In the wake of this week's Supreme Court Hearings on the Senate Reform consultation questions that the Harper Government posed last spring, the National Post's Andrew Coyne has postulated that the provinces shouldn't be part of the amending formula.
The government's lawyers have gamely maintained that much of tis short-term agenda for Senate reform - term limits, consultative elections and so on - could be pursued unilaterally. At the other extreme, abolition, they submit, could be achieved under the Constitution's general amending formula: seven provinces with 50% of the population.
The consensus view is that the feds are out to lunch. Almost no one supports them in their first position; and while three provinces agree that seven-and-fifty is sufficient for abolition, the rest insist that unanimity is required. And if that is so, everyone seems to agree, it's not going to happen.Mr. Coyne seems to think that this is an unreasonable burden for our illustrious PM to have to bear.
If every province's consent - and by province, of course, we mean premier - were required, then any one premier could stop it. Thus each would have an incentive to demand the moon as the price of his consent. The whole process would bog down in the same mire that sank Meech Lake and Charlottetown.
Suggest a national referendum as a solution and be prepared for the scorn that blows your way. Meaningless! No legal consequence! Whatever the people might wish the Constitution requires the premiers' consent to amend it. If the premiers don't want it - even if one premier doesn't want it - then it's not on.Of course, Mr. Coyne is conveniently mischaracterizing what happened with the Meech Lake and Charlottetown accords.
Meech Lake died in the Manitoba legislative assembly:
In Manitoba, however, things did not go as planned. With many First Nations protesters outside, the legislative assembly convened to approve the accord. Unanimous support was needed to bypass the necessary public consultation and Member of the Legislative Assembly Elijah Harper raised an eagle feather to mark his dissension. Harper opposed bypassing consultation because he did not believe First Nations had been adequately involved in the accord's process.
Even though a legal route was found to give Manitoba more time (the deadline would be extended three months, with Quebec being able to re-approve the Accord), Clyde Wells and opposition leader Thomas Rideout agreed to cancel the planned free vote in the Newfoundland House of Assembly, because the outcome would have most likely been a refusal. The accord was officially dead.The Charlottetown Accord died in precisely the kind of mechanism that Coyne suggests going forward - a referendum.
What Coyne is really playing to is precisely the weakness that I argued earlier will prevent Harper from ever achieving meaningful parliamentary reform - his unwillingness to engage with the collective needs and interests of the premiers. Ironically, both Meech Lake and Charlottetown accords did just that and at that level were successful enterprises. Meech Lake died in large part on Elijah Harper's vote in the Manitoba Legislature, and in part because support for it collapsed in Newfoundland subsequently.
In fact, the Meech Lake accord's failure raises an additional point which Coyne is overlooking - that is the impact of constitutional amendments on First Nations peoples in Canada.
Constitutions aren’t supposed to be easy to amend. But when a Constitution cannot even be amended in obedience to the desires of the vast majority of its people, it is no longer the embodiment of their highest ideals of government. It is an impediment to them. It is less a basic law than a straitjacket.
The problem isn’t so much the level of consent that is required, but whose. The Constitution is supposed to belong to the people. In fact it belongs to the premiers — a legacy of the patriation round. Before then it was unclear just whose consent was required. The British North America Act was silent on the matter: As an act of the British Parliament it was assumed that any amendments to it would be enacted by the same means.This is where I get rather annoyed with Coyne, who is clearly playing a poorly thought-out bit of populist politics. In fact, if he thought about it for even five minutes, he would realize why the amending formula in the Constitution is written as it is. One of the issues in Canada is that our population is heavily concentrated in a couple of regions, potentially to the detriment of other regions. The general amending formula is designed to ensure that the two most heavily populated provinces (Ontario and Quebec) cannot "gang up" on other provinces and create significant imbalances in power that would negatively impact smaller population centers like PEI, or Saskatchewan.
38. (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by(a) resolutions of the Senate and House of Commons; and(b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.Majority of members
(2) An amendment made under subsection (1) that derogates from the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province shall require a resolution supported by a majority of the members of each of the Senate, the House of Commons and the legislative assemblies required under subsection (1).
Expression of dissent(3) An amendment referred to in subsection (2) shall not have effect in a province the legislative assembly of which has expressed its dissent thereto by resolution supported by a majority of its members prior to the issue of the proclamation to which the amendment relates unless that legislative assembly, subsequently, by resolution supported by a majority of its members, revokes its dissent and authorizes the amendment.
Revocation of dissent(4) A resolution of dissent made for the purposes of subsection (3) may be revoked at any time before or after the issue of the proclamation to which it relates.
In short, if Harper isn't willing to engage with all of the provinces in the spirit of political discourse and compromise, then chances are his much vaunted desires for Senate reform will come to naught. Other Prime Ministers before him have managed to achieve political consensus among the provinces, I fail to see why this is suddenly "impossible". Difficult, perhaps, but hardly impossible - just beyond Mr. Harper's willingness to attempt.
I for one would not want to see sole authority over this nation's constitution in the hands of Parliament alone - especially not this parliament or the current PM. The risk of malignant dictatorship is far too great.