Canada a 'constitutional superpower'

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The Queen signs Canada’s Constitution on April 17, 1982 in Ottawa as then-prime minister Pierre Trudeau looks on. ( RON POLING / THE CANADIAN PRESS ARCHIVES)

Thirty years after Canada "brought home" its Constitution from Britain and controversially enshrined the Charter of Rights and Freedoms, the nation's fundamental legal framework has emerged as the No. 1 constitutional model for the world, according to a new American study that also tracks the "free-fall" decline of the U.S. Constitution as a template for other countries.

The finding comes at a time when Canadians are preparing to mark Tuesday's 30th anniversary of the patriation of the Canadian Constitution and the adoption of the Charter at a landmark Parliament Hill ceremony on April 17, 1982, with Queen Elizabeth and then-prime minister Pierre Trudeau.

The constitutional milestone was achieved after tense negotiations at a first ministers conference in Ottawa in November 1981 that ultimately saw Quebec left out of the agreement but the nine other provinces and the federal government -- led by Trudeau and his justice minister Jean Chrétien -- come to terms on patriating the 1867 BNA Act and adopting the powerful new declaration of Canadians' rights and freedoms.

Canadian legal scholar David S. Law, a professor at Washington University in St. Louis, and University of Virginia law professor Mila Versteeg used a mathematical approach in assessing the relative global influence of various nations' constitutions.

They determined Canada has a greater claim than any other country to have displaced the U.S. as the world's "constitutional superpower."

The study, to be published in June in the New York University Law Review, recently prompted a front-page story in the New York Times -- headlined " 'We the People' loses followers" -- that lamented the waning international influence of the U.S. Constitution.

"Constitutional drafters rarely invent new forms of political organization or discover new rights from whole cloth, but instead lean heavily upon foreign examples for inspiration," the authors state in the paper.

"The fact that the U.S. Constitution no longer serves as the primary source of inspiration for constitution-making in other nations thus begs the question of what, if anything, has emerged to take its place," they write.

"One possible heir to the throne also happens to be America's closest neighbour.

"The Canadian Constitution has often been described as more consistent with, and more influential upon, prevailing global standards and practices than the U.S. Constitution."

Having crunched the numbers, Law and Versteeg conclude: "The data suggest that the answer may be yes. Unlike the U.S. Constitution, the Canadian Constitution is increasingly in sync with global constitutionalism."

Law explained to Postmedia News that each of the provisions within the constitutions of "all of the so-called constitutional leaders" -- the U.S., Germany, India, South Africa and Canada -- were "turned into a series of numbers" to enable comparisons with the dozens of constitutions drafted in other countries around the world since the Second World War.

The idea was to compare the degree to which certain rights -- such as freedom of speech, provisions protecting minority languages and the right to bear arms -- were shared by other nations as they created or amended their constitutions over the past 65 years.

For comparative purposes, the 1960 Canadian Bill of Rights -- though not a full-fledged constitutional document like the Charter -- was included in the study.

"Once you turn every constitution into a series of numbers, you can numerically compare the similarity of any two constitutions," said Law. "And there was a unique pattern on the part of Canada."

When the Charter was adopted in 1982, the degree of similarity between Canada's Constitution and those of other countries "nosedived," said Law.

"As soon as the Charter is adopted, the Canadian Constitution shifts out of the global mainstream," he explained.

But then, by the late 1980s, the Law-Versteeg analysis shows other countries moving "with a vengeance" to match Canada's constitution.

"What this strongly implies is that whatever Canada did in writing the Charter," said Law, meant that "other countries are imitating the Charter" or that Canada's constitution-makers in the early 1980s "did an excellent job of anticipating global trends."

In February, during a television interview in Egypt about that country's ongoing political revolution, U.S. Supreme Court Justice Ruth Bader Ginsburg sparked controversy back home by proposing Canada's Charter of Rights and Freedoms or South Africa's new constitution -- widely known to have also been inspired by Canada's 1982 reforms -- as a good model for Egyptian lawmakers.

"I would not look to the United States Constitution if I were drafting a constitution in the year 2012," said Bader Ginsburg.

Chrétien, who went on to serve as Canada's prime minister from 1993 to 2003, told Postmedia News recently that he had heard of the new U.S. study highlighting the global influence of the Charter and was "very proud" of its impact internationally.

"We in Canada are very modest," he said. "We tend not to celebrate any influence we have. Perhaps we have a bit of an inferiority complex... We should have a collective pride when things happen like that."

-- Postmedia News

Republished from the Winnipeg Free Press print edition April 14, 2012 A20