Wednesday, November 02, 2022

History of constitutional amendments UPDATED

The political scientist Emmett Macfarlane has thoughts worth reading on Premier Ford's reckless use of the notwithstanding clause and how we think about the constitution in Canada.

Macfarlane declares at the outset that Ontario's looming declaration that human rights don't apply to people Doug Ford wants to demonize is "the death knell for any coherent defence of the infamous [notwithstanding] clause.

If you never thought there was any coherent defence for it, you should read what he has to say about that.

As initially conceived, it is an entirely defensible constitutional innovation. Canada was the first Westminster-style parliamentary system to constitutionally entrench a bill of rights. A shift from parliamentary sovereignty to constitutional - some would say judicial - supremacy was a momentous shift in power to courts, especially the Supreme Court. Some of the Charter’s framers were rightly concerned about the judiciary having the final say on policies implicated by rights, including progressive premiers worried that a conservative court might wield the Charter to constrain the growth of the welfare state.

With the problematic loyalty oath, the need to replace the monarchy, and now this all needing constitutional fixes, a window may be opening through which to escape from the thirty-year moratorium on discussing revisions to the Constitution Act, 1982.

Macfarlane's essay is one of the first piece on his new Substack, which looks to be worth following.

Updated, same day:  I see Andrew Coyne has a simpler workaround:  provinces abuse notwithstanding; feds apply disallowance.

At first, I think this is crazy. Provinces are sovereign in their fields of responsibility; disallowance is incompatible with federalism.  

But.... disallowance really became problematic because Ottawa abused it. As prime minister, John A. Macdonald declared it should generally be used only when a province brought in legislation that went beyond its powers.  But in the classic test case, Rivers and Streams, Macdonald disallowed Ontario legislation because he judged it "bad policy." What right has Ottawa got to determine whether Ontario policy is good or bad?, Oliver Mowat demanded to know. He took it to court and won. Overturning ultra vires or "bad" legislation was confirmed to be the job of courts, not of other levels of government.  Good thing, too -- (and how the constitution-makers at Quebec in 1864 expected).

But if notwithstanding negates judicial review, maybe the justification for disallowance returns. Say a province "notwithstandings," and Ottawa disallows, judging the provincial use unjustifiable.  Reference to the courts follows, to determine which side is abusing its powers. There's the nut of an interesting constitutional amendment. 

Though: ten of ten provinces would decline to support the amendment.)  Also, a nasty little fed/prov alliance could still suffice to overthrow any constitutional right.

Note that for Coyne, notwithstanding is "the product of some particularly grubby last-minute bargaining" and a blatant invitation to uses like Ford's and Legault's. He has no patience with Macfarlane's "entirely defensible constitutional innovation" if-used-properly explanation.

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