Reconsidering Canada’s Unloved Constitution

Compromise - Editorial MainCaptionThe idea for the theme of this edition of C2C Journal was originally born out of conversations I had with several of the surviving framers of the 1982 Constitution Act between 2001 and 2005. I wanted to know if they were satisfied with the way their work had been interpreted by their political successors and the courts. Former premiers Peter Lougheed, Allan Blakeney, Sterling Lyon, Brian Peckford and John Buchanan all expressed varying degrees of frustration and disappointment. Most of them felt the courts had usurped the power of elected legislators, and some were frankly astonished by rulings on things like gay marriage, prisoners’ voting rights, and aboriginal land and treaty claims that had been derived from the constitutional amendments they agreed to.

It seemed to me that if the framers didn’t like the way their Constitution was evolving, it probably needed more work. Brian Mulroney and the premiers who worked on the Meech Lake and Charlottetown Accords obviously felt the same. Mulroney’s primary objective was constitutional rapprochement with Quebec, but the agenda sprawled to include Senate reform and much else, and the whole process ended in disaster that destroyed the Progressive Conservative party and inflamed the separatist movement in Quebec.

More than two decades have passed since our last constitutional rodeo. Things are much calmer now, but Quebec still hasn’t “signed” the Constitution and relations between the judicial and legislative branches of government are difficult, to say the least. This year alone, the Supreme Court of Canada rejected a government nominee for the court, proclaimed the government’s Senate reform efforts unconstitutional, overturned Canada’s prostitution laws, and dramatically expanded the scope for aboriginal land claims.

Many would argue that all this is just part of the natural dynamic tension between legislators and the courts, perfectly in keeping with our common law tradition. In fact, most of the contributors to this edition of C2C would rather leave the Constitution alone. They might not like what was done to it in 1982, or how those changes have been interpreted by the courts, but they trust that our core democratic values and traditions will eventually prevail.

But some believe we’re in uncharted territory called judicial supremacy, led there by the codification of rights in the 1982 amendments. They fear for the future of our democracy if elected legislators are made irrelevant by the courts. They hope for a federal government and a prime minister with the courage to undertake another round of reform. It’s inconceivable that anything will happen before next year’s election, but if Stephen Harper’s Conservatives win, he might see opportunities for a legacy project tackling many of the objectives that have informed his political career.

If so, he’ll find some thoughtful advice from the contributors to this edition of C2C. Some, like John Robson, think the 1982 reforms were extremely misguided and require a complete overhaul.  Peter Stockland agrees our Constitution is dangerously flawed, but believes reopening it would be even more dangerous, and he’s confident the balance of power between courts and legislators will eventually restore itself. Yule Schmidt, meanwhile, contends that court interpretations of the aboriginal rights provisions in the 1982 Constitution are taking Canada ever deeper into racial division, at great peril to our social harmony and economic potential.

Marni Soupcoff thinks our Constitution is perfectly clear on inter-provincial free trade, but it was muddied by a Prohibition-era court ruling. Since then we have so surrounded it with barriers to competition and efficiency, it’s going to require litigation to restore the economic freedoms envisioned by the Fathers of Confederation. In a similar vein, Bob Tarantino says there’s nothing in our Constitution that can’t be fixed by a dedicated effort to achieve a more balanced philosophical perspective in our law schools and courts.

Ian Brodie is frankly astonished by the Supreme Court’s defence of the Senate status quo, but thinks limited constitutional reform might be doable with the threat of Quebec separatism in abeyance. And libertarian Quebec Conservative MP Maxime Bernier, in an interview with Mathieu Dumont, offers a surprising answer to the age-old constitutional question, What Does Quebec Want? Nothing except to be left alone, he says.

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