Monday, 16 April 2012

Harper, Quebec and the Constitution at Thirty

A Commonwealth is said to be instituted when a multitude of men do agree, and covenant, every one with every one, that to whatsoever man, or assembly of men, shall be given by the major part the right to present the person of them all, that is to say, to be their representative; every one, as well he that voted for it as he that voted against it, shall authorize all the actions and judgements of that man, or assembly of men, in the same manner as if they were his own, to the end to live peaceably amongst themselves, and be protected against other men Hobbes, Leviathan                                                                                                                 
While the initial burst of pettiness surrounding the general reluctance of the Conservative government to celebrate the thirtieth anniversary of the patriation of the Constitution, and by extension the Charter, is not surprising, statements made by the prime minister are particularly troubling. Harper seemed to evoke the ghost of former Quebec premier René Lévesque in his cited reasons for downplaying the event, particularly the discord surrounding Quebec's 'missing signature' on the document. While they seem slight, Harper is doing two very problematic things at once. First, he is unwisely reopening old separatist wounds at a time when support for sovereignty is on the wane. Second, Harper undermines the legitimacy of the Constitution itself and, by extension, the groundwork of this country's governance.

A few points need to be addressed here. First, the notion that Quebec's signature on the document somehow undermines the process is without grounds. It was entirely within the purview of the imperial parliament (Westminster) to amend the existing British North America Act. Indeed, while undesirable, unilateral action on the part of the central government would have been acceptable. In the Supreme Court's Patriation Reference, the court noted three important points. First, the court noted that a constitutional convention had taken affect whereby the central government should not act unilaterally but was expected to consult with the provinces. Second, and directly tempering the first point, the court found that unanimous consent was not required. Third, while the convention had developed, Ottawa was not legally bound and, as such, was free to seek terms for patriation. Ottawa fulfilled its duty to consult with the provinces, reaching a deal with all but Quebec. The process, constitutionally and legally speaking, was sound. Moreover, it could reasonably be argued that under the terms agreed to under the existing constitution, Quebec was bound the process.

That Quebec's signature is missing from the document is the product of personality - in the form of René Lévesque - and parochial provincial politics. It is likely nothing short of some form of sovereignty association  - a form of union violating the initial terms of the compact - would have sufficed. In the face of unreasonable demands to play to the ideological and political machination of the home audiences, Lévesque was unwavering. Quebec's demands would have fundamentally altered the terms of Confederation and, as such, entirely negated the point of such a union. More importantly, however, is the fact that, in subsequent actions, Quebec has tacitly endorsed the provisions of the Constitution Act, 1982 by making use of its terms and, more explicitly, by amending the document itself. Quebec cannot claim the document lacks its signature when that province has affixed its seal on more than one occasion. This, it would seem, gives consent to be governed by the document. Indeed, from a strictly Hobbesian vantage point, the initial agreement to form a polity could not be invalidated by Quebec alone, nor was renewed consent required.

After thirty years, the absence of Quebec's formal signature on the document should not be seen as a  barrier. While unfortunate, however, it does undermine the legitimacy of the document. Moreover, given that the public democratically rejected mega-constitutional reform in favour of the status quo, the decision of the Canadian people as a whole should take precedence. Beyond this, if the federal government was serious about bringing Quebec unquestionably into the constitutional firmament, it has the means to do so. As Cameron and Krikorian argue, the use of a bilateral amendment between Ottawa and Quebec City could provide one potential avenue. 

Harper's unfortunate comments combine an unending animus against Liberal Canada with a will to do whatever it takes, regardless of the dangers, to bury his enemies. His disdain for the Charter and the values it represents - equality and language rights in particular - are no secret. The widespread popularity of the Charter coupled with the fact of its authors makes it a difficult pill for Harper to swallow, particularly as the document - and the courts as its arbiters - are likely to slow  his agenda in the coming years. As a result, he has chosen to try and ignore it.

The decision to ignore the broader patriation, however, it problematic and entirely hypocritical, especially as the government is prepared to spend millions celebrating the War of 1812 and Queen Elizabeth's diamond jubilee. While the war is important - although vastly overplayed in significance as it was fought by British citizens, citizens who would not think of themselves as Canadians for over another century - it pales in comparison to the historic significance of 1982. This anniversary marks Canada's final steps toward becoming a fully sovereign and independent nation after decades of constitutional wrangling. It is this event - and particularly the entrenched Charter of Rights and Freedoms - which inform Canada's notion of itself, far more than a distant colonial war fought for king and empire.

That Harper would focus on a marginal event instead of the formative constitutional event binding the country speaks volumes to his pathology. (Freedom of thought and conscience guarantees the right to be petty.) Sadly and event that could be used to further unite Canadians is being squandered because of the ideological dictates of the government which see partisan divisions as more important than respect for governing institutions. Indeed, if the constitution doesn't warrant respect and administration - whatever its flaws may be - what does? While patriation at the time was met with indifference, it's centrality to the country is beyond question, even if there are those who would deny this fact. 1982 solidified Canada's independence and brought with it a greater, more secure set of freedoms for Canada. Try as hard as he might, Harper can't entirely ignore this reality. 

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