winding its way through the system. This case LA REFORME DE LA CONSTITUTION has now been overtaken by the federal AU CANADA government's reference on Quebec secession.4 The outcome of these cases at by Andrd Tremblay various levels of the judiciary will have (Montr6al: Les Editions Thdmis, 1995) significant and, as yet, incalculable impacts on Canadian constitutional discourse.

Reviewed by Gregory Tardi* It is into this environment that Andre Tremblay's book, entitled La Reforme de la Despite the apparent aversion of a Constitution au Canada,5 was published significant portion of Canada's political class recently. Andr6 Tremblay's credentials as and of its electorate to currently dealing with both an academic and an advisor to constitutional issues,' the constitutional governments on constitutional matters are debate is not only alive in this country, but well-established. He has been a professor at thriving. the Universit6 de Montreal for a number of years and has already published on the topic6 This polemic is fuelled first by necessity: of the Constitution. the state of Canada's constitutional evolution is such that the most fundamental questions La Rrforme de la Constitution au Canada about the country's public life have not been is an extremely useful and timely scholarly resolved, and there is reason to question work. A brief introduction orients the reader whether they may ever be. The debate is also through the fundamental factors at work and driven by timing: we now seem to be in an explains the difficulties of constitutional intermission. On the one hand, the reform inherent to today's Canadian situation. referendum of October 30, 1995 has been The main body of the book deals with the held, and as a result of the deadlock it constitutional reforms process, sets out produced,2 there is an expectation that Quebec's position on the constitution and her another one will be held in the not too distant demands for constitutional reforms, then future. On the other hand, the milestone of covers the federal projects for renewal of the the fifteen-year review of the amending country's constitutional framework. The formula adopted as part of the constitutional analytical text is accompanied by an review of 1982, originally scheduled to be extensive collection of constitutional convened no later than April 17, 1997, was documents, as well as the lists of cases and looming on the horizon, although the federal statutes which are usual in such tomes. government now claims that its obligation in Readers should bear in mind that this is not a this regard has been discharged. Equally book on constitutional law or politics in importantly, public attention is drawn back to general, but specifically on constitutional constitutional matters by litigation. In reform. This distinction not only colours the particular, the action started in the Quebec content of the book but also increases its Superior Court by Guy Bertrand3 and specialized interest. involving every government in Canada, is It is probable that Professor Tremblay intended this book at least in part to be a The views expressed are exclusively those of university textbook. This is not an easy read: the reviewer. the text demands the extreme attention of the I P. Authier & P. Wells, "C-word drives Bouchard from meeting table" The [Montreal] Gazette (22 June 1996). 2 The results were 50.6% for the Yes and 49.4% 4 Reference Re Certain Questions Related to the for the No on a question that was generally Secession of Quebec, Case No. 25506, interpreted as eventually leading to the Supreme Court of Canada. separation of Quebec. (Montreal: Les Editions Thdmis, 1995). 3 Bertrand v. Quebec (A.G.) (1996), 138 D.L.R. 6 Droit Constitutionnel: Principes (Montreal, (4th) 481 (Que. S.C.). Les E-ditions Thdmis, 1993).

1997 Revue d'itudes constitutionnelles 168 Gregory Tardi reader as the lines of evolution in Canadian C'est le Qudbec qui fut le principal constitutional life are meticulously developed instigateur du mouvement de rdforme. and related to each other. Beyond such a ... Depuis la fin de la deuxieme guerre notice to the students who will no doubt pore mondiale, le Qudbec a remis en over this book for years to come, members of question l'organisation de la f&lration a much broader potential audience should canadienne et son fonctionnement ... note the merits of this work. This is by no Depuis lors, le nationalisme qu6becois means a mere recital of constitutional n'a cessd d'dvoluer et de faire resortir projects over the past several decades. un aspect incontestable: le Qudbec Through the wealth of facts, arguments, d6sire pour sa legislature, celle qu'il positions, and proposals that are set out in contrOle, plus de pouvoir afin d'avoir this book, the author accurately portrays the la maitrise de son d6veloppement salient features and the grave difficulties of 6conomique, social et culturel. the permanent search for national consensus7 through constitutionalism, in a country This assertion is in no way intended to encompassing fundamentally divergent minimize the gravity of other influences on conceptions of its origins, of the relative our constitutional deliberations. Both the weight in the body politic of its component regional alienation of the western provinces elements, and of its socio-political destiny. and the desire of the First Nations for greater autonomy are prominently mentioned. The In Tremblay's perspective, the central institutional reforms put forward by Ottawa theme of constitutional reform in Canada is itself are extensively examined. Tremblay the role of Quebec in the Canadian context establishes, however, that the stresses arising and the way that role is expressed is through from Quebec's relations with Canada have the relationship between Quebec and the involved greater stakes than other intra- federal level of government. The analysis Canadian conflicts. Consequently, many more the fundamental based on this perspective is not ideological or ideas and schemes for tendentious, but rather an objective and reform of the federation have percolated from realistic one. that situation than from the others. A measured evaluation of the events of the last While there is some reference to three and a half decades prove him right. historical evolution, the book concentrates on of the period since the initiation by Quebec of The even more significant finding the Quiet Revolution.8 The greatest attention Tremblay's work is that despite the multitude is, rightly, focused on the patriation of 1982, of suggestions and plans for reform, the aspirations of Quebec for renewal of Canada on the Meech proposals of 1987-1990, and 0 on the Charlottetown attempt at reform in in a way suitable to it have never been met: 1991-92. Le pr6sent chapitre fait ressortir que la plupart, sinon la totalit6, des nomb- The first key to understanding reuses revendications formuldes par les Tremblay's view of Canada and its governements qudbecois n'ont eu Constitution is that he sees Quebec as the aucune suite et sont restes lettre force driving the constitutional reform morte. Le nombre meme de ces rev- agenda: 9 endications a sans doute eu un effet d6terminant sur leur sort; leur multiplicit6 et leur diversit6 n'ont gure favoris6 la discussion et 7 The qualifier "national" is used here inits I'acceptation par les partenaires English sense, as pertaining to the overall political unit, Canada. 8 That is, post-1960. 10 Tremblay, supra note 4 at 106. 9 Tremblay, supra note 4 at 7.

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canadiens. De plus, elles reposaient sur economic modernization in the 1960s into des conceptions du ftdtralisme the quasi-homogeneous North American canadien qui n'dtaient pas partagtes environment. par les autres gouvemements. o Quebec wants a realignment of the division This sombre view is reinforced by of powers among levels of government so Tremblay's recounting of the fact that in the that she can achieve not only greater control of her internal affairs last fifty years, only two constitutional than she has previously had, but also so that, at least in conferences, namely those of 1981" and some cases, she can achieve greater control 1983"2 resulted in constitutional amendments. of her economic and social development In neither case was Quebec part of the than some of the other provinces wish for consensus. 13 themselves.

Quebec's position as the force driving " Quebec is set on insuring for herself a veto the agenda and her situation as the so-far regarding Canada's constitutional unrequited partner and/or participant in initiatives. This is her view of her own role Confederation lead the reader to the question as a full and equal participant in the Canadian framework. of substance. How are we to characterize the aspirations which Quebec has reiterated since These demands reflect the traditional the beginning of the Quiet Revolution? In the dichotomy in Canadian constitutional think- light of recent history, but particularly after ing between proponents of the equality of all having read Tremblay's work, the usual form provinces and those, mostly in Quebec, who of the question, namely "What does Quebec espouse the doctrine of two founding nations. want?" seems simplistic to the point of being In Orwellian terms, the Quebec view can be banal. A more appropriate formulation would summarized as being that for some purposes, be "What vision of its constitutional future all provinces are equal, but for other has Quebec evolved?" Indeed, an expanded purposes, one province, namely Quebec, is version of this fundamental question may be more equal than others. "What vision of its constitutional future, in or with Canada, does Quebec hold?" Tremblay traces the evolution of these aspirations, which have now become trad- Notwithstanding the divergent political itional, throughout the period that is the coloration of the various governments of subject of the book's scrutiny. He details how Quebec since 1960, there is a characteristic of each of them matured through position papers historical continuity to Quebec's demands of Quebec governments, platforms of various and hence to her aspirations. On the basis of political parties, reports of commissions of the political evolution of the last thirty-five experts and amending formulas developed on years, these aspirations can best be expressed an inter-governmental basis. as follows: 0 Quebec wants a substantive recognition of Despite the focus of governmental its specificity written into the Constitution, energies on constitutional reform over the last as a response both to the growth of several decades, the inability of the rest of nationalism and to Quebec's sudden socio- Canada to accede to Quebec's demands has resulted in multiple failures. Consequently, we now face continued rigidity in the Constitutional conference of November 1-5, mechanism for constitutional amendment, 1981, which led to the 1982 patriation lack of compromise that could have led to reforms. substantive results in the form of commonly 12 Constitutional conference of March 15-16, accepted constitutional reorganization of the 1983, which resulted inthe adoption of s.35.1 country, and the political poison flowing from of the ConstitutionAct. 13 Tremblay, supra note 4 at 45.

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Quebec's feeling of exclusion since the 1982 could leave them with Ottawa. The reforms. procedural result of such a scheme would be labelled flexibility. The substantive con- Tremblay's book does not only state the sequence could be known as asymmetrical difficulties which Canada's efforts at constit- federalism. To date, such a solution has not utional reform have produced. He also gained favour. Moreover, in the absence of sketches several ways of cutting this Gordian another crisis, it would seem that First knot of our national politics. Ministers' discussions of amendments to the amending formula are now not to be The unavoidable conclusion to which the envisaged. reader is drawn in this book is that the remedy to Canada's constitutional debacles is What then, is the other option besides greater flexibility in the amending formula continued attempt at reform? In the epilogue, and increased decentralization of the powers Tremblay squarely faces the prospect of currently held by the federal authority. Yet separation. Although this part of the book this conclusion must be nuanced in its was written with the scenario of the 1995 application. A problem inherent to the enum- referendum in the future, the author's eration of legislative powers in sections 91 comments are still valid today, bearing in and 92 of the Constitution of 1867 is that the mind the possibility of another popular heads of jurisdiction named in these sections consultation in Quebec. This text shows can only be amended pursuant to the general clearly that Tremblay is a realist in the amending formula of section 38. Tremblay Quebec context. While he does not espouse a would clearly prefer that sections 91 and 92 Yes vote, he leaves no doubt if such were the be amenable to amendment according to the outcome, it would be a direct result of formula of section 43:14 Quebec's inability to convince her interlocutors within Canada of the merits of L'article 43 n'autorise pas, her positions, ever since 1960. In this dvidemrnment, l'utilisation de cette assessment also, he is correct. formule d'amendement pour modifier le partage des comp6tences l6gislatives noteworthy element of this entre le Parlement f6d6ral et les The most provinces. Les articles 91 et 92 de la analysis of the PQ's second demarche toward Loi constitutionnelle de 1867 qui sovereignty is Tremblay's discussion of its traitent de cette question sont legality. This line of argumentation is closely d'application g6ndrale dans tout le related to that being put forward by Guy Canada et ne peuvent donc se prater a Bertrand in his current suit. 5 The author aucun arrangement constitutionnel de concludes that Quebec is bound within the type bilat6ral. Quand on veut modifier existing constitutional and legal framework le partage, c'est Ala formule g6n6rale and that if a statute purported to declare the d'amendement qu'il faut recourir, province sovereign and separate from m~me si la modification ne concerne Canada, that outcome would have to be qu'une seule province. ratified by constitutional amendment using the rules currently in force. Given the If this amendment were to be made to the unlikelihood of such a scenario, Tremblay amending formula, those provinces, such as qualifies the Quebec6 government's 1995 Quebec, which sought to acquire additional initiative as reckless.' legislative powers could do so without tearing asunder Canada's constitutional fabric. Others, which would not desire those powers

'5 See supra note 3. 16 The French word used is "tdmdraire." 14 Tremblay, supra note 4 at 85.

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Given the impasse resulting from our These steps along the path of inability so far to adopt constitutional amend- constitutional evolution are too recent to be ments that satisfy Quebec's aspirations, dealt with in Professor Tremblay's book. where does the country go from here? Since However, the debate on Bill C-1 10 of 1995, the slim federalist result (one can not, in these which eventually became the Act respecting circumstances, write of a victory) in the constitutionalamendments, did benefit from referendum of October 30, 1995, the federal his involvement. During the proceedings of government has adopted an entirely novel the Special Committee of the Senate on Bill approach. Ottawa has had to recognize that C-110, on January 23, 1996, Tremblay its margin of manoeuvre is extremely limited. testified extensively about this legislative On one side it must continue to face a Quebec initiative. government with a sovereignist program, itself elected on the basis of a one point On that occasion, Tremblay addressed 7 plurality in the popular vote. On the other both the purely legal, as well as the political side, it must deal with the population of the aspects of the bill. In an exchange with the other provinces, their governments and the Chairman of the Committee, Conservative media, the majority of them desiring a respite Senator Noel Kinsella, he qualified the bill from further constitutional debates. In this scathingly as a legal artifice or a constit- political environment, the federal government utional froth. In greater detail, he gave the has, in fact, sought a constitutional following legal reasoning:20 accommodation for Quebec mostly through unilateral legislative procedures that, in the Never in the history of the country has formal sense of that expression, are not of a there been talk of a statutory veto right. ... A veto right guaranteed by a simple constitutional nature. federal act, one that can be repealed or amended by a majority of First, in order to satisfy Quebec's hope parliamentarians, is not a veto right. It for a declaration of its distinctiveness, the is a dubious veto right, a pale imitation federal government had the House of at best.... Aside from these fund- Commons adopt a resolution to that effect on amental problems, I question the December 11, 1996.18 legality of the bill. The proposed legislation seeks to add new Second, the realignment of powers components to the amendment between the levels of government is being procedures already set out in the attempted by the novel means of Constitution Act, 1982. This simple administrative arrangements. piece of legislation institutes in an indirect way a veto that should have Third, the federal government has tried been provided for in the Constitution. In its own way, the bill takes the lid off to donate a veto whereby Quebec would be the whole constitutional issue ... I assured a permanent say in constitutional submit that the constitutionality of the issues, by the unprecedented means of a bill is questionable, which adds little to simple federal statute, An Act respecting this initiative's merits, if it has any at constitutionalamendments. 1 9 all.

Tremblay addressed the political aspects 17 In the Quebec general election of September of C- 110 separately, criticizing its timing, the 12, 1994, the popular vote was Parti fact that it would add a yet further layer of qudbecois: 44.7%, Quebec Liberal Party: rigidity on the amendment formula devised in 44.3%, with the remaining 1I% going to the others, including the Action d6mocratique du Quebec. 1 Hansard (11 December 1995) 17537. 20 Proceedings of the Special Committee of the S.C. 1996, c. I, assented February 12, 1996. Senate on Bill C-110 (23 January 1996) at 2:8.

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1982. Most importantly, he criticized the Constitution in subsection 52(2) of the political aspect of the initiative on the ground Constitution Act, 1982. The Act respecting that, once again, it was not a response to constitutionalamendments is at the very least Quebec's aspirations:2 a statement of the federal position and of the federal intent in applying Part V. According Furthermore, the bill does not live up to the expression attributed to Justice to Quebec's expectations. With your Minister Alan Rock, the Act is designed to permission, I would like to touch on Quebec's position which may be bridge the gap between the federal promises somewhat relevant. The bill does not made during the final week of the campaign meet its expectations in that it does not leading up to the 1995 referendum and the deliver what Quebec has been asking ability of the federal government to achieve for or demanding for decades. Need I the entrenchment of the regional veto remind you that what Quebec is formula. Thus, while the unilateral federal demanding is in-depth constitutional nature of the Act may leave doubt as to its reform. It wants its distinctiveness to legal merit, the central government perceives be recognized in the Constitution as it to be politically viable. It purports to well as its role as a major partner in the donate a veto not only to Quebec which has Constitution or in the Canadian traditionally wanted it, but, following the federation. Finally, it has always federal desire to treat other regions of the sought constitutional protection from country amendments that could prove equally, to those other regions as prejudicial to its higher interests. well. Quebec has never demanded or called for this type of technocratic approach In Canada's present political to the problems of defining its environment, it does not seem opportune to intergovernmental relations with the Ottawa to attempt a further round of rest of Canada. As far as the right of constitutional reforms, nor even to try to veto is concerned, Quebec has always amend the amending formula. The wanted its veto to be guaranteed by the Constitution itself, however, dictates that the Constitution and exercised by the amending formula be reviewed by first National Assembly. ministers within fifteen years after its coming into force.22 In order to discharge itself of that This testimony could in effect have been responsibility, the government of Canada the basis for chronologically the next chapter added the issue of the constitutional in Tremblay's book. Despite his advice to the amendment formula to the First Ministers' country, Parliament did adopt this proposal. Conference which focused on economic and social issues on June 20-21, 1996. The fact The federal government does not share that the amending formula was, as the media professor Tremblay's negative view of the plainly recounted, not seriously discussed, constitutional validity of Act. The official should be no surprise upon reading23 the Prime view about it is that it is a sui generis adjunct Minister's plan for the event: to Part V of the ConstitutionAct, 1982. That status would not detract from its constit- The best thing we can do is to remove utional validity but would not ensure its the unproductive deadline to have a constitutionalized nature either. There is constitutional conference by April of agreement that it certainly does not fall into next year. the ambit of the extended definition of the

22 Constitution Act, 1982, s. 49. 23 Address by Prime Minister Jean Chr6tien to Proceedings of the Special Committee of the the Ottawa-Carleton Economic Development Senate on Bill C-I 10 (23 January 1996) at 2:6. Corporation and Le Regroupement des gens This testimony was originally given in French. d'affaires, Ottawa (18 June 1996) at 3.

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academics. Every event forces us to envisage Some people say that we have fulfilled the next step. This is true even of those our legal obligation as a result of the events, such as the 1995 referendum, the Meech and Charlottetown constit- results and outcomes of which may not be utional rounds, others say we have not. immediately perceptible. In the sense that a I don't want to leave it to guesswork. I Constitution is not merely the basic want to make sure that we have instrument of national organization, but also fulfilled our obligation. So I will give First Ministers the opportunity to the expression of the people's political and express themselves and get that legal aspirations, we should take the result of obligation behind us. It is clear that the referendum not as a signal for aband- some premiers don't want a substantive onment, but quite to the contrary, as an discussion on the amending formula at inducement to try again to accommodate the the meeting. That is fine with me. That diverse views expressed in the Canadian discussion will come another time - population. when everyone wants it. That is better than putting the country through a Andr6 Tremblay's book is a most sterile, pointless constitutional exercise worthwhile contribution in developing a now. national understanding of the attempts of our recent path to achieve a national consensus. Given the apparent consensus of First Upon a thorough reading, it can also help us Ministers to dispense with serious constit- in devising newer ways of constitutional utional discussion at present, this treatment accommodation. Beyond the qualities of for reform of the amending formula was the Professor Tremblay's writing as being timely, only step the federal government could take interesting and comprehensive, this book is to in the direction of the goal it had set out for be recommended for a particular reason. La itself in the most recent Speech From the 24 Rdforme de la Constitution au Canada is Throne: written in an interdisciplinary style. Constit- utionalism and constitutional reform are at Action has already been taken to the pinnacle of national public life and are, recognize Quebec as a distinct society therefore, an inextricable blend of law, within Canada and to guarantee that no constitutional change affecting any policy, and politics. In the book, as in the major region of the country will take subject matter itself, the boundaries of each place without the consent of that of these elements are blurred. They are region. The Government supports the woven throughout the text and render the entrenchment of these provisions in the book not only the preserve of students but Constitution. also recommended for all others keen to understand in greater depth the evolution of In the present context, the issue of this most difficult country to govern. constitutional reform in Canada is by no means set aside. In sharp contrast to the mood Gregory Tardi of the electorate and to the superficial Legal Services coverage of the media, further development Elections Canada of our constitutional structures and processes is very much ongoing, because that is one of the imperatives of the conduct of public affairs in this country. No country can live without the formulation of plans by government and the analytical contribution of

24 Hansard (27 February 1996) 5.

1997 Revue d'9tudes constitutionnelles 174 Garth Stevenson

lists on federalism, the Constitution, and THE MORAL FOUNDATIONS OF related topics will appreciate most of these CANADIAN FEDERALISM: chapters. PARADOXES, ACHIEVEMENTS AND TRAGEDIES OF NATIONHOOD Like many recent writers on Canadian politics, La Selva views Canada as by Samuel V. LaSelva fundamentally divided into three societies: (Montreal: McGill-Queen's University Quebec, Aboriginal first nations, and Press, 1996) pp. xv, 264. (predominantly) English-speaking Canada. Although all three presumably existed, after a fashion, in 1867, the political settlement Reviewed by Garth Stevenson devised at that time has ceased to be viable Canadian Government has traditionally under the impact of the new pluralism. The held little interest for political philosophers. Charter, and the untidy process of "patriation" that surrounded its birth, have But the mutual disinterest between these two whetted appetites, including those of Abori- fields of political science has been replaced ginals and the Qudbdcois, for constitutional over the last fifteen years by a significant status and recognition while unleashing a degree of cross-fertilization. The advent of seemingly endless cycle of claim and the Canadian Charter of Rights and Freedoms has contributed to this trend by counterclaim by organized groups and directing attention to the interaction of law subgroups. "Rights" have acquired a sinister and politics, a natural field of mutual interest set of implications that they lacked in the innocent days of Roncarelli and Drybones, for institutionalists and philosophers. The while the Constitution has become a interminable difficulty of squaring the circle symbol-ridden battlefield rather than a set of between Quebec nationalism and Canadian federalism also has stimulated interest in the rules for conducting the nation's business. more philosophical aspects of politics. Although the Aboriginal question is the Finally, like most Canadian trends, this one has an American prototype. The intellectual topic of one chapter in this book and is mentioned in several other chapters, La Selva origins of both the Declaration of Independence and the U.S. Constitution have rightly regards the Quebec versus been a well-cultivated field of study, Anglophone Canada confrontation as the only fundamental, and potentially life-threatening, particularly over the last thirty years. problem of Canadian federalism. This Somewhat more recently, a number of reviewer entirely agrees. Sectionalism, the Canadian scholars have begun to explore multiculturalism, oppressed Aboriginal intellectual origins of the British North minorities, and conflicts over the definition of America Act and the implications that those "rights" are obviously present in the United origins may have for our present States and Australia, yet neither of those constitutional problems. federations endures the perpetual atmosphere Samuel La Selva has been an important of crisis and impending doom that has now pervaded Canadian politics for more than contributor to this literature in recent years, thirty years. As Pierre Trudeau wrote long and it is gratifying to see in print a ago: "French and English are equal in Canada book-length collection of his work. The Moral Foundationsof CanadianFederalism because each of these linguistic groups has includes four chapters (of ten) that were the power to break the country." previously published. The chapters are tied together by some common themes into a La Selva is not among the pessimists who coherent book, but are also sufficiently self- see the partition of Canada as a foregone contained to be read individually. Instructors conclusion. In fact, he argues that the seeking some fresh material for their reading elements of a solution can be found by

Vol. IV, No. 1 Review of ConstitutionalStudies Review of The Moral Foundations 175 reexamining our shared history. Specifically, Even the Grits of Canada West tended to the moral foundations to which the title of the believe - until Oliver Mowat showed them book refers may be found in the political the error of their ways - that the provinces thought of Sir George Etienne Cartier. Cartier should be little more than large is mentioned in all but two of the eleven municipalities. (One of the more intriguing chapters, and La Selva's book is perhaps the might-have-beens of history is to imagine most extended and thoughtful discussion of what Canada might have been like today had his political ideas to appear in our generation. Mowat died in 1873 and Cartier survived into the twentieth century rather than vice-versa.) Cartier is a somewhat neglected figure in Canadian history, in part because he died Cartier had to steer a middle course only six years after Confederation, in part between those French Canadians who feared because his political fortunes and reputation any closer ties with the neighbouring colonies had reached a low point at the time of his and those Anglophone Canadians who death, and in part because he left few papers favoured a more centralized union than to be used by his biographers. No historian is French Canada could possibly accept. On the ever likely to do for his reputation what other great issue of the day - relations Donald Creighton did for that of his ally, between church and state - he also occupied John A. Macdonald. If Canadians remember the middle ground between the ultramontane him at all it is as a somewhat crotchety bleus and the anti-clerical rouges. Most of the Montreal bourgeois who denounced clergy followed Cartier in support of American democracy, was deeply involved in Confederation - an outcome that may now the Pacific scandal, and favoured placing seem inevitable but was far from being so at Parliament in Ottawa because that remote the time - and it was only after his death location would keep it safe from the influence that the ultramontanes took control of French of public opinion. Canadian conservatism, provoking a predictable reaction from militant Protestants. That side of Cartier is certainly authentic: Meanwhile Cartier played a decisive part in it is presented by Parks Canada to its visitors bringing the West into Confederation as a at Cartier's house on Notre Dame Street and counterweight to Liberal and Protestant has been well-documented by Brian Young in Ontario, and in establishing the new bilingual his brief but fascinating biography. Yet as La province of Manitoba (or so he thought) with Selva reminds us, that was not the whole a Constitution based on that of Quebec. story. Whatever his faults, Cartier deserves as much credit for Confederation as anyone else, There is no evidence to suggest that with the possible exception of Macdonald. Cartier was an original political thinker in the same league as Madison, Hamilton or Despite his anti-Americanism, Cartier Jefferson, but he was among the first to espoused federalism - an American recognize that federalism could be invention - with far more enthusiasm than compatible with a British-style parliamentary did most Anglophone Canadians, including monarchy. More significantly, he saw the Macdonald. Macdonald openly admitted his potential for federalism as a means by which preference for a legislative union like that distinct nationalities could coexist within a between England and Scotland in 1707. single state. He did this by distinguishing Anglophones in Montreal and the Eastern between political nationality, meaning shared Townships dreaded the thought of a allegiance to the state and regime, and ethnic French-dominated provincial legislature. The nationality, based on a common culture and Maritimers, judging by their contributions to way of life. Confederation meant the the Quebec Conference, were more interested formation of a new political nationality, but in the design of the Senate than they were in not the disappearance of the French Canadian defining the scope of provincial jurisdiction. nationality. In fact, French Canadians were

1997 Revue d'3tudes constitutionnelles 176 Garth Stevenson persuaded to accept Confederation because the insights of history, philosophy and they believed their language and culture political science in a readable and attractive would be more effectively protected under a package. parliamentary federation than under any Garth Stevenson alternative regime. To Eugene Forsey's Department of Politics question - "Canada: Two Nations or One?" Brock University - Cartier would have replied: "both."

La Selva believes that federal Canada can still be preserved if we rediscover the wisdom of Cartier and accept Quebec's right to be A CHARTERPHOBIC RETHINKING different and to define its relationship with Canada in a different way. He praises Charles OF THE CONSTITUTION* Taylor's espousal of "deep diversity" but is RETHINKING THE CONSTITUTION: critical, as Cartier would have been, of PERSPECTIVES ON CANADIAN support for the fashionable panacea Taylor's CONSTITUTIONAL REFORM, of radical decentralization. A political nationality, more than an ethnic one, requires INTERPRETATION, AND THEORY a central government with some power and by Anthony A. Peacock, ed. (Don Mills, some sense of purpose. Similarly, La Selva Oxford University Press, 1996) takes a cautiously moderate position on Aboriginal self-government, arguing that it is not a panacea and that Aboriginals must Reviewed by Ken Norman retain meaningful ties with the rest of Canada. He is critical of the Charter of Rights and In Rethinking The Constitution,' is to be Freedoms not because of the rights which it found a mixed bag of essays, containing a enshrines - he recognizes the moderating baker's dozen, which argue that Canada has impact of section 1 - but because it implies somehow recently managed to stand that Canadians are a single sovereign people democracy on its head by abandoning formal with a collective will. "liberal constitutionalism" and "reason" itself.2 Who is to blame for this nasty turn of Readers will also find here - under a events? It turns out that at the head of the list new title - a chapter first published in 1983 of the usual elite suspects are "materialist," on the subject of section 94 of the BNA Act. Unlike F.R. Scott, who viewed section 94 as evidence that federalism was considered little This term was coined by Sigurdson in "Left- more than a temporary expedient, La Selva and Right- Wing Charterphobia in Canada: A draws the opposite conclusion. If the consent Critique of the Critics" (1993) 7-8 International Journal of Canadian Studies 96. of the common law provinces was required to For the purposes of this review I employ the harmonize the common law of property and term so as to embrace those who criticize civil rights, a veto for Quebec over other judicial review under the Charter on changes in the distribution of powers must functional grounds as well as ideological ones. logically have been intended. For an example of the former, in Rethinking there are essays by Owen and Pepall arguing Whether or not they agree with all of its that the very nature of the adjudicatory process federalism means that courts just are not up to the task of conclusions, students of Canadian interpreting the Charter. will find this book a thoughtful and A. A. Peacock, ed., (Don Mills: Oxford stimulating contribution to the literature. It University Press, 1996). combines 2 See Peacock's "Introduction" and his "Postscript" on the 1995 Quebec Referendum for a summary of this point.

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"post-materialist" and "feminist" law teachers Trudeau and his minions6 started in motion a whose published voices are said to have process which has led Canadians to "under- dominated in this unhappy abandonment of stand ourselves only through American the faith of "liberal constitutionalism." ideas."7

The chief culprit who, perhaps unwit- The mind boggles! American ideas do tingly, got this dreadful ball rolling a genera- not prevail in Canadian rights talk.' They do tion ago was Pierre Trudeau. In a chapter not resonate in the language of the Charter. entitled "Canada's Court Party," Knopff and Nor do they hold sway in the analysis of the Morton re-work an earlier piece in which they Supreme Court of Canada. What, one might label Trudeau a "unifier" seized with the vain well ask Martin, about the provisions of the hope that the Charterwould serve as "a 'coun- Charterwhich speak to Aboriginal, language, terweight' to the forces of decentralizing equality multicultural and mobility rights? regionalism and provincialism." The other What about the legislative override clause, contributors to Rethinking share with Knopff section 33? and Morton an absence of kind words for Trudeau's rights project save for Forbes. How about the Supreme Court of Canada's reliance upon section 1 to justify In chapter 2, Forbes paints an objective laws restricting expression which is hateful9 picture of Trudeau's moral vision. He argues or pornographic0 ? I note that Stanley Fish in that Trudeau and his CharterProject ought to There's No Such Thing As Free Speech ... be seen as calling upon Canadians to lead the world by embarking on a noble experiment in liberal pluralism grounded in rights. By 6 The two cited by Martin are to be found on the means of the Charter,Trudeau sought to do bench of the Federal Court of Appeal these nothing less than provide Canadians, as days. They are Mark MacGuigan, Trudeau's models for the peoples of all countries, with Minister of Justice, and Barry Strayer, who a set of abstract values and rights which Martin advises is "generally regarded as would function as ties to bind us despite our having played the leading role in drafting the Canada Act, 1982 and its appendices" (ibid. at diversity. We "would have to learn to care 4). and share universally, as true morality 7 ibid. atll. demands, and not just en famille, as comes 8 Take the current debate about tobacco more naturally."' advertising. A couple of years ago the Supreme Court found the Tobacco Products Martin, the chronically Charterphobic Control Act to be constitutionally author of the first essay in Rethinking, has no impermissible due to overbreadth (see RJR - time for any such nation-building rhetoric. MacDonaldInc. v. Canada (Attorney General), [1995] 3 S.C.R. 199). Unlike the Contrary to Forbes, Martin finds "scant American Supreme Court, who would have intellectual or emotional direction" in the talked exclusively about the concept of free 5 Charter. Martin laments the loss of our speech as embodied in the First Amendment, collective identity as Canadians which, if you the Canadian Supreme Court spent its time on can imagine, Trudeau got well under way by s. 1. And, in the ensuing months the political simply changing the name of our written debate has been about s. 1.In late November Constitution! By replacing the British North of 1996, the Federal Government launched a new law curbing tobacco advertising with an America Act with the ConstitutionAct, 1982, announcement by the Minister of Justice that: "The government has carefully tailored the legislation with the benefit of the Supreme Court's guidance, and I am confident it 3 "Canada's Court Party" at 65. respects the Charter of Rights and Freedoms." 4 "Trudeau's Moral Vision" at 34. See, Globe and Mail (2 December 1996) A3. 5 "A Lament for British North America," c. 1. 9 R. v. Keegstra, [1990] 3 S.C.R. 697. at 12. 10 R. v. Butler, [1992] 1 S.C.R. 452.

1997 Revue d'e'tudes constitutionnelles 178 Ken Norman and it's a good thing totd' has recently for appointment to the Council that a complimented "Canadian thinking" with candidate commit herself to the objectives of regard to limiting the expressive "'rights" of the Social Charter. Nedelsky and Scott used hate mongers and pornographers. 2 According human rights tribunals as their model for the to Fish, this analysis by the Supreme Court of Social Rights Council. Manfredi sends his Canada places emphasis on "the principles reader to a footnote citing Flanagan, Knopff that underwrite" Canadian society rather than and Archer's argument that human rights on a reified "free speech" concept as done in tribunals were biased in favour of the American First Amendment doctrine.13 objectives of Human Rights Codes.16 What all this means for Manfredi is that the New The first part of Rethinking concludes Democratic Party, via human rights tribunals with an essay by Manfredi, "On the Virtues and the Social Rights Council, will see their of a Limited Constitution: Why Canadians political agenda implemented by other than Were Right to Reject the Charlottetown electoral means. Accord." Manfredi's argument is that the ball which Trudeau got rolling, leading to the last One gathers that what Nedelsky and couple of abortive rounds of Canadian Scott should have done was to have required Constitutional reform, has shown the Trudeau candidates for the Social Rights Council "to project for what it really is. That is, as a be disinterested participants in the process of mandate for illiberal attempts to fix political defining and allocating social rights."'1 issues of cultural, social, and economic Perhaps one might test this issue by looking injustice by means of constitutional at the role of the courts in Canada's criminal amendments. For Manfredi the darkest hour justice system. Should a candidate for judicial of this project was "the Charlottetown Folly" appointment stand down because she is which saw Bob Rae's "unnecessary and committed to the objectives of the Criminal pernicious" "social charter" notion come Code? Should our courts be peopled only perilously close to fruition. 4 with judges who are truly disinterested in the process of interpreting the Criminal Code? A good deal of the thinking behind the Part II of Rethinking contains seven "social charter" is the focus of Bakan and essays on constitutional interpretation. The Schneiderman's Social Justice and the first essay by Knopff and Morton, "Canada's Constitution:Perspective on a Social Union Court Party," is a recycled version of their for Canada." Manfredi devotes some "The Supreme Court as the Vanguard of the attention to the debates amongst Intelligentsia: The Charter Movement as "progressives" contained between the covers Postmaterialist Politics."' 8 The argument here of this volume. In particular, he critiques is that this "elitist" Court Party, led by law Nedelsky and Scott's proposed Social Rights professors, is deeply anti-democratic and, Council, an institutional alternative to apparently, wanting to have its way with justiciability, for requiring as a qualification Canada's social policy with a little help from their friends on the Supreme Court of Canada. Whether any of the fond hopes of the 1 (New York, Oxford: Oxford University Press, 1994). 12 Ibid. at 104: "Canadian thinking about 16 "On the Virtues of a Limited Constitution" at freedom of expression departs from the line 54 referring to T. Flanagan, R. Knopff, and K. usually taken in the United States in ways that Archer, "Selection Bias in Human Rights bring that country very close to the Tribunals: An Exploratory Study" (1988) 31 Arepagiticaas I have expounded it." Canadian Public Administration 483-500. 13 Ibid. at 105. 17 Ibid. 14 "On the Virtues of a Limited Constitution" at 18 In J. Ajzenstat, ed., Canadian 54. Constitutionalism:1791-1991 (Ottawa: 15 (Ottawa: Carleton University Press, 1992). Canadian Study of Parliament Group, 1992).

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Court Party have come to fruition is not groups." She argues that the only rights addressed by Knopff and Morton." They note worthy of the name are negative rights. She that this question "must be reserved to house-cleans the Charteron this basis. Why 0 another occasion.'Q she makes no mention of two largely "positive rights" portions of the Charter,the It might be noted that such a study will "Democratic Rights" of sections 3 and 4 and not require rocket science. The Court Party, the "Legal Rights" of sections 8 through 14 as Knoppf and Morton conceive it, is remains a mystery. Perhaps, for Selick there committed to radical social transformation in are "good" and "bad" categories of positive the name of equality. What current evidence rights. is there that the Supreme Court of Canada shares this agenda? The answer is that there For example, the first section in the is none. The Equality Trilogy2 of 1995 "Legal Rights" portion of the Charter is leaves no doubt on this matter. section 7. Perhaps because it is in the "bad" category, it gets a good deal of critical Chapter 5 consists of more of the same attention from Selick. Of particular concern "Court Party" - like revelations. In "The for Selick is the section 7 litigation which Language of Rights and the Crisis of the sees members of those pesky "interest Liberal Imagination," Watson decries the groups" seeking to have it interpreted as "revisionist jurisprudence" of the Supreme containing positive rights. The welfare Court in its interpretations of the Charter.For recipient Robert Finlay is a case in point. Watson, "Canada is now under siege from That his arguments did not prevail in the interest groups that seek to constitutionalize Supreme Court of Canada takes no wind from political claims that they could not satisfy Selick's sails. In a remarkable piece of under the give and take of the political nonsense Selick asserts:24 system."22 Canada under siege by the disadvantaged. What a concept! My judgment Other cases making arguments similar is that we can sleep soundly in the citadel for to Mr. Finlay's and explicitly relying on as long as we care to. section 7 of the Charter are still working their way through the courts. Chapter 6, "Rights and Wrongs in the Their progress was temporarily Canadian Charter," is authored by Selick who hampered by the termination of the federal Court shares Watson's concerns about "interest Challenges Program in 1992, which funded groups wishing to bring Charter challenges to court. However, the Chretien government 19 "Canada's Court Party" at 87. In footnote 80, reinstated the program in late 1994, Knopff and Morton acknowledge that, in the earmarking $2.75 million per year for first published version of this essay, "The it. Supreme Court as the Vanguard of the Intelligentsia" they "blurred" the difference between the Court Party's agenda and the Selick seems not to be the sort of person to Supreme Court's achievements. Though, it allow the facts to stand in the way of an must be said that the clear implication of the argument. But, for the record, the facts are first piece, to this reader, was that the Court that the federal Court Challenges Program Party was, indeed, having its way with the has never had anything to do with section 7. Supreme Court. 20 Ibid. at 80. The program had its genesis in 1978 21 Egan v. Canada,[1995] 2 S.C.R. 513; Miron v. Trudel, [1995] 2 S.C.R. 418; and Thibadeau v. Canada (Minister of National 23 Finlay v.Canada (Minister of Finance), Revenue), [1995] 2 S.C.R. 627. [1993] 1 S.C.R. 1080. 22 "The Language of Rights and the Crisis of the 24 "Rights and Wrongs in the Canadian Charter" Liberal Imagination" at 89. at 110.

1997 Revue d'dtudes constitutionnelles 180 Ken Norman dedicated solely to funding minority-language Chapters 8 and 9 by Pepall and Owen, cases. With the advent of the equality respectively, analyze some Supreme Court of provisions of the Charterin 1985, it was then Canada cases which demonstrate, for them, expanded to deal with equality cases. It has that the Court is just not competent to never permitted funding of section 7 cases.25 perform the oracular tasks which it chooses to take on under the Charter. In Chapter 10 In Chapter 7, "Strange Brew: Reid proposes that a more democratic curb Tocqueville, Rights, and the Technology of on the abuses of judicial review under the Equality," Peacock advances three critiques Charterwould be referenda placed on ballots of "equal rights talk." First, he draws from on the occasion of federal and provincial Knopffs Human Rights and Social elections. This process would have the added Technology' in contending that the "true" advantage of providing the judges with a meaning of rights is abused by those who use pretty good fix on just where to draw the equality rights to pursue a political agenda of "reasonable limits in a free and democratic redistributive justice. Second, to avoid this society" line under section 1L" mess, with which we must now live in Canada given the Supreme Court's espousal of Part III of Rethinking is entitled "substantive equality" in Andrews,27 one must "Constitutional Theory." In Chapter 11 return to the "true" meaning of rights by Cooper contends that Canada no longer has a assuming the existence of natural rights.28 soul. There is no body politic. Canadians Drawing from Glendon's Rights Talk, have lost their way. Cooper cites the loss of Peacock argues that "Reason," not the our symbolic ties to Britain as being the main expediency of the day, must serve as the reason for this.3 This argument assumes that foundation for rights. Third, in a section once "we" were a sovereign people. Or, at entitled "Tocqueville and the problem of least, we had the right stuff to become such. tutelary democracy," Peacock argues that Where Francophones fit into this "we" is a "substantive equality" amounts to puzzle which Cooper does not deign to solve Tocequeville's "depraved equality." For for his reader. Chapter 12 by Darby and Tocequeville, democrats yearn for equality Emberley, pursues the thesis that Canadians far more than for liberty. Of course, they will have become lost and are wandering beneath abyss. seek equality in liberty but if it doesn't come29 a starless sky nearer and nearer to the their way, the will still seek it in slavery! The argument here is that liberal Peacock argues that Canadians have gone constitutionalism is no longer guided by some ways down this dangerous path in our theories of nature but is rather in the hands of endless reliance on all branches of the "political correctness" movement whose government to secure equality for all. father, we are reminded, was Chairman Mao.32 More of the same is served up in Chapter 13 by Martin. This piece has little to say about the Constitution. Though, I do

25 See K. Marshall, "Should the Court 30 Reid's appetite for referenda might flow from Challenges Program Be Terminated?: The Relevance of the Judicial Review Debate" his role as senior researcher for the (1995) 4 Windsor Review of Legal and Social parliamentary caucus of the Reform Party of Issues 157. Canada. See "Penumbras for the People: 26 Human Rights and Social Technology: The Placing Judicial Supremacy Under Popular New War on Discrimination(Ottawa: Carleton Control" at 278. See University Press, 1990). "'Political Correctness' and the 27 [1989] 1 S.C.R. 143. Constitution: Nature and Convention Re- 28 Rights Talk- The Impoverishment of Political examined" at 228. Discourse(New York: Free Press, 1991). 32 "Theoretical Perspectives on Constitutional 29 "Strange Brew" at 139. Reform in Canada" at 246.

Vol. IV, No. 1 Review of ConstitutionalStudies Review of Rethinking The Constitution 181 Review of Rethinking The Constitution 181 grant that it is mentioned at both ends of an project on their behalf. Dworkin's democracy essay about how the new orthodoxy of under the rights thesis:36 relativism, victimology, politicization, and cynicism has corrupted social science and ... commands that no one be left out, public polity review in Canada. that we are all in politics together for better or worse, that no one may be Rethinking concludes with a postscript sacrificed, like wounded left on the by Peacock on "The 1995 Quebec battlefield, to the crusade for justice Referendum, Liberal Constitutionalism, and overall. the Future of Canada." Peacock argues that, Rorty likewise argues for rights as instruments to build a civil society with space by practising "identity politics," Canada has 37 removed one of the comer stones on which for all humans to flourish. Unfortunately, neither Dworkin nor Rorty are challenged liberal constitutionalism was built in the first 3 place. After all, the old "identity politics" of directly in Rethinking." religious groups was what liberal constitutionalism sought mainly to overcome. Further, the prescription authored by The new "identity politics" of culture has led Dworkin and Rorty seems to fit the practices us to that ugly referendum night when of all those who are struggling against social Premier Parizeau saw fit to blame the PQ's injustices. Steiner and Alston note in their 33 recent book, InternationalHuman Rights in loss on "money and the ethnic vote." 39 Peacock draws from George Grant's Lament Context.- Law, Politics,Morals, that "human for a Nation and Barbara Amiel in The Wall rights ideals deeply inform both the practice Street Journal, among others.34 One almost and the theory of international law and expects a reference to Lord of The Flies! politics" and refer to them as a "lens through which to see the world, a universal discourse, In the end, Rethinking leaves the reader a subject in their own right as well as a vital unsatisfied. Surely, what is called for is more component of many others, a potent rhetoric than a backward look, through the lens of a and aspiration." The aspirational element is particular set of democratic values captured by Williams' contention that "the condemning the positivization of rights in disenfranchised ... experience and express basic laws. The reader is offered critiques of their disempowerment as nothing more or rights from both the right and the left, but little vision. In the "rights free" democracies to which the authors aspire, no light is shed on just where the disadvantaged would stand. Manwaring has recently expressed similar 36 Dworkin, Law's Empire (Cambridge: Harvard frustration in reviewing Hutchinson's Waiting 35 University Press, 1986) at 213. For Coraf: A Critique of Law and Rights. 3 Rorty, Contingency, Solidarityand Irony (Cambridge: Cambridge University Press, It is clear that contemporary political 1985) c. 3. This point is relied upon by philosophers who favour rights do have a Manwaring, supra note 34 at 388. vision which include the disadvantaged. They 38 Dworkin is at least noticed once. In view rights as enhancing the democratic "Penumbras for the People: Placing Judicial Supremacy under Popular Control," Reid devotes a paragraph to Dworkin's "pro- judiciary" views contenting himself with 33 "Postscript" at 274. sending his reader to Mandel's The Charterof 34 Ibid. at 275. Rights and the Legalizationof Politics 35 (Toronto: University of Toronto Press, 1995) (Toronto: Thomson Educational Publishing, as reviewed by J. A. Manwaring "Waiting for 1989) with the comment that "Mandel does Democracy - Allan Hutchinson's Programme not support them" (at 190). for Progressive Politics: A Review Essay" 3 (Oxford: Clarendon Press, 1996). (1995) 27 Ottawa Law Rev. 375. 40 "Preface" ibid. at vi.

1997 Revue d'etudes constitutionnelles 182 Ken Norman less than the denial of rights."'" Other than a foundation for a new pluralist society in a brief reference by Knopff and Morton to the deeply divided country a step further by disadvantaged as "Charter Canadians" (Alan adding justiciable social, economic, and Cairns' phrase) as a constituency within the cultural rights to a list of fundamental nefarious "Court Party," Rethinking leaves freedoms and rights which bears quite a one wondering what the authors' critique of resemblance to Canada's Charter.However, "human rights talk" on the part of the world's Devenish notes that it will take more than disadvantaged peoples would sound like if mere enactment of the final Constitution in they were sympathetically to address their Cape Town next spring:" plight.42 For the Bill of Rights to be effectively And, it might be noted that, these days, implemented, a rights culture will have "human rights talk" is no longer just for to be carefully nurtured by, among minorities. It is being taken up by majorities others, the Government of National as well. Some regard ought to have been paid Unity, the media, the churches and the legal profession. by the authors in Rethinking to the current in this world faced by new challenges In light of the essays in Rethinking, Devenish regimes intent on building civil democratic might well have added "the academy" to his societies. One wonders how the authors of list of South African fields which demand Rethinking would deal with the manifest fact husbandry if a rights culture is to take root. that these emerging democracies, from those in the former Soviet system to South Africa, Ken Norman see constitutional bills of equal rights as vital College of Law tools in this endeavour, Tocqueville 43 University of Saskatchewan notwithstanding?

The case of South Africa is especially relevant. Mandela has taken Trudeau's project of using entrenched rights to build a EMERGING REPUBLICS AND COLLAPSING FEDERATIONS

41 P. J. Williams, "Alchemical Notes: A FEDERAL REPUBLIC: Reconstructing Ideals From Deconstructed AUSTRALIA'S CONSTITUTIONAL Rights" (1987) 22 Harv. Civil Rights-Civil SYSTEM OF GOVERNMENT Liberties Law Rev. 401 at 405. Manwaing, supra, note 34 at 380, makes a related point in by Brian Galligan (Cambridge: his critique of Hutchinson's Waiting for Coraf Cambridge University Press, 1995) asserting "this book does not address and grapple with the concrete experience of women, minorities, traditionally excluded Reviewed by John Goldring groups or activists who work in the various movements for social change." 42 In "Strange Brew: Tocqueville, Rights and the Canada has recently experienced a Technology of Equality," Peacock speaks to significant constitutional crisis which could the equality rights claims of the mean the end of its federal system - indeed, disenfranchised by adopting Tocqueville's dire the end of its existence as a nation. This crisis warning in Democracy in America, that this is the end product of a history of regional and sort of "equality" is the most formidable peril communal difference, leading to an that the future holds for the democratic exploitation of distance and difference by project. See G. E. Devenish, "Human Rights in a Divided Society" in C. Gearty & Tomkins, Understanding Human Rights (London & New York: Mansell, 1996) c. 4 at 60. 44 Ibid. at 86.

Vol. IV, No. 1 Review of ConstitutionalStudies Review of A FederalRepublic 183 demagogic politicians. Today it manifests appears artificial and does not assist in itself in a communication failure of grand explaining the difficulties of Australian proportion, between regions and communities federal politics and constitutional law. that are significantly different, united by geography and history rather than economy Politics and constitutional law are two or culture. A form of federation is essential if sides of the one coin, and neither is the country is to survive. unaffected by personal values. I am a lawyer, rather than a political scientist, and have been Australia, the most comparable a member of the Australian Labor Party (in federation, had a real constitutional crisis this book cast largely in the role of villain) twenty years ago, but has survived as a state for over twenty years. I joined that party and which is unitary except in legal and still belong because I believe that constitutional respects. In recent years a "majoritarian democracy"- the recurrent "debate" about whether or not the nation boo-word in this book - with all its failings, should become a republic, rather than a is a better political system than anything else, monarchy, has been invented by politicians to certainly than anything Galligan argues for in divert attention from the real political issues this book. - a declining economy, and an abandonment of national responsibility by politicians of all My reading of history and politics is that hues. federation is a structure of government adopted, not for any positive values or Brian Galligan has established himself as theoretical virtue (in my view it lacks either), a political scientist with a sound but because it is the only acceptable understanding of the legal niceties of compromise for each of the federating units. constitutional structures. His most recent The main motivation for federating is not the work, A Federal Republic: Australia's establishment of checks and balances on ConstitutionalSystem of Government,' aims, power - that is an ex post facto justification he says, to change the ways Australians think - but rather because it ensures the about their Constitution. He certainly sets out preservation of institutions in which the to slaughter some sacred cows, but he has not "fathers" of federation had a vested interest, convinced me to change the way I have and to which they could return if federation thought about my Constitution for the twenty did not yield for them the fruits they had years I have been teaching about it. The hoped for. The delegates to the Constitutional book's cutting edge is honed by Galligan's conventions were, to a man - no women, of broad knowledge of Australian (and course - all prominent colonial politicians. Canadian - his Ph.D. is from the University The same was true of the fathers of American of Toronto) politics, law, and history. and Canadian federalism. However, for some years before Galligan took up his present position he did work in a Today, the defenders of Australian centre for federalism, and the views he federalism usually have a vested interest in expresses now seem far stronger in favour of the existing structures. They tend to be State federalism than they did previously. politicians or public servants. Even businesses, which have good reason to favour The result is provocative, but not federation because the States, being smaller, convincing. It contains some excellent detail, are more easily manipulated, now see the woven into a fabric which becomes tangled in benefits of a national political structure to its attempt to establish a theory. That theory serve a national economy, rather than a series of small units, which tend to be more influenced by populism and may occasionally (Cambridge: Cambridge University Press, frustrate business on that score. Nevertheless, 1995). the conservative political groups, which tend

1997 Revue d'itudes constitutionnelles 184 John Goldring to be drawn from, sympathetic to, and divided in a rather peculiar way, ultimately subsidised by business/employers, are control the constitutional structure because of reluctant to appear too centralist: until things the requirement that they approve any change they still need to wrest favours from changes by vote in a referendum. This State politicians and bureaucrats as well. argument is acceptable both to political and constitutional theorists, so long as It is true that Australian voters on many "sovereignty" is not taken to refer to occasions have rejected referendum proposals day-to-day exercises of political power. If a for constitutional changes which would republic is a polity in which sovereignty increase the relative power of the Federal resides in the people, then Australia clearly is government, but they have rejected virtually a republic. The fact that the constitutional every referendum proposal for constitutional structure was approved by a majority of the change. Like the people of most Western voters (male voters - only in South Australia democracies, they are cynical about did women vote in the federation referendum) government, and the century of Australian adds weight, as it always has, to the notion of nationhood has been a century of relative popular political, if not necessarily legal, prosperity for the majority of Australians. sovereignty in Australia. Galligan points out that in Canada, the founders did not want The main contemporary justification for democracy, sought actively to exclude the federation is totally pragmatic. Though a people from the federation process, and federal system is inefficient, costly, and succeeded in doing so until the 1980s, when frustrating for virtually all interest groups the people solidly rejected the Charlottetown most of the time, it allows disparate and Accord which the political leaders had otherwise discordant groups to coexist. negotiated.

A Federal Republic does present some His argument is weakest in the insistence new ways of looking at federalism, though that the Australian republic is federal by the evidence presented does not support all design as well as by necessity. Galligan Galligan's arguments. Galligan's thesis is that regards the fact that it is federal as having an Australia is not a constitutional monarchy, almost supernatural or metaphysical influence but rather a federal republic in which the on the nature of the polity. people are sovereign. With much of this - all but the 'federal' element - it is easy to Here the book's themes would have more agree. He is quite right to argue that, in application in Canada than to Australia. practice and in legal terms, the monarch, in Australia is now a homogeneous, if the person of the Queen of England or her multicultural, nation. More than seventy-five successors, is quite irrelevant to Australian per cent of the population lives in cities and government. It is almost trite to point out that, large towns. They speak the same language, since long before the Australia Acts of 1986 watch the same television stations, movies removed any legal doubts, any of the residual and videos; they read newspapers controlled powers of the monarch in Australia would be by the same media monopolies, shop in stores exercised in the name of the Vice-regal owned by the same national chains for representatives with, and normally in products manufactured and processed by the accordance with, the advice of the State or same national producers. In virtually every Commonwealth government involved. The area, markets are national or local, rather than same argument is now true of Canada. State-based. Australians enjoy the same recreations: local brands of beer and Galligan is also on strong ground in ice-cream are things of the past. Except for arguing that in the Australian polity, at least football, where there is a sharp regional at the Commonwealth level, the people are division between the North-East and the sovereign, since the people, electorally South-West, they enjoy the same sports and

Vol. IV, No. 1 Review of ConstitutionalStudies Review of A FederalRepublic 185 recreation. Urban society is increasingly a cause of resentment and bitterness in multicultural, and Aboriginal Australians, Quebec, because Qurb6cois feel that the who are now recognised by law and by urban Constitution belongs only to English society, are an important, if numerically Canadians. A proportion of Anglophone small, part. Their constitutional role, as yet, is Canadians distrusted the attempted less developed than that of their Canadian compromises reached by the politicians at counterparts. Meech Lake (which Qurb6cois, generally, supported) and Charlottetown, and this The divisions in Australia are between continues to colour their attitudes. This the city and the bush, between the rich and makes federation more imperative. the poor, not regional, as they are in Canada. Galligan asserts several times that Australians Federation exists in Australia, and it identify with their States and look to State works relatively well. Australians have made governments for the satisfaction of their it work and, led by the High Court, have used political needs, but presents little evidence in it pragmatically. Although it appears on paper support of these assertions. to be a far more decentralised federation than Canada, the expression of the respective In 1989, Bruce Hodgins and his legislative powers of the Commonwealth and colleagues asserted that in Australia, State Governments as concurrent, rather than divisions traditionally have been based on coordinate, has meant that there are no class: in Canada they have been based on legislative gaps. If legislative action is region.2 That remains true, and is growing necessary, it can be taken, though with more so. Galligan notes Geoffrey Sawer's difficulty. This is not always the case in comment that federalism works best in a Canada. stable society of squares, rather than in a society with a volatile element. Galligan Canada was intended by its founders, identifies Quebec, which is readily especially Sir John A MacDonald, to be identifiable because of the obvious highly centralised: Australia was intended by differences of language and culture, as the its founders to be decentralised. Courts have volatile element in Canada but the Maritimes played an essential role in this strange and the Western provinces have their own reversal and have been criticised for it. The volatility and distinct regional interests. Privy Council misinterpreted the Canadian Australia may not be as "square" as Canada, Constitution, which included mutually but there is no element corresponding to exclusive lists of central and provincial Quebec. powers, to ensure that legislative power was divided into watertight compartments - Many of Canada's constitutional provinces could not encroach upon the difficulties flow from the exclusion of the rightful domain of the Centre, and vice versa. people from the Constitution-making process. In Australia, there was an initial burst of The 1982 arrangements for amendment of the enthusiasm and implication of constitutional Constitution, which appear to bring the myths as doctrine, by a majority of the first people of the several provinces more directly justices of the High Court, who had been into the Constitution-making process, are still active at the constitutional conventions. After twenty years, the High Court came to be constituted by lawyers steeped in the 2 B.W. Hodgins, J.S. Eddy, S., S.D. Grant, doctrines of equity and commercial law, and J. Struthers, eds., Federalismin Canada accustomed to construing documents literally. and Australia: HistoricalPerspectives, Statutes and Constitutions were no different. 1920-1988 (Peterborough: Frost Centre for Canadian Heritage and Development Studies, 1989).

1997 Revue d'6tudes constitutionnelles 186 John Goldring

In the Engineers' case,3 Sir Isaac Isaacs, though they have recently become concerned in the majority on this issue in the High Court with the use of the external affairs power to for the first time, was able to fulfil the implement treaties. The Canadian provinces prophecies he had made at the constitutional have always had far greater powers, but seem conventions. As a delegate at the perennially less content. Nevertheless, the Constitutional conventions, he had failure of Canadian polities to find a way of unsuccessfully urged the delegates to draft dealing appropriately with the growing the Constitution with precision because it internationalisation of affairs is a problem for would be interpreted by lawyers (a point Canada. Galligan expounds as well as has been done to date). As a judge, he acted precisely in the Galligan has contributed some highly way that he had predicted a judge would act. original ideas on fiscal balance (increasingly critical since the High Court decision in Ha v. The consequence was an expansion of NSW),' where, as on the role of the Court, he the scope of federal powers, at the expense of is at his best. He is weakest in his the States. This expansion was not without interpretation of the intentions of the limits, but probably enabled Australia to founders, the effect of the Australian Labor survive without greater political disruption; Party, and on the role of the Senate. This is central power has been essential to also particularly important when comparing Australia's development and ability to cope Australia with Canada. with the pressures of modern social and economic pressures. The Australian Senate is chosen by the people, with the States and Territories as Canada is certainly a far more electorates, each State electing an equal decentralised federation than Australia. number of senators by a proportional Because of the strong regional differences, representation system, regardless of the Canadian politics probably could not have relative populations of the States. Except in survived the degree of centralization of minor ways, the powers of the Senate and the power flowing from the Australian High House of Representatives are equal. This was Court's decisions, especially those agreeing the "bottom line" for the smaller colonies at to the centralization of income taxation, the the constitutional conventions. Without it, broad and artificial construction of the term there would have been no federation. It is "excise" in section 90 in such a way as to difficult to see how, in face of the evidence, preclude the States from imposing most taxes Galligan argues that the Australian Senate on commodities, and to the expansive scope should not be seen as a States' Chamber. of the conditions that may be attached by the Further, because it is not appointed, but Commonwealth to grants (transfer payments) elected by the people, it is "democratic." to the States. The greatest obstacle to the This, though literally true, seems to stretch effective working of the Australian system the meaning of "democracy" unduly. has been "vertical fiscal imbalance" - the fact that the Commonwealth raises the The Australian Labor Party (ALP) has greatest proportion of revenue, but the States traditionally been suspicious of the Australian spend it. Senate because of its anti-democratic (in the accepted sense, not Galligan's use of that Generally, however, the Australian States expression) nature. It was intended as a body are content to act in the areas left to them, that would curb any excesses of power, favoured by the peoples of the more populous States, but resisted by the more conservative, 3 Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920), 28 C.L.R. 129. 4 Unreported, 5 August 1997 (Aust. H.C.).

Vol. IV, No. I Review of ConstitutionalStudies Review of A FederalRepublic 187 smaller States. Labor at first opposed Country Party as "one sheep, one vote." federation, because it considered it a device Thus, to describe as "democratic" a senate to thwart the progressive legislation which with equal representation of the States in a the party had enacted after gaining nation like Australia, with a small number of government in some colonies. However, it States, each of which differs in population, is soon found that federal legislation was a stretching the expression (true though it is more potent tool for social change than the that the Senators are chosen directly by the uneven State legislation, and its official people of the States, as the Constitution policy soon reflected its desire to abolish the requires). Senate. Only recently, as the Party has abandoned many of its former rather The greatest problem of the Australian doctrinaire socialist policies, and become a system has been the reconciliation of far less politically radical organization, has its responsible government with federalism. opposition to the Senate and the States Galligan acknowledges this, and makes some diminished. Ironically, the Party itself has a excellent points about the way in which the federal structure, and from time to time practical problems were resolved, though he produces charismatic State leaders and resorts to a theoretical position which seems organizers who are more effective than their artificial and unreal when he suggests that federal counterparts. Galligan capitalises on this conflict was intended by the founders. If this irony. However, his portrayal of the ALP it is possible to divine the founders' intention, as a party which has distorted federal ideas is which seems unlikely, the best guess is that not supported by the evidence. they were distrustful of democratic influences, especially the nascent Labor The Australian Senate is at least elected party, and deliberately constructed an unclear by the people. However, it rankles that and confusing system to allow the lawyers an Tasmania, with an population of about opportunity to frustrate democratic measures 350,000, elects twelve senators, as does New which might seem too radical. South Wales, with a population more than ten times as large. Galligan argues that, if we The tension between representative assume that representative democracy does government and federation was, until 1975, not equate with majoritarian democracy, then resolved through parliamentary convention, the Senate should be seen as equally but in 1975 the lawyers triumphed, and most representative with the House of political scientists acknowledge this. The Representatives, though the electorate is predominance of the lawyers was the cause of divided differently. This appears to be the crisis of 1975, when the twisting the meaning of words more even Governor-General (a former Chief Justice of than economists are wont to do, and emulates New South Wales) dismissed a government Humpty Dumpty. with a majority in the House of Representatives, because the Senate delayed In Australia, the greatest travesties of its appropriation bills. In strictly legal terms, democracy have resulted from an there was no doubt that this course was abandonment of equality of representation, permissible, though it flew in the face of such as the notorious occasion when the convention. It is therefore rather strange to Country Party in Queensland was elected to find that Galligan asserts that Australian office with only nineteen per cent of the political scientists have largely ignored the popular vote - because some urban Constitution. While I am not as familiar with electorates contained up to five times the the political science literature as Galligan, my number of voters than rural electorates, in impression is rather different. The which the Country Party's strength lay. The Constitution and the federal system are late F.M. Daly M.P. was only half facetious central to much of the study of Australian when he described the electoral policy of the politics, if not since the publication of

1997 Revue d'etudes constitutionnelles 188 John Goldring

Geoffrey Sawer's seminal work on Australian Court of Australia, though, until about 1940, FederalPolitics and Law,' then at least since the Privy Council probably had a greater November 11, 1975. influence on Canadian federalism than the High Court ever has had on the Australian Amendment of the Constitution has been counterpart. Galligan is at his best when a major difficulty in Canadian politics and dealing with the court and its influence. law. As in Australia, for many years convention provided a pragmatic solution. In Australia lacks an entrenched bill of the early 1980s, Canadian Prime Minister rights corresponding to the CanadianCharter Pierre Trudeau also departed from of Rights and Freedoms, but recent decisions convention when he secured the amendment of the High Court which "imply" certain of the Canadian Constitution without the rights from the text of the Constitution have agreement of Quebec. That move lies at the been seen as an attempt to emulate a bill. heart of Canada's current difficulties. In both Galligan asserts that these decisions are cases legal literalism has struck at the heart of particularly important, and in this he is right, the system. though their effect may not be as widespread as he claims. He seems to support the court's In 1970, the differences between the action, and this is consistent with his Canadian provinces were deep, but not criticisms of the principle established in the life-threatening. The assertion by demagogic Engineers' case, that the text of the Quebec politicians of a right to French Constitution is to be read as a legal language and culture has created a resistance document, free from any implications in Anglophone Canada, exploited by equally plucked by the judges from their knowledge demagogic politicians in the West and the of United States constitutional law when it Maritimes. Rather than reconciling suited them - as it did for the majority differences between Canadians, the result of between 1904 and 1920. The late Justice the rhetoric has been to drive the participants Murphy, who criticised every attempt to keep farther apart, so that the claims of the the pre-Engineers' ghosts walking, did, quite provinces for governmental powers grow, and inconsistently, attempt to make such drive the federation further apart. Perhaps the implications. Until his death, he was alone. adherence by Canada to the NAFTA makes Ten years later his views, to some extent, the whole question academic, because all of have become those of the majority. Canada may become, whether federated or divided, a mere appendage or series of While there are dangers in majoritarian appendages of the United States. But if democracy, and although the High Court of Canada is to survive at all, the regional and Australia is surely the outstanding cultural differences have been fanned by English-speaking judicial tribunal in the demagoguery into such an inferno that world during the current decade, democrats federation, and decentralised federation at should have some concern about what a less that, seems the only way ahead. These enlightened judiciary might imply from the differences do not exist, have never existed, constitutional text into the body of and have no basis in Australia. constitutional law. One must ask, in the light of some recent Canadian decisions involving The Supreme Court of Canada has not the Charter,if questions ought not also to be had the same impact on politics as the High asked about the judicial technique of the Supreme Court of Canada.

1901-1929, (Melbourne: Melbourne The questions Galligan raises are good: the answers less satisfying. The interrelation University Press, 1956); 1929-1949, (Melbourne: Melbourne University Press, of politics and constitutional law is important 1963). in both Canada and Australia, and while both

Vol. IV, No. 1 Review of ConstitutionalStudies Review of A FederalRepublic 189 remain federal nations, these questions must be asked. My guess is that Canada as we know it will cease to exist as a federation, and that Australia will become a defacto unitary State before it formally becomes a republic. At the moment we have two federal constitutional monarchies, and we need to think seriously about how they operate. Galligan has provided some useful factual material and raised some interesting issues, even if some of his less plausible arguments fall flat, and he fails to achieve his objective of changing the way we think about the Constitution.

John Goldring Commissioner, Law Reform Commission of New South Wales Professor of Law University of Wollongong

1997 Revue d'eitudes constitutionnelles The Centre for Constitutional Studies is pleased to announce the publication in association with the University of Toronto Press of

CHARTING THE CONSEQUENCES: THE IMPACT OF CHARTER RIGHTS ON CANADIAN LAW AND POLITICS

edited by David Schneiderman and Kate Sutherland

Contents:

The Impact (Real or Apprehended) of the Canadian Charter of Rights and Freedoms on the Legislative Authority of Quebec Yves de Montigny

Infertile Soils? Sowing the Charter in Alberta Ian Urquhart

Business, Economic Rights, and the Charter Richard Bauman

The Impact of the Canadian Charter of Rights and Freedoms on Income Tax Law and Policy Kathleen A. Lahey

Contemporary Traditional Equality: The Effect of the Charter on First Nations Politics John Burrows

The Good, the Bad, and the Smugly: Sexual Orientation and Perspectives on the Charter Didi Herman

Rights, Nationalism, and Social Movements in Canadian Constitutional Politics Joel Bakan & Michael Smith

The New Equality Paradigm: The Impact of Charter Equality Principles on Private Law Decisions Kate Sutherland

The Charter and Access to Justice in Canada Mary Jane Mossman

The Charter and Mainstream Political Science: Waves of Practical Contestation and Changing Theoretical Currents Alexandra Dobrowolsky

Conclusion: Towards an Understanding of the Impact of the Charter on Canadian Law and Politics David Schneiderman and Kate Sutherland

COST: Cloth: $50.00 ISBN 0-8020-0811-9 Paper: $22.50 ISBN 0-8020-7181-3 For further information, contact: The University of Toronto Press Fax: (800)221-9985 / (416) 667-7832 Telephone: (800) 565-9523 / (416) 667-7791