The Constitution

There is, from about two weeks ago, a very interesting article, in the Globe and Mail, by Professor Richard Albert who is the William Stamps Farish Professor of Law at the University of Texas at Austin, a former law clerk for chief justice Beverley McLachlin, and the author of Constitutional Amendments: Making, Breaking, and Changing Constitutions.

Professor Albert reminds us, first, that in 2017, then Quebec Premier “Philippe Couillard proposed a grand idea: His province should take this special occasion finally to sign the Constitution – something it refused to do in 1982, when it was the only partner in Confederation to withhold its consent from the patriation agreement that brought our Constitution home from the United Kingdom … [but] … Prime Minister Justin Trudeau rejected Mr. Couillard’s idea even before the premier had the chance to make his case to Quebec and the country. “We’re not reopening the Constitution,” the Prime Minister declared, putting an end to what Mr. Couillard had hoped would be a genuine dialogue about Quebec’s future in the country.”

Richard Albert is sorry that Premier Couillard backed down but he notes that Jason Kenney, Premier of Alberta is unlikely to do the same, and he thinks that’s a good thing because it may remind Justin Trudeau, and many other Canadians, that the Constitution is not private, federal property. It may seem that way because Pierre Trudeau’s ill-conceived Charter of Rights and Freedoms is so closely identified with him and with the national government ~ partly as a result of Liberal Party propaganda which seems to have convinced many Canadians that the Charter is the Constitution and the Constitution is Piere Trudeau’s property. As Professor Albert says, “A premier does not need the prime minister’s permission to start a national dialogue on constitutional reform,” and, with his proposed referendum on equalization, that might be what Jason Kenney aims to do.

Richard Albert suggests that “if Albertans vote in favour of ending equalization on Oct. 18, 2021 – the date set for the referendum Mr. Kenney promises to hold if his conditions aren’t met – his next move should be to marshal his legislative majority in Alberta to pass a resolution calling for an amendment to the Constitution. And as he pilots his amendment resolution to passage, he should persuade his counterparts in Newfoundland and Labrador, Ontario and Saskatchewan – the provinces most likely to support Alberta’s efforts against equalization – to ratify his amendment resolution. Ottawa quite simply could not ignore amendment resolutions from these four provinces. And other provinces may well eventually come aboard, especially if they become paying, not payee, provinces.

I am on record as being less than thrilled with our Constitution or, for that matter, with any written constitution which, as I explained, tend to be situated in a time and place in the past and, therefore, enshrine in law solutions to problems that, over time, solved themselves. If I had my way we would not have any written constitution … just a few laws that regulate which levels of government are responsible for which things and how the courts function and so on. I would let the wonders of the common law do the rest. Does anyone think that Wales is less “free” than Quebec? Is Britain less free than Canada? Do Britons have fewer rights? The answer to all is, of course, No! But there is no (written) British Constitution … the closest we get is a slim book by Walter Bagehot, written in 1867, which explains how the mix of statutes, the common law, parliamentary and legal conventions and works of authority all make up the British Constitution  which is not written down, anywhere and, consequently, constantly evolves to meet the needs of the people.

But, for better or for worse, we have a written Constitution and, in my opinion, it is in need of revision, probably on a regular basis, say 50 years or so, which means it is overdue for revision. Now, Pierre Trudeau famously and with some reason, complained that in constitutional negotiations some people always wanted to “trade rights for fish” and I’m sure he was both frustrated by that and quite correct in his assessment of the process. As Bismark put it:

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But our Constitution is the supreme law of the land, our gracious Queen may reign, but it, more than Parliament or the courts, rules and it is not the property of the prime minister or of the provincial premiers ~ all of them serve the people. It is our Constitution and we need to have the final say it what it says.

If Jason Kenney can reopen a broad public debate about our Constitution then I say: “Press on, sir!

 

 

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