Tuesday, September 20, 2016

Review: Moore on Macfarlane, Constitutional Amendment.

A review of Emmett Macfarlane, ed., Constitutional Amendment in Canada. Toronto: University of Toronto Press, 2016.

One of the essays in this collection starts with the observation that in Canada, “constitutional amendment is not only difficult; it is also exceedingly complicated.” One might almost say the same about this book. No easy reading, but interesting reading on a subject no one had really taken up in this detail, it seems.

Hasn’t the rule on constitutional amendment been straightforward since 1982? Isn’t it just seven-and-fifty, meaning the federal parliament needs the assent of seven provinces representing fifty percent of the provinces? (For a few special cases, unanimity rules: the federal parliament and 100% of the provinces.)

Sure, it’s politically difficult, given the trading-fish-for-rights proclivities of first leaders. You can’t propose anything without dealing on everything. But complicated?

Well, yes, it turns out. Seven-and-fifty ain’t the half of it, according to the lawyers and scholars in this volume.

There is the question of what’s constitutional. The Harper government thought a change in Senate term lengths and appointment procedures could be routine parliamentary business. No, said the Supreme Court, it’s constitutional: 7-and-50, please. (And for abolition, unanimity.)  And on what the Harper government took to be the routine appointment of a new Supreme Court judge, the Supreme Court decided that even a small initiative on how the Supreme Court Act was interpreted became a constitutional matter. The Court has virtually constitutionalized the Supreme Court Act, hitherto simply an act of parliament.

That is, the government may think some things are not constitutional changes, but the Supreme Court may be inclined to say they are. And if it does, well, they are. Will there be implications for Prime Minister Trudeau’s plan to ignore the unwritten rule that one Supreme Court judge must come from Atlantic Canada?  Dennis Baker and Mark Jarvis regret that the scope for “informal constitutional action,” around and about the edges of what is constitutional, may now be close to zero -- and they explore some workarounds they still like. 

Then there is aboriginal affairs. There’s nothing on the subject in Part V of the constitution, the amendment rules. Other parts of the constitution do affirm aboriginal and treaty rights – but could a 7/50 federal-provincial agreement authorize a constitutional amendment undermining those? Well, there is another section asserting that there will be no amendment affecting aboriginal status without a conference in which First Nations would participate. But that’s not in the amendment rules, and doesn’t impose unanimity either. So what prevails?

Then there is Quebec. It, like all the other provinces, had no veto over constitutional amendment in 1982. But in 1986 1996 the federal government agreed not to support any constitutional amendment affecting the provinces unless all five major regions supported it, in effect giving Quebec, British Columbia, Alberta, and Ontario veto power, despite the formal rules in Part V. Somehow the 7/50 rule was being amended, but unilaterally, instead of by Part V’s stipulation of unanimous consent. Was that legal?

These are not all the constitutional complications Macfarlane and friends explore. But ‘nuff said, I think. Constitutional amendment is complicated as well as difficult.  And you need to be a constitutional scholar of meticulous dedication to follow all the ways it is.

One of the things making constitutional change politically difficult is the horse-trading, “fish for rights” tradition, in which a province will refuse consent to a change just so it can hold out for some unrelated perk or pork. But if the others refused to be blackmailed on a single-issue proposal where there is popular consensus, that could be faced down -- if we give up the expectation of mega-constitutional change as in the 1980s and 1990s.

Some constitutional amendments still seem to me uncomplicated (and maybe not even so difficult, once we are ready). Abolishing the monarchy and establishing a Canadian head of state is set down as one of the biggees, requiring not 7/50 but the unanimous consent of Ottawa and all the provinces. Nothing, again, about the First Nations, although they often posit their unique relationship with the crown against the settler governments that are in their faces all the time.

Well, I’m good with unanimous consent on that matter of a Canadian head of state, and would happily include aboriginal consent too. It’s a big important change. It ought to be done seriously. Anyway, the fact that we can abolish the monarch whenever we are ready, while the monarch cannot abolish us at all, nicely sets out the republican realities in which we live. Once we are ready and once we tell the governments we are ready, voila, it should be neither difficult nor complicated.

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