Friday, 25 April 2014

The Spectre of Mega-constitutional Change

The ink on the Supreme Court of Canada's judgement in the Senate Reference (available here) has barely dried and yet the prognostications that the effort to reform the Senate is dead seem to be legion. As the CBC's Terry Milewski tweeted: "SCOC on Senate reform: forget it. Abolition? Double forget it". That sentiment appears to be common.

The Court has not dealt a blow to reform; rather, it is has dealt a blow to a particular approach to reform. It has, yet again, reaffirmed the federal nature of the country, acknowledged (again) that the provinces are not merely glorified municipalities and subservient to the central government, and, importantly, reminded the Harper government that the Constitution is much more than a few words committed to paper.

Constitutions are not designed to be easily rewritten. Their whole purpose is to embody certain broad principles and rules that are fairly immutable. The kind of change proposed  by the Harper government -- unilateral change on the fly to a federal institution -- is precisely the kind of ad hoc, ideological, partisan and single-minded changes they are designed to prevent. That is, they are designed to prevent a single, transient political faction from fundamentally altering (in the Court's phraseology) the "constitutional architecture" of the country, particularly in the face of opposition.

The Senate is not the plaything of the federal government despite being part of the federal Parliament. It is a an institution of federalism designed to ensure consistent regional representation in contradistinction to representation by population. In short, it is designed to reflect provincial interests (whether or not it does this well, frankly, misses the point). In short, the Court has recognized that to alter a federal institution requires at least some provincial consent. Indeed, in an era in which majority governments are formed with extremely small pluralities, this can act as a check by ensuring that broad consensus is reached.

As an aside: it is worth noting that the Senate was not designed to be a rabidly partisan institution. The power to change the tenor and character of the chamber rests with the Prime Minister via his power of appointment. A PM truly committed to change could easily alter this status quo. The Court noted that consultation from the public is unconstitutional (it alters the character of the chamber by introducing democratic legitimacy). This does not preclude consultation with experts (as is already done, particularly with judges and the Governor General) or with the provinces. The appointment process can be improved without recourse to constitutional amendment.

The Court's ruling does tend to rely heavily on convention as an argument against unilateral change and this no doubt is the legacy of past reference cases (particularly the patriation and secession references). No doubt this seems antithetical to basic understandings of convention. After all, conventions are merely the product of practice and, as such, a government may simply choose to take a different path. Conventions, however, are not that simple and, indeed, some of them are immutable and unalterable.

For example, responsible government is an unwritten component of the constitution, but its status is fundamentally distinct. It is a convention but also represents an entire framework of government and organizing principle and, as such, cannot be expunged simply by practice. To do so would eradicate Westminster parliamentary democracy. Other conventions are equally foundational, such as judicial independence which is equally absent from the text of the Constitution Act. Moreover, not all conventions exist simply because a government alters its practice. Conventions, as customs and norms, may also require recognition. Long held and deeply entrenched principles of federalism and responsible government require wider acceptance to hold power and, importantly, to be legitimate. It is not for a single government to alter them.

The Court's opinion is the product of an amending formula that is deeply problematic. After the Statute of Westminster, Canada would spend fifty years attempting to create an amending formula. Indeed, the failure to come to an agreement after 1926 the results of the Imperial Conference, enacted in statute in 1931, led to an embarrassing state of affairs in which Canada had to seek British permission to alter our Constitution (specific provisions were written into the Statute of Westminster relating to Canada). Successive governments devoted significant time and energy to the problem, but continuously fell short (largely because of Quebec). The amending formula that emerged -- like Confederation itself -- was the imperfect product of compromise. It empowered provinces at the expense of the federal government and set rigid requirements for change (in many cases effectively replicating Quebec's historic claim to a veto).

Yet the failure of subsequent attempts at constitutional change, particularly the disappointment of Meech Lake and Charlottetown, are not solely the product. The amending formula continues to bear the brunt of the blame but this is unwarranted. Yes, the formula is rigid (as constitutions are designed to be), but much of the problem stems from how we (that is, politicians, given cover by the media) approach constitutional change.

There are two dominant narratives/approaches. The first, trotted out almost incessantly, is the "Canadians do not want to reopen the Constitution" trope. For one, I'm not entirely convinced that this is the case (Canadians are so rarely asked for their direct input into the Constitution and, frankly, the Senate case itself indicates that Canadians do want some change). Second, even if this is true, it doesn't matter. The media also reminds us (particularly in minority situations) that "Canadians do not want to go to the polls again", yet they are seldom forced to do so for their own good. Whether or not Canadians wish to open the Constitution is, frankly, irrelevant. Politicians need to make the case for change. Indifference to the status quo is no excuse.

The second narrative is the product of the mega-constitutional approach that had dominated since 1982 and exacerbated by the narrative noted above. This is the "tout est sur la table" approach which sees constitutional change as wholesale and  the product of horse trading. Mega-constitutional change is not impossible  nor futile, but it is time-consuming, complex and difficult. By framing change solely in the context of radical change in which everything is up for grabs, the deck is already firmly stacked against success.

The solution to reform --  of the Senate in particular -- moving forward is to eschew the mega-constitutional approach by identifying a single problem area and limiting the terms of the debate to that. The first step is to formalize a process of constitutional negotiation. The use of First Ministers' and constitutional conferences has all but been abandoned. The Court's ruling indicates that no government can go it alone on this issue. The second step is to firmly agree that the subject of meetings should be limited to particular areas. There is precedent for this. The strengthening of Aboriginal rights in 1983 and the use of bilateral amendments with individual provinces over the past three decades points to the possibilities of limited but important changes.

In constitutional politics there are no quick fixes. The Supreme Court has challenged politicians to work within the confines that Parliament and the legislatures set for themselves thirty years ago. They made their shared bed, not the Court. Moreover, the Court has only slammed the door shut on abolition (as it should) and left the rigorous (but workable) provisions of the 7/50 rules for the rest. There is broad agreement -- from Parliament, the provinces, the media, academics and the people of Canada -- that the Senate status quo is unacceptable. The Supreme Court has provided clarity; the rest is up to the politicians. The question is who will assume the mantle and help lead the country out of the desert of mega-constitutional constitution.

The Rt.Hon Stephen Harper finally gets around to reading the Constitution

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