Building National Identity through the Constitution: The Canadian Charter Experience
(2020) Anna Olijnyk & Alex Reilly, Constitutions and National Identity
28 Pages Posted: 9 Apr 2020 Last revised: 1 Oct 2020
Date Written: 2020
There is little doubt that the Charter has become strongly connected to Canadian national identity. It is recognised by Canadians as the most important symbol of their country, ranking above the flag, the national anthem and ice hockey. The Charter’s perceived importance is hardly surprising in light of the seismic legal and political changes that it unleashed. The Charter reshaped the institutional balance of powers and produced many (sometimes divisive) changes to Canadian law, a process that continues to the present. It also sparked a paradigm shift in terms of thinking about law: at least half the content of the Constitutional Law course taught at Canadian law schools focuses on the Charter, while Charter issues make up about 50 percent of the Supreme Court of Canada’s case load. Speaking from experience, it is challenging for Canadian law students to imagine that a legal issue might not involve the Charter! After almost four decades, politicians, jurists and academics continue to debate the role and meaning of the Charter and its rights and freedoms.
The Canadian Charter provides a useful comparator in considering potential changes to the Australian Constitution given a number of similarities between the two countries. Australia and Canada share a heritage of the English common law, the Westminster parliamentary system, a partly written and partly unwritten Constitution and federalism. Both countries have been influenced by English and American legal traditions. Both have similar demographic profiles and advanced resource-based economies. And both countries face persistent challenges on the long road to reconciliation with their First Nations peoples. Despite these similarities, there are also some key differences between Australia and Canada. The Charter experience must therefore be appropriately contextualised. Accordingly, this chapter does not argue in favour of Australia adopting the Charter model of rights or any particular Charter provision. Through a Charter case study, it instead seeks to provide a better understanding of the process that is involved in using constitutional change to build national identity, highlight some of the potential outcomes of that process and offer an evidence-based jumping off point for discussions about Australia’s constitutional future.
It also makes two interrelated claims: First, constitutions can contribute to building a new sense of national identity over time. Second, the way in which constitutions ultimately shape national identity cannot be entirely controlled or even accurately predicted from the outset.
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