Anyone who has watched very many American television programs
is familiar with the fifth amendment
of the U.S. Constitution
Among other rights
, it confers a "right to remain silent".
The existence of this right has led to the response "I'm going to take the fifth" being used when one is faced with a question which one doesn't want to answer.
As with many aspects of American culture
, this response has made its way across the 49th parallel
(i.e. the main part of the border between Canada
and the United States
) and it isn't all that unusual to hear a Canadian
say "I'll take the fifth".
Canadians and residents of Canada are bound and protected by the Canadian Constitution.
It is, of course, a different document than the U.S. Constitution and it has its own history of amendments.
The foundation document for the Canadian Constitution is the British North America Act or Constitution Act 1867.
This act has been amended a number of times over the years.
The legislative history of this act is rather muddled but at least one source (see below) lists the first few amendments as:
- "Rupert's Land Act" of 1868 which transferred Rupert's Land, i.e. the land owned by Hudson's Bay Company, to Canada.
- "Temporary Government of Rupert's Land Act" of 1869 providing for a transitional government of Rupert's Land until the Government of Canada could enact legislation to manage the new land.
- The "Manitoba Act" of 1870 which created the Province of Manitoba.
- The "British North America Act" of 1871 which gave the Government of Canada the right to create new provinces.
- The "Parliament of Canada Act" of 1875 which clarified the power of the Canadian Parliament to set the privileges, powers and immunities of Members of Parliament.
So there you have it - a Canadian who is "taking the fifth" is, ummmm, expressing support for Parliament's right to set the privileges, powers and immunities of Members of Parliament?
Surely you jest!!!???
- It could be worse.
I recall reading somewhere that the fifth amendment to the British North America Act dealt with the placement of "harbour buoys".
I've no idea if my memory is wrong or if the list of amendments that I've used above is wrong (and I'm not sure which amendment I'd rather have as the fifth one).
- Canadians do have quite strong protection against self-incrimination - see Section 11c in the Canadian Charter of Rights and Freedoms.
Unfortunately, the infamous Notwithstanding Clause allows Parliament or a Provincial Legislature to designate (for a renewable period of five years) that an Act isn't subject to sections 7 through 15 of the Charter of Rights and Freedoms.
In theory, this clause could be used to take away the right against self-incrimination.
In practice, the Notwithstanding Clause is political dynamite which governments use at their peril.
That said, one does wonder just how far public opinion would allow a government to go in appropriately charged situations.
- I'm a Canadian living in Canada who believes that it is important to be able to laugh at oneself.
- a web paged titled "Canadian Constitutional Documents" located at http://insight.mcmaster.ca/org/efc/pages/law/cons/Constitutions/Canada/English/cons.html (last accessed 2002/10/10)