7 Alta. L. Rev. 103 (1969)
Constitutional Reform of the Canadian Judiciary

handle is hein.journals/alblr7 and id is 119 raw text is: CONSTITUTIONAL REFORM OF JUDICIARY     103

CONSTITUTIONAL REFORM          OF THE CANADIAN JUDICIARY
PETER H. RUSSELL*
A consideration of both the judicial sections of the B.N.A. Act and the
public expectations concerning the judiciary suggest three basic norms
which are relevant to the exercise of judicial power in the Canadian
Constitutional system-the independence of the judiciary, bilingualism
and biculturalism, and federalism. The author analyzes the Canadian
judiciary from the point of view of each of these precepts and makes
suggestions for constitutional reform of the Canadian Judiciary.
The question of reforming the judicial provisions of the Canadian
Constitution must first be put in the general context of constitutional
reform in Canada. I am certainly one of those who wholeheartedly
favours a broad-based reconstruction and repatriation of the Canadian
Constitution. And it can be said that a  of February, 1968, the federal
government and the provinces are committed to begin working towards
a revision of the Constitution. The immediate cause of this current
interest in constitutional reform is, of course, the political confrontation
between Quebec and the rest of Canada. In this context constitutional
revision is apt to be approached by government negotiators primarily
as a matter of political tactics. Up to a point that is both unavoidable
and appropriate, for the classic purpose of constitutional settlements
has been to crystallize the resolution of basic conflict in the body politic.
But a constitution should also serve a more timeless purpose: for the
on-going public life of the polity it should establish the fundamental
norms governing the ways in which authoritative power may be
acquired, distributed and exercised. In a democratic age, to be effective
these basic constitutional principles must be widely accepted and under-
stood throughout the community. It is in this latter respect that the
existing Constitution, the B.N.A. Act, is most wanting, and it is this
inadequacy which provides the deeper reason for constitutional reform
at this time.
The opening phrase of the American Constitution, We the people
of the United States, in Order to form a more perfect Union, . . . ,
provides the main clue to the basic difference between the status and
role of the written constitution in our two countries. Granted there is
an element of political mythology in those initial words of the U.S.
Constitution, but still it is a mythology with very real roots in the
American political culture. For certainly the United States' Constitution
is much more a product and a possession of the popular political con-
science of that country than is the B.N.A. Act, with its colonial origins
and Imperial trappings, of ours. In practical terms this means that in
Canada there is an insufficient common understanding-at the political
level-of the content and the purpose of the important provisions of
the Constitution, with the result that in constitutional politics almost
anything goes because few people know. It is in overcoming this situation
that repatriation and revision of the B.N.A. Act should find its deepest
meanings-for what is involved is replacing the Imperial Parliament
* Professor of Political Economy, the University of Toronto. This paper was prepared
for the Annual Meeting of the Association of Canadian Law Teachers held in Calgary
in June, 1968.

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