burton is a retired veteran of Alberta’s oil and heavy construction industry and a former member of the Alberta Apprenticeship Board.It will be suggested by many Canadians that one cannot and should not question or point out the flaws of what is fuelling our present Constitutional crisis. To be clear, I have deep admiration and respect for the framers of the Canadian Constitution; however, and sadly, their well-intended intentions have created quite the mess in our very divided and fractured country.Every political crisis has a beginning.Canada's current constitutional crisis did not begin with Danielle Smith. It did not begin with Preston Manning. It did not begin with Western alienation, equalization disputes, indigenous land claims, judicial activism, or growing independence sentiment.It began on April 17, 1982.For more than four decades, Canadians have been told that the Constitution Act, 1982, was a nation-building achievement that completed Canada's independence and secured our rights and freedoms. While that narrative contains elements of truth, it ignores another reality: the Constitution's architects created a deeply flawed governing document whose defects are now threatening the unity and stability of the country.The architects of the Constitution were undoubtedly intelligent and patriotic individuals. Yet intelligence and patriotism do not guarantee good or long-lasting judgment.History should judge them not merely by their intentions but by the results of their work.And the results are becoming increasingly difficult to defend..A constitution should provide clarity.Canada's Constitution provides ambiguity.A constitution should limit conflict.Canada's Constitution often fuels it.A constitution should restrain power.Canada's Constitution has frequently transferred power away from elected representatives and into the hands of judges, bureaucracies, special interests, and competing constitutional claimants.The framers left so many critical issues unresolved that the Constitution has become less a rulebook and more a battleground.Consider Section 35 and related provisions concerning Aboriginal and treaty rights..No reasonable Canadian disputes the need to recognize historical obligations or to address legitimate grievances. However, the constitutional language was drafted so broadly that successive courts have been left to define its meaning through decades of litigation.The result has been constant legal uncertainty, competing interpretations, economic paralysis in some regions, and a growing perception among many Canadians that the Constitution creates different classes of citizenship and rights.Whether one agrees with that perception is almost irrelevant.The fact that millions of Canadians hold it demonstrates a constitutional failure.Good constitutional design should minimize such conflicts.Instead, the Constitution institutionalized them.The same problem exists with equality rights provisions.Canadians were promised equality under the law. Yet the Constitution simultaneously created provisions permitting differential treatment based on various classifications and government objectives..The consequence is that Canadians increasingly debate who qualifies for special consideration rather than embracing a common standard of citizenship.Again, one may support or oppose these policies.The larger issue is that the Constitution itself contains competing principles that inevitably generate social division.Then there is equalization.Perhaps no constitutional provision better illustrates the gap between noble intentions and practical consequences.The objective was understandable: reduce regional disparities and ensure reasonably comparable public services across Canada.Instead, equalization has become one of the greatest sources of regional resentment in Confederation.For decades, productive provinces have watched billions leave their jurisdictions while recipient provinces develop political and economic dependencies that undermine incentives for reform..The result is a system that satisfies few and angers many.A constitutional mechanism intended to strengthen national unity now weakens it.How did the framers fail to foresee that outcome?More troubling still is the extraordinary power that constitutional ambiguity has granted to the judiciary.Canadians elect Members of Parliament.Canadians elect provincial legislatures.Canadians do not elect judges.Yet on many of the most contentious issues facing the country, judges increasingly function as constitutional policymakers..This was not an accident.It was the predictable consequence of drafting broad constitutional language while providing insufficient guidance as to its limits.When constitutional provisions lack precision, judges become lawmakers by necessity.Parliament becomes secondary.Provincial legislatures become secondary.The courts become the ultimate political institution.No democracy should be comfortable with such an arrangement.Perhaps the greatest failure of all, however, lies in the amending formula itself..The framers understood that future generations would need to update and improve the Constitution. Every constitutional document eventually requires modification.Yet they created an amendment process so difficult that meaningful reform has become virtually impossible.This is the ultimate irony.Canada's Constitution contains obvious ambiguities, unresolved jurisdictional conflicts, controversial provisions, and growing regional grievances.Yet the mechanism designed to fix those problems is largely unusable.The Constitution has become Canada's political equivalent of a vehicle with defective steering, faulty brakes, and an engine warning light permanently illuminated — but whose hood has been welded shut.When Preston Manning raises concerns about the future of Confederation and when Danielle Smith speaks of Alberta's place within Canada, they are not creating constitutional tensions.They are exposing tensions that have existed for decades..Similarly, when Brian Peckford argues that provinces should make fuller use of existing constitutional powers, he is correct. But even that observation inadvertently highlights the larger problem.Why are Canadians still arguing about the meaning and limits of fundamental constitutional provisions more than forty years after they were enacted?Because the Constitution was never as complete, coherent, or durable as its architects believed.That is the uncomfortable truth many Canadians are increasingly recognizing.The constitutional difficulties confronting Canada today are not primarily failures of politicians.They are failures of constitutional design.The framers of 1982 deserve credit for patriating the Constitution and establishing full constitutional independence..They also deserve responsibility for creating a constitutional framework that has enabled judicial expansionism, fuelled regional alienation, intensified jurisdictional disputes, entrenched unequal treatment under law, and made meaningful reform nearly impossible.A nation cannot solve a problem until it identifies its source.Canada's constitutional crisis did not begin with Alberta.It did not begin with Ottawa.It began when a flawed constitutional foundation was poured in 1982, and Canadians were told it would last forever.Forty-four years later, the cracks are everywhere.Canada desperately needs, and Canadians deserve, a constitutional review conference, reform of the amending formula, a much clearer definition of federal and provincial jurisdiction, greater limits on judicial policymaking, and a comprehensive review of equalization and Section 35 jurisprudence.To ignore such requirements will only lead to more internal division, animosity, fracturing, social upheaval, and the eventual implosion of what was once seen as a jewel and exemplar in the world’s countries.Terry Burton is a retired veteran of Alberta’s oil and heavy construction industry and a former member of the Alberta Apprenticeship Board.

BURTON: Canada's Constitutional crisis began in 1982

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