03/21/2013 04:56 EDT | Updated 08/06/2014 10:59 EDT

The Trudeau Heritage of an Unachieved Canada

It is well known and proclaimed that the province of Quebec is not a signatory of the Canada Act 1982. This historical and remarked rebuff triggered from the ROC a strong reaction of disgruntlement against Quebec which was to blame, namely to prolong an ongoing constitutional crisis. In a sense, ROC's reaction was justified: Canadians are entitled to a Constitution that is complete and reflects their deepest aspirations. Quebec stubbornness became a threat. However, the ROC should worry more, much more, because of an unexpected discrepancy in the ongoing but often denied Canadian constitutional debate. This time Quebec is not to blame and moreover it plenty justifies Prime Minister Stephen Harper dedication to the Queen.

Let me introduce. Not many people noticed that the wording of two of our constitutional founding instruments, one introducing the other, differ to the pinnacle of incompatibility on the status of Canada. I refer to the Royal Proclamation signed by our Sovereign, Queen Elizabeth II on April 17, 1982 and the Canada Act adopted by the Parliament of Westminster and sanctioned on March 29 of the same year.

Let's explain. Here's how. While the Royal Proclamation enunciates clearly in French "un État souverain" for Canada and in English an "independent state", the Canada Act 1982, an English law adopted by a simple majority of both houses at Westminster, remains silent on such a fundamental issue. Why are these expressions absent from the wording of the Act? Why Westminster did not announced clearly before both of its Houses and prior to the Royal Proclamation that Canada was about to become on an independent state? Because from the perspective of England, I can reasonably assume, the sole purpose of the purpose of the Canada Act 1982 was the Charter of Rights and Freedoms and the so called amendment formula, not independence!

The purpose of this note is crystal clear: having the power to change our Constitution is not the epitome of independence if the Motherland can abridge by a simple majority of both its houses the enabling law and send us back to the Statute of Westminster of 1931. That's exactly what could happen any time soon to our so called founding document, the Canada Act 1982. Having Westminster to declare Canada's independence within the founding document would have been different to the eyes of the international community and conform to international law. Westminster would have clearly relinquished its power to legislate for Canada, even its possibility, on whatever basis. Canada would have been proclaimed a sovereign state to the eyes of the world and beyond reasonable doubt. But that's not the case.

We could widely debate the motivation of people engaged in such a constitutional blunder passed under the radar of history. With most respect for opposing views, the bare and simple explanation could be politics of a very cheap nature. It allowed Trudeau's Liberals to sell the idea of an independent Canada to Quebecers while on the same pace and ticket make the Ontarians believe that Monarchy and our colonial link to England have been maintained. Such a strategy of black and white did not gratified the liberals with a majority government at the next federal election. Cheap and small politics did not entail in 1984 a spectacular results especially when a constitutional lie becomes the founding paradigm of a nation. PM Mulroney and the Conservatives took power with a strong majority.

From a constitutional law perspective, the Queen represents the pinnacle of the executive power: she affixes the royal assent that makes effective our laws. However, since Cromwell and the instauration of a separate and representative Parliament, the executive power of our Monarch is more of a symbolic nature than real. The same argument applies to the defense and foreign affairs where the Monarchy yields its traditional role and influence to the Prime Minister and its cabinet vested of powers conferred by the laws of Parliament to which they answer.

And so, if Westminster provides the Parliament of Canada with the legal instrument to amend its Constitution, namely the Canada Act 1982, nowhere is to be seen, or elsewhere, the recognition of Canada as an independent state by the British Parliament. The Royal Proclamation seems to have successfully escaped the scrutiny and due diligence of Parliamentarians and Lords to such an extent that, if they had knew it's contain, they would have probably disapproved. We insist: is it possible that our Sovereign and a few Canadian officials overstepped their power?

Hence, as of today the question remains: would it be possible for Westminster to abridge the Canada Act 1982 by a simple majority vote of its two chambers, therefore sending us back to the Statute of Westminster as the constitutional requirements to enact laws in Canada?

Very different from the U.S. Presidential role, the Prime Minister for Canada, like his British counterpart the Prime Minister of Great Britain, is not "Commander in Chief', namely the highest rank of the armed forces: both PM are not the heirs of a commander that waged and won a revolutionary war, a reminder of the heroic life of George Washington.

Despite being elected, the President of the U.S. is the constitutional heir, we may say, of a revolutionary leader and as such, is empowered of an uncompromising authority on defense and foreign affairs, a power that was many times confirmed by the United States Supreme Court.

One could argue that our Constitution is partly unwritten alike of Great Britain and that our Sovereign had the power to declare proprio motu the independence of Canada without the consent of Westminster. Such audacity would signal a return to England's history prior to Cromwell which is a non sense. Let's be clear: a constitution is written or not. In the latter case, it relies on constitutional conventions and tradition. That's Great Britain. The Constitution of Canada being primarily a law of Great Britain, it is therefore a written one.

However, no body contest the authority of Westminster on defense and foreign affairs, namely the Prime Minister and it's cabinet, and the Parliament to which they answer, notwithstanding the fact that it was a few century ago the province of Monarchy. It is called the primacy of the law and to Cromwell forever grateful we should be.

Besides, if the Royal Proclamation is not legally binding, what's left of the Canada Act 1982 and of the numerous court decisions enforcing the Charter of Rights and Freedoms? And in order to amend our Constitution, is it a trip back to the Westminster Statute of 1931 by which the Parliament of Great Britain could bind the Dominion of Canada as he wishes?

All these discrepancies enlighten how fragile is our constitutional framework as a sovereign state and explain why most politicians despise debating it. To such worrisome fragility, let's not forget our geostrategic alliances with the United States and the EU: NORAD and NATO. The entanglement of Canada with the United States, for instance, on the forefront of nuclear and conventional defense is undeniable and irreversible. For instance, Canada could never align with China without triggering a major crisis with our long time American friend and ally.

Hence, in this truncated and complicated geopolitical environment, simply raising the issue of Quebec independence seems naïve, gross indeed.

Claude Laferrière, Lawyer