Reforming Canada’s Constitution
Canada is a far different country than in 1867, when the British Parliament enacted our first Constitution. Then, the western provinces did not exist. A strong central government was necessary to begin expanding its reach to the Pacific Ocean. With the maturity of all ten provinces since 1867, the Constitution no longer meets the demands of our 21st century nation. The changes recommended below will not happen in my lifetime. But that is no reason to avoid discussing the kind of a Constitution that would better serve a modern Canada.
Effect of the 1982 amendments
Canadian politicians and others hailed the 1982 amendments to our Constitution as monumental. Many described it as bringing home or repatriating Canada’s Constitution from Britain to Canada. Nothing of the sort happened. The BNA Act and all its amendments, including those of 1982, remain statutes of the British Parliament which it can repeal or amend, with or without Canada’s consent. The only independent right Canada now has is to amend sections of the BNA Act via a new amending formula. Most observers recognize the formula is unworkable. Two particularly embarrassing provisions remain in the BNA Act. One permits the British government to disallow any piece of Canadian federal legislation. The other gives the federal government authority to disallow statutes passed by provincial legislators. While those sections have also fallen into disuse, they too remain a blight on Canada’s independence.
Though not mentioned specifically in the BNA Act, Canada inherited Britain’s system of responsible government. Theoretically, those words stand for three separate but equal branches of government – legislative, executive and judicial. The non-elected executive branch is supposed to be responsible to the elected legislative branch.
Up until 1832, Britain’s executive branch was responsible to the reigning Monarch. After that, it became responsible to the British Parliament – the legislative branch. By 1867, the exact nature of the executive branch’s responsibility to Parliament was still a work in progress. This helps explain why Britain made two fundamental errors with respect to criminal law. First, it gave Canada’s federal Parliament the right to enact criminal law. Second, instead of following principle by having the federal executive administer criminal law, it delegated that responsibility and cost to the disconnected provincial executive branches.
Something similarly unprincipled occurs when the federal executive hands federal taxpayers’ money to the provinces with “no strings attached.” Our system of responsible government means that the federal executive branch should always supervise and control the spending of federal taxpayers’ money. Provincial executive branches who receive this federal money are not responsible to the federal Parliament. Nor are the provinces’ books open to federal Auditors General.
Responsible government and political “conventions”
Canada’s unarticulated system of responsible government gives federal and provincial politicians authority to modify the written and unwritten parts of the BNA Act and federal legislation to suit their convenience. These modifications are called “conventions.” They are not written down. They can be used when convenient, and ignored when not. For example, the Constitution says that a majority of Cabinet has the authority to recommend the appointment of Superior Court judges to the Governor General. However, convention now dictates that Prime Ministers may ignore the Constitution and claim this authority for themselves. Similarly, while federal legislation gives Cabinet the authority to recommend candidates for appointment to the federal courts and Supreme Court of Canada, under a political convention, Prime Ministers have now claimed this authority for themselves.
As conventions are political in nature, they are not subject to judicial review. This creates a huge democratic deficit, since it leaves in one person’s hands the appointment of many, if not all, federally paid judges. As leaders of the party with the most seats in the House of Commons, by other conventions, Prime Ministers control both the legislative and the executive branches of the federal government. None of these gifts of power are mentioned in the 1867 Constitution.
Challenging Canada’s political conventions
Montesquieu once wrote that “[t]here can be no liberty… where the legislative and executive powers are united in the same person or body of magistrates” or, “if the power of judging be not separated from the legislative and executive powers.”
Along the same lines, in 1778, James Madison wrote in the Federalist Papers: “[w]here the whole power of one department [of government] is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.” Undemocratically, Canadian constitutional conventions place both the legislative and executive powers in Prime Ministers.
In 1861, John Stuart Mill similarly wrote about the downfall of a nation when too much power is placed in the hands of one person. The greater the degree of centralism, the weaker a nation becomes. For this reason, progressive democracies accept the decentralization of power.
Regrettably, opposition political parties in Parliament do not seem eager to change any of these conventions. Each opposition party apparently wants to achieve an electoral majority so that its leader can become Prime Minister and govern autocratically. Provincial parties are no different. No law prevents any province from establishing a more democratic form of government than that which exists federally. But, like federal politicians, provincial political parties seek to get their hands on the levers of power so that their leaders can govern autocratically.
Failure of legislators to correct judicial mistakes
Canada’s system of parliamentary government fails its citizens in another way. Democratically elected legislators have a duty to constantly examine non-constitutional appellate court decisions to see if they comply with sound legal principles. If they do not, legislators should correct the defects by way of a statute. For the most part, provincial and federal legislators fail to perform this duty. They may be caught up in the policy surrounding errant constitutional decisions. By using the Notwithstanding Clause, the Charter allows them to override constitutional mistakes made by appellate courts. Political considerations persuade them never to do so; but no law or policy restricts them from correcting appellate court mistakes that have nothing to do with the Constitution.
When there is a real or perceived failure of government, critics often blame Prime Ministers or Premiers because that is where the whole power of government resides. Putting the total blame on them is unfair. Given the complexity of the policy issues with which governments currently deal, no one should expect our First Ministers to provide quick and easy solutions to every problem that occurs during their terms of office. Yet that criticism will never end while Canada has the current dysfunctional, centralistic system of parliamentary government.
A modern Constitution would free Canadians from our present undemocratic and impractical arrangements. A new Constitution would recognize the principle that the closer in proximity that legislators are to the voters, the more responsive will be the laws that they enact. Change will not be easy since it will upset the current power structure. Nonetheless:
1. Canada should convene a Constitutional Assembly that will draft a new Constitution making it independent of any other nation.
2. No one person should rule over more than one of the three branches of government.
3. The political head of the executive branch should be elected by all Canadians and not only by a party leader’s local constituency.
4. Checks and balances should restrain the powers of the legislative, executive and judicial branches of government.
5. Federal governmental powers should be confined to subject matters of national interest, such as international affairs, national defence, currency, etc.
6. Local subject matters such as property and civil rights, fisheries, criminal law, marriage and divorce should come under provincial jurisdiction.
— John C. Book is retired Supreme Court of British Columbia judge, and the author of Boucks Law Blog and Exploding the Myths: An Insider’s Look at Canada’s Justice Systems.