The Constitution and Our Nation(s)
“Why don’t we appoint an aboriginal justice to the Supreme Court of Canada?” Troy Hunter, a law student at the University of Victoria, posed this question to the panel at the Canadian Constitutional Affairs Conference (CCAC) held January 17-19, 2008 in Québec City. This event was inspired by the 1961 Congrès des affaires canadiennes organized by future notables such as the Rt. Hon. Brian Mulroney and Michael Meighen and attended by the likes of René Lévèsque and Jean Lesage. CCAC 2008 was covered by CPAC, Québec media, and, of course, TheCourt.ca.
The goal of the CCAC was to create a dialogue between politicians, academics, students and Canadian society regarding constitutional affairs. The 1961 conference contributed to the growth of the separatist movement in Quebec. The 2008 CCAC also focused on questions specific to the newly recognized Québecois Nation such as Québec’s future in the Canadian federation.
In particular, although somewhat shocking (to some of us), it was a worthwhile and a unique experience to hear the arguments for a separate Québec constitution as well as the arguments for a separate Québec. In Ontario, it is rare to hear that perspective and many of the Québec delegates were interested in our reactions.
– Pia Hundal, Osgoode Hall CCAC 2008 Student Delegate
Dean Patrick Monahan from Osgoode Hall outlined the current environment of constitutional affairs in Canada during the Challenge Before Us panel. Monahan suggested two new factors prevent a return to the grand era of meg-constitutional reform characterized by the Meech Lake and Charlottetown Accords for 15-20 years: 1) The immediacy of information dissemination via the internet compared to the slow place of constitutional reform 2) Interest of law students focused to International Human Rights. Evidence of this was the fact that Monahan’s talk grabbed headlines in the Québec media over the Parti Québecois proposal for a Québec Constitution: Constitution? Who needs it when there’s Facebook?.
Perhaps the most explosive panel was the RealPolitik of Constitutional Change panel with Bernard Landry, Jean Allaire, Marylou McPhedran, and Eddie Goldenberg. Landry, a former Parti Québecois Premier, described the Canadian constitution as a “straightjacket” and said the duty of the country is to integrate. From her experiences in the women’s movement mobilized for the 1982 Charter negotiations, McPhedran urged delegates to “turn rights on paper into lived rights” particularly the reinstatement of resources for gender equality court challenges. Eddie Goldenberg criticized Landry’s alleged comparison of Pierre Trudeau with Adolf Hitler. This enraged Landry and resulted in a heated exchange reminiscent of the sovereignist-federalist battes during referedums gone by.
The Canadian Constitutional History: various Narratives panel illustrated how the courts have been influenced by various narratives of Canadian history. Desmond Morton, the past Director of the McGill Institute for the Study of Canada, said that provinces were given “trivial” powers in the 1860s such as control of schools and hospitals. However provincial control of Education has today resulted in different constitutional narratives in different regions of the country. Morton also noted the influence of women on rulings of the SCC after the appointment of Bertha Wilson.
In this context Mr. Hunter’s question about appointing an aboriginal SCC justice seems reasonable. However aboriginal issues, such as the status of the First Nations groups in the constitution and institutions of government, were absent from several panels dominated by Québec issues. There was one panel dedicated to aboriginal constitutional law. Another national constitutional concern conspicuously absent was the impact of future environmental legislation on federal – provincial relations.
The environment could pose the next great constitutional battle. Last summer Peter Lougheed, the former Premier of Alberta, made a speech to the Canadian Bar Association that envisaged “a fight over oil-sands development that would be “10 times greater” than the divisive controversy engendered by the NEP [Natonal Energy Program].” The Globe and Mail recently commented that:
Experts such as Mr. Lougheed worry that a heavy environmental levy applied against Alberta industry would cause howls of outrage in the province. And because the environment is a jurisdiction that is shared by the federal and provincial governments, the mother of all constitutional battles over who regulates industry emissions could end up in the Supreme Court of Canada.
– The Globe and Mail, January 26, 2008
The environment is an emotional issue that involves federal-provincial relations, the constitution and the SCC, as well as individual Canadian citizens. It should be at the centre of the next constitutional affairs conference, hopefully sooner than the nearly 50 years that elapsed between the first and second CCAC.