Of Structure, Hierarchy, and Balance of Power

 In the submission of the Attorney General of Alberta (AGA) to the Supreme Court of Canada (SCC) in English Montreal School Board, et al. v. Attorney General of Quebec, et al. there is a phrase used that I want to explore further, especially with regards to S33 (The Notwithstanding Clause) of The Charter of Rights and Freedoms (The Charter).  

That phrase is "parliamentary sovereignty", and I think the Alberta submission embodies a very flawed understanding of it.  

Harper Tries To Foment A Crisis

Harper has taken a surprising number of losing cases to the Supreme Court of Canada.  Most, if not all, were obviously places where the government's position is one that is in direct contradiction with the Constitution of Canada.  Even a relative neophyte in Constitutional law in Canada can spot that, whether it is Harper's desire to "reform" the Senate or the government's daft position on prostitution.  

Now we have the CPC caucus starting to trot out the "undemocratic" talking points.

Dan Albas, the MP for Okanagan-Coquihalla, says that while he respects the courts he also believes an increasing number of groups are using litigation to advance policies the government will not put forward. 

"Often the Plan B is to do an end-run around our democratic process and turn to the courts where it seems some judges are quite happy to engage. This can result in decisions contrary to what have been decided in our democratic process," Albas told CBC Radio's The House.

Let's see ... the government is unwilling to engage with the issues that various groups are raising (presumably on ideological grounds, given the pattern of the Harper Government), so they take it to the courts.

First of all, that means that these groups are raising issues which are not just minor problems, but in fact have a legal basis where the current policy or laws are in fact inconsistent with the fundamental principles of Canada's legal system and laws.

Second, if the government is unwilling to engage on these issues, they leave the public with little other option but to force the matter by pursuing justice in the courts.

"Basically what you're having is a judge can overturn and then cost the taxpayer a lot of money without any accountability or representation on their behalf," Albas said. 

... 

The British Columbia MP said it's important to ask whether there is the right balance between the executive branch and the judicial branch to make sure every Canadian is well-represented. 

"If citizens through the democratic process are unable to make policy decisions because of unelected judges and well-financed interest groups, I submit we collectively lose," Albas said.

Well, we already know that Harper views the Constitution of this country as an impediment to his goals.  It stands to reason that he is also going to see the judiciary and any other branch of government that would dare challenge his wisdom as a bad thing too.

The Conservatives are basically taking the stance that as the governing party, they have a right to decide what issues they are going to address and when.  This is true ... to a point.  However, the courts can declare a given law or policy as illegal / unconstitutional on a variety of grounds when a case is put before them.

This is not "undemocratic" in the least.  In fact it is one of the cornerstones of a healthy democracy.  There are checks and balances in place which curb the power of the "democratic majority" (which I will point out in the last election was effectively just over 20% of the eligible voters) to run amok.

The point of an independent judiciary whose sole job it is to study and interpret the law of Canada is to ensure that the legislative and executive branches of our government cannot arbitrarily abuse the rights of citizens.  Make no mistake about it, what Harper proposed doing with the Senate abused your rights every bit as much as some of his laws.  By attempting to undermine the amending formula, he was effectively trying to set a precedent that the executive branch could propose and enact radical changes to the foundation of this country's laws without engaging with the provinces - thereby negating your democratic voice at not one level of government but two levels of government.

The judiciary in Canada isn't being "undemocratic" at all.  It is the Harper Government which is being undemocratic, and attempting to impose the tyranny of their followers on all Canadians without being held accountable.

Mr. Harper: Can You Even Read?

If I didn't know better, I'd swear that Harper doesn't know how to read a legal decision.  Yesterday, in Question Period, Harper said the following:

“The Supreme Court has ruled in its wisdom that the federal government can neither abolish the Senate nor, in fact, can the federal government actually propose reforms -- significant reforms -- to the Senate,” Harper said in the House.

This is complete nonsense.  The Supreme Court ruled that the Federal Government cannot unilaterally alter the Senate.  In other words, the Supreme Court ruled that changes to the Senate require the government to work in the framework of the Amending Formula embedded in the Constitution of Canada.

“That is all now, according to the Supreme Court of Canada, within the purview of the provinces. So my position has not changed. If the provinces believe as I do that there should be reform, they should bring forward those reforms forthwith. If they don’t believe that, they should bring forward amendments to abolish the Senate.”
Read more: http://www.ctvnews.ca/politics/provinces-should-propose-senate-reforms-forthwith-harper-says-1.1798071#ixzz30NXb5Yo6

Apparently, this is as close to negotiating consensus as Harper can get.  Acting like a petulant little child who has just been told "no, you can't have all the cookies", he tries to shift responsibility to somebody else.  In this case the provinces.

Frankly, if Harper wants to change the Senate, he is responsible for putting forth a vision for what a revised Senate should look like, and then work with his peers - the provincial premiers - to come to a consensus.  If he cannot build consensus among the provinces, that is his failing.

The amending formula for Canada's Constitution is a neatly crafted package which ensures that you can't make arbitrary changes to it without actually engaging with the rest of the country.  It requires that someone be able to foster consensus among the provinces to make amendments.  This is a good thing - it stays the hand of an autocrat, and requires actual leadership to achieve meaningful change.

Brian Mulroney was at least willing to try.  Both the Charlottetown Accord and Meech Lake Accord ultimately failed, but not because Mulroney was unwilling to negotiate with the provinces.  Instead, Harper sits there and acts like a petulant little child because the Supreme Court essentially told him to go do his job as Prime Minister.

Stephen Harper's legacy will be the redemption of Brian Mulroney.

Shorter Coyne On Senate Reform: Give All The Power To The PMO

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.Marginal note: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).Marginal note:

  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.Marginal note:

  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.

This is difficult for Coyne, and for Harper, to swallow.  Not only does it require that the Federal Government engage with the provinces, but that it do so as peers of the provinces.  Referendums are a useful tool in making certain political decisions, but not necessarily all of them.  In the case of amending Canada's constitution, the prairie provinces have long argued that the interests of Alberta, Saskatchewan and Manitoba are too readily suborned to the interests and desires of Quebec and Ontario when it comes to matters decided solely by representation by the will of "the majority population".  The amending formula of the Constitution is designed to ensure that regional interests are held in balance with those of the concentrated population.

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.