C2C Journal has just released its latest issue: Should We Reopen the Constitution? Please follow the links to read our latest articles: Reconsidering Canada’s Unloved
Day: September 2, 2014
Even the framers of Canada’s 1982 constitutional reforms thought they were flawed. But reopening the Constitution is a taboo subject among Canada’s political class and as a result, from Senate reform to internal trade to aboriginal rights, it is increasingly judges, instead of elected legislators, who are calling the shots. The contributors to the Fall Quarterly edition of C2C Journal examine the spectrum of constitutional maladies and offer provocative prescriptions for reform.
A Constitution ought to be inspiring and functional. Canada’s is neither. Instead of a clear set of governing principles, it’s a mass of contradictions. Instead of a framework for democratic evolution, it marginalizes legislators. The 1982 Framers vandalized the work of the 1867 Founders, put the country in a Constitutional straightjacket, and left our fate to the Courts. However risky and difficult another attempt at reform might be, John Robson says it’s time to take the plunge.
Sure the Constitution’s a mess. Absolutely it puts Canada at risk of succumbing to what Vaclav Havel called “soft totalitarianism,” where judicial whim becomes legal tyranny. But another round of starry-eyed constitutional deal-making is even more dangerous. Peter Stockland urges patience, for the damage done in 1982 will eventually be undone as our core values of parliamentary supremacy and the common law reassert themselves.
Ever since the Quiet Revolution, the question “What does Quebec want?” has been central to every debate over constitutional reform. With the federalist cause ascendant in Quebec today, it seems an opportune time for a reasonable discussion about the question. C2C’s Mathieu Dumont and Quebec federal Conservative MP Maxime Bernier recently had that discussion in Montreal. Bernier said Quebec has no constitutional agenda other than for Ottawa to respect provincial jurisdiction. It is a measure, perhaps, of how much Quebec – and Canada – have moved on from the bitter, paralyzing debate that nearly tore us apart in the late 20th century.
Depuis la Révolution tranquille, la question « Que veut le Québec? » a été au centre de tous les débats sur la réforme constitutionnelle. Aujourd’hui, la cause fédéraliste gagne en popularité au Québec et il s’agit d’un moment opportun de se pencher sur la question. Mathieu Dumont de C2C et le député conservateur québécois Maxime Bernier se sont récemment entretenus à ce sujet à Montréal. Bernier affirme que le Québec n’a aucun objectif constitutionnel outre exiger qu’Ottawa respecte les compétences provinciales. Ceci semblerait indiquer que le Québec (ainsi que le Canada) a beaucoup évolué depuis l’époque des crises constitutionnelles qui ont failli déchirer le Canada à la fin du 20e siècle.
The 1867 Founders put unfettered interprovincial free trade in the Constitution. A 1921 Supreme Court decision suffering from a Prohibition hangover took it out, and Canada’s economy has suffered from domestic protectionism ever since. All this could be fixed, says Marni Soupcoff – and perhaps even the distortions of Equalization lessened, as well – with litigation aimed at restoring the Founders’ original intent.
Nothing demonstrates Canada’s constitutional paralysis quite as vividly as the impossibility of Senate reform. The Upper House is a national scandal, everybody wants it reformed or abolished, and we’ve been trying to fix it for a hundred years. The Harper government has tried harder than most, only to be thwarted by the Supreme Court. But Ian Brodie says reformers should not lose faith. Where there’s a will there’s a way – and both may be at hand.
Everybody bellyaches about judges when they disagree with a decision, but in Canada conservatives and libertarians have grumbled louder and longer than most. Many blame the 1982 Constitution and Charter when decisions don`t go their way, but Bob Tarantino says the problem is not the law, it’s the judges. Liberals and progressives have dominated the legal system for decades and if the right wants to balance the scales of justice, it has to build a conservative legal community from the ground up.
The aboriginal rights provisions in the 1982 constitutional reforms profoundly changed the way Canada deals with First Nations land and treaty claims. Before then they were mostly resolved through negotiation with governments. Since 1982, the courts have taken a lead role. As Chief Justice of the Supreme Court of Canada, Beverley McLachlin has made “reconciliation” the guiding principle of decision-making related to aboriginal rights cases. But after 30 years of litigation, writes Yule Schmidt, reconciliation is still a long way off.