AnimalsMagazine

We can all use a little help in knowing what we don’t know we don’t know. And why it matters.

For example, do you understand our constitution? Have you heard of Article 35? Do you know about Delgamuukw or Sparrow or even the Berger Inquiry? Do you know how legal frameworks and historical context inform how we solve problems in Canada today?

No? That’s fine. As I said, we all need a little help understanding what we don’t know we don’t know.

In fact, a large portion of our population doesn’t understand an important part of our constitutional responsibilities as a nation. And that’s why a bit of background might be helpful.

Canada’s constitutional story started in 1867, with the British passing the British North America Act.

Of course, we remember that after a few kerfuffles between settlers from France and England – and England and America – that the British started getting nervous about the security of their North American colony. At the urging of English expats on this side of the ocean, the Brits thought uniting a couple of territories under one banner might be a jolly good idea for the Empire: Canada was born.

And by born, I mean the British North America Act of British Parliament created a basic constitution for us, helping structure our nation.

Until 1982, our constitution – the legal framework through which we govern ourselves – was in the hands of another nation, with amendments to the British North America Act having to be voted upon by British Members of Parliament at Westminster.

All of that changed, of course, with the passing of the Canada Act of 1982 – and its schedule, the Constitution Act – which finally allowed Canada to be responsible for our own constitution.

With its passing, we gained a couple of cool tools in addition to self-determination – like the Charter of Rights and Freedoms! It’s something that’s still evolving, but the Charter is often referenced as a landmark document that has greatly bettered our society.

But that’s not all!

The Constitution Act is long and defines things like equalization payments – still a debate in Alberta and Saskatchewan, by the way – and division of power between the federal and provincial governments – still a debate in Quebec, who, by the way, never formally signed the constitution.

Hold on, what?!

That’s right: Quebec never signed the constitution.

You see, the Constitution Act, if you haven’t already figured out, is imperfect. It was born out of frustration with the fact we couldn’t determine our own fate without the help of British parliament. Which was a bit ironic, as you’ll soon see.

The consequence? Not everyone loves themselves some Canadian constitution and it’s why Quebec never signed it (even if the Supreme Court has since ruled that they don’t need to in order for the constitution to be, you know, constitutional).

It’s also why former Prime Minister Brian Mulroney and his Progressive Conservative government of the day tried to fix some of the issues with the constitution in the hopes that Quebec might sign.

They didn’t.

You may have heard of Meech Lake and Charlottetown? Well, not the physical Meech Lake, outside Ottawa, or the physical capital of Prince Edward Island. Of course, I’m referring to the famous constitutional debates that took place in those two locations in 1987 and 1992, respectively.

Both accords attempted to change our constitution and both failed, but for very different reasons.

In order for Meech Lake to pass, it needed the unanimous support of parliament and the 10 provincial legislatures. One member of the Manitoba legislature – Elijah Harper – raised an eagle feather and voted no – and the accord soon died.

One person changed the course of Canadian history with one vote in one moment – demonstrating the power of one, but also illustrating the importance of knowing what we don’t know we don’t know.

You see, Harper voted against Meech because he felt – and many Indigenous peoples felt – that the changes to the constitution would limit the rights of those who occupied this land first. Policymakers were so focused on the regional differences between Quebec and the rest of Canada that they neglected to realize how other perspectives might view the accord. They didn’t think to ask the bigger question and, as such, they failed to get the result they wanted.

And that, friends, isn’t just history, it’s also foreshadowing.

Stay with me.

Charlottetown attempted to right the wrongs of Meech by including more stakeholders, most specifically Indigenous nations and their representatives. When an agreement was reached, this time it was put to the public – a straight up and down yes/no referendum vote.

It too failed.

Why? Well, this time policymakers didn’t pay enough attention to subtle regional differences. Negotiators of this accord failed to realize that a compromise deal between very different perspectives might be too watered down for some people in some parts of the country – namely the west – to support Charlottetown.

And it’s about now that you’re probably wondering: Why am I boring you with the history of the constitution?

Two reasons!

Firstly, Meech and Charlottetown should be a constant reminder that getting broad consensus is hard. No matter where we stand on an issue, we must realize, in a democracy, we need our peers – including those we disagree with – to support, or at least not oppose, our solutions to a problem. But getting our peers to support – or not oppose us – isn’t as simple as a middle-of-the-road compromise.

Secondly, and more importantly, in today’s society we want, say, pipelines built faster or, say, parks created more quickly. The reason for inaction or indecision, in many cases, isn’t due to a lack of will; it’s a by-product, in some ways, of the fall-out from Meech and Charlottetown.

You see, we’re not governed by the constitution we want to have or wish we had. Our decisions are based on the constitution we do have.

And in our constitution? There is this clause: Section 35.