A Collaborative Method to Overcome the Difficulty of Constitutional Amendment

Abigail McLatchy Dalhousie University

Constitutional politics hold a special place Before analyzing the issue of constitutional in Canadian political history. Demanding and reform in Canadian politics, a brief historical difficult, the politics of the Constitution have been overview of the difficulty of constitutional reform marked by disagreement and dissent for the entire is necessary. ’s of the brief history of this nation. is both a Canadian Constitution in 1982 failed to garner multinational and territorially vast federation, 's support and signature, resulting in thus it can only be expected that the views and decades of Canadian politics focused on “bringing demands of the diverse provinces and nations Quebec into the Constitution.” 1 Quebec had within will conflict. From this viewpoint, it seems a several specific demands, including desires to daunting task to unite this federation around a control their own independent immigration policy constitution meant to represent Canada as a and to be recognized as a , which harmonious and collective nation. This task has had to be met in order to see Quebec sign the led to years of meetings concerning constitutional constitution. amendments that would properly represent and The Meech Lake and meet the demands of the provinces and Accords provide the best examples of why as a whole, but the constitutional amendment constitutional reform is so difficult in Canada. Both process has proven to be extremely difficult and proposals failed and left Canadians with little or no largely unsuccessful. In light of repeated failures, appetite for constitutional politics; they also the question in discussion becomes: is showcased that the problem is not that Quebec is constitutional reform necessary to tackle not a part of the constitution, but that Canada is Canadians’ concerns about the performance and so large and diverse that provincial demands will legitimacy of the Canadian federation? never be harmonious nor unanimous. Canadian Performance and legitimacy must first be defined constitutional politics will continue to be to contextualize the argument ahead. deadlocked by virtue of Canada's diversity, not Performance and legitimacy are concerned with solely in Quebec but throughout all Canadian how effective the Canadian government is in the provinces, territories, and nations. eyes of the average Canadian citizen. Also, these The was a proposal two benchmarks are used to measure how negotiated by Prime Minister in accountable the government is to Canadians and 1987 with the premiers of the provinces. It was thus properly meets their demands and concerns. designed to have Quebec sign an amended A second question arises from this: is Constitution in exchange for the federal constitutional reform necessary to maintain this government meeting Quebec's five specific accountability, or can non-constitutional reforms demands. Mulroney sought to decentralize power act as a less formal but equally, if not more, to the provinces further, as evidenced by his effective means to achieve legitimacy and willingness to meet Quebec’s five demands, most performance? A constitutional amendment is notably recognizing Quebec as a distinct society necessary to satisfy the recurring demand for within Canada.2 The accord failed when both Senate reform, but, due to the unsuccessful and Newfoundland refused to ratify it by history of constitutional reform, non-constitutional means including collaborative federalism, 1 Peter Russell, Constitutional Odyssey: Can Canadians asymmetrical federalism, and open federalism Become a Sovereign People? (Toronto: University of have proven to be effective alternatives which Toronto Press, 1993). 125. meet Canadians’ expectations. 2 Russell, Constitutional Odyssey, 129-133. 10 Abigail McLatchy || A Collaborative Method to Overcome the Difficulty of Constitutional Amendment Federalism the three-year deadline.3 In conclusion, the accord Conservatives are clearly trying to avoid the failed due to general public opposition to its terms difficult process of constitutional amendment. and because it was written by “11 men in suits Legislative constitutional reform, although behind closed doors” without public dialogue and difficult, will be the only way to achieve Senate consultation.4 The result was that it discredited reform in Canada. executive federalism as a legitimate form of Bill C-7, the vehicle of Harper's attempted negotiation and left a sour taste in the mouths of constitutional reform, was first read in Parliament Canadians concerning constitutional reform. in June 2011. The two main reforms it called for Meech Lake also taught politicians that Canadians were a limit of nine years on senators' terms, and have to be involved in the negotiations regarding selection of senators through elections to be the Constitution. The Meech Lake Accord tainted conducted by the provinces. 8 Matthew constitutional reform in Canada, opening the door Mendelsohn argues several points against Bill C-7’s for, and even necessitating, non-constitutional attempt at Senate reform in his essay, "A Viable reforms in the coming decades. Path to Senate Reform.” First, under the The Charlottetown Accord was a package Constitution, the Senate has power equal to that of constitutional amendments proposed in 1992 of the House of Commons; however, it does not and was negotiated by the federal government, exercise these powers because it has no legitimacy the provinces, the territories and Aboriginal as it is an appointed, and not democratically peoples.5 Unlike the Meech Lake Accord, the elected, body. By creating an elected Senate, Charlottetown Accord was conducted with broad senators would gain legitimacy and an obligation public consultation, including seminars and to exercise their powers. This in turn could meetings held within provinces; however, during produce deadlock in government without a the end of discussion concerning the mechanism to address the equal nature of the two Charlottetown accord, politicians reverted to the bodies. Second, the current distribution of Senate ways of Meech Lake by engaging in secretive seats creates a power imbalance directed in favour processes and ignoring public consultation and the of the small Atlantic Provinces, who have more opinion that had been obtained. The seats than some of the larger provinces. For Charlottetown Accord was defeated in a national example, has ten seats while referendum mostly because it was lengthy and has only six seats.9 Mendelsohn most provinces found at least one proposal that argues that not only is reforming the Senate they did not agree with, once again exhibiting the through legislation unconstitutional, but, in order broad range of demands within Canada. 6 to avoid deadlock in government, reforming the Charlottetown was the last significant attempt at powers of the Senate must be at the center of the constitutional reform; it ended the era of proposed reform. Reform must also address the executive federalism and opened the door for distribution of senators to the provinces.10 collaborative federalism. Based on the Supreme Court Reference Since his minority victory in the 2006 Case on Senate Reform in April 2014 Senate election, has attempted to reform reform must occur through constitutional reform. the Senate in order to make it a more effective The Supreme Court ruled that constitutional and democratic body. Harper has specifically amendment is required for all planned Senate aimed to reform the Senate through legislation. reform, except for requirements of property and Most intellectuals reject the Conservatives’ net worth, which the federal government may argument that the Senate can be reformed solely amend through legislation. 11 The important by parliament and without a constitutional question is not whether or not Senate reform is amendment; 7 however, Harper and the of Toronto (2013): http://mowatcentre.ca/wp- 3 Ibid., 152 content/uploads/publications/64_a_viable_path_to_se 4 Gregory J. Inwood, Understanding Canadian nate_reform.pdf accessed November 2014, 7. Federalism: An Introduction to Theory and Practice” 8 Ibid., 3. (Toronto: Pearson Canada, 2013), 98. 9 Ibid., 6. 5 Ibid., 99. 10 Ibid., 9-10. 6 Russell, Constitutional Odyssey, 186. 11 Reference re Senate Reform, 2014 SCC 32, [2014] 1 7 Matthew Mendelsohn, “A Viable Path to Senate S.C.R. 704 https://scc-csc.lexum.com/scc-csc/scc- Reform?” Mowat Centre for Policy Innovation University csc/en/item/13614/index.do 11 Abigail McLatchy || A Collaborative Method to Overcome the Difficulty of Constitutional Amendment Federalism necessary, but rather, whether or not it is possible. of executive federalism. Collaborative Federalism Senate reform has been at the forefront of brought to Canada non-constitutional reforms Canadian politics in recent years, but the Supreme including The Social Union Framework Agreement Court ruling that it must happen through (SUFA) and The Agreement on Internal Trade (AIT). constitutional amendment may deter the process. David Cameron and Richard Simeon define As exhibited by the failure of mega-constitutional collaborative federalism in their article, politics in the 1970’s through to the 1990’s, “Intergovernmental Relations in Canada: The provincial governments have a difficult time Emergence of Collaborative Federalism” as coming to mutually satisfactory conclusions. Therefore, it may be argued that Senate reform the process by which national goals are will never come about, as it requires the amending achieved, not by the federal government procedure of consent of seven of the ten acting alone or by the federal government provinces or 50% of the population. 12 shaping provincial behavior through the Furthermore, the abolishment of the Senate exercise of its spending power, but by altogether is unlikely, as the Supreme Court ruled some or all of the 11 governments and the that it requires consent from the Senate, House of territories acting collectively.15 Commons, and every province/territory.13 Senate reform may not be an attainable dream as it Collaborative federalism allows for non- requires changing the Constitution. Canadians are constitutional reform because it creates flexible not eager to engage in constitutional politics, nor agreements, such as the Agreement on Internal is it likely that the provinces will ever come to a Trade, and the Social Union Framework consensus concerning a political body designed to Agreement. Agreement is the key word in represent the regions. Despite the federal collaborative federalism; agreements are not as government's attempt to use non-constitutional constricting as constitutional changes. means to reform the Senate, it is not possible; Constitutional changes are comprised of what however, non-constitutional means do offer a Cameron and Simeon call “uncompromising solution to other concerns held by many language.” 16 Constitutional changes are Canadians. entrenched in the constitution and the results are Collaborative federalism emerged concrete and restricting, whereas agreements following the era of mega constitutional politics, allow for compromise in their language, as they which was dominated by executive federalism. An are not as formal as constitutional reforms. example of executive federalism is when provincial The Agreement on Internal Affairs (AIT) is premiers take it upon themselves to be an agreement between the federal government spokespeople for their provinces, without the aid and the provinces which reduced the restrictions of the provincial legislatures. Premiers advocate on mobility of people and goods between the their causes directly with the prime minister and provinces. It was created following the failure of Cabinet, and most negotiations occur behind the Charlottetown Accord and the failure of the closed doors.14 Executive federalism was generally federal government to extend their powers disapproved of following the failures of the Meech concerning the economic union.17 It is restrictive in Lake and Charlottetown Accords due to its lack of practice as it fails to allow public access, but it is a citizen inclusion in political dialogue. Executive breakthrough in intergovernmental relations. It is Federalism can be considered a reason why also a non-constitutional reform that shows that it constitutional reform was not possible, as it did is possible for the provinces and the federal not include citizen input in affairs concerning government to work in a collaborative method in Canadians. Executive Federalism promotes order to achieve reform. negotiation behind closed doors and generally deadlocked constitutional reform in Canada. 15 David Cameron and Richard Simeon, Collaborative federalism emerged as a new form “Intergovernmental Relations in Canada: The of in response to the failure Emergence of Collaborative Federalism” The Journal of Federalism (2002): http://publius.oxfordjournals.org/content/32/2/ 12 Ibid. 49.full.pdf+html, 54. 13 Ibid. 16 Ibid., 55. 14 Inwood, Understanding Canadian Federalism, 84-86. 17 Ibid., 55-56. 12 Abigail McLatchy || A Collaborative Method to Overcome the Difficulty of Constitutional Amendment Federalism The Social Union Framework Agreement Quebec will be the only province observed in this (SUFA) is concerned with the process of how example. Alain Gagnon argues that the provinces governments (provincial and federal) relate to are fundamentally different and they occupy their each other and their citizens concerning social jurisdictions in different ways. For example, policy. SUFA calls for joint federal-provincial Quebec has consistently demanded asymmetrical planning in social policy and calls for a larger role policies but has demanded them through for citizens in decision-making.18 It is an example constitutional change. 21 There is a way of of collaborative federalism because the provinces appeasing these demands by constructing created it by working towards making common asymmetrical policy, which can be modified while policies and proposals for the federal government. leaving room for change in the long term. Policy It showcased that, despite having different and that is asymmetrical in Canada is what Jennifer conflicting interests, the provinces remained Smith calls “asymmetrical in practice.” 22 For consistent to the federal government and proved example, the opting out mechanism allows they could achieve consensus. Both SUFA and AIT provinces to opt out of federal programs and acted as broad frameworks that collaborative design their own. Quebec used the opting out federalism could work within. They were general mechanism to form their own pension plan: the rules of conduct that showcased that reform was Quebec Pension Plan.23 Asymmetry in this means necessary but had to be done in loose, non-legal allows provinces to run programs that they feel binding means and not through drastic can best represent their unique provincial constitutional changes. These reforms, however, concerns. The Quebec Pension Plan exhibits how were not perfect; they lacked public consensus asymmetrical federalism is flexible; it can be a and encountered a lack of commitment to their means of accommodating the demands of Quebec use in joint problem solving.19 by offering them a way to display and encourage Jennifer Smith defines asymmetry as: “the their French culture. Quebec gaining control of differential treatment of the units of the areas of social policy demonstrates that federation under the constitution or in national asymmetry works. The most important argument public policy.”20 Canada is not only multinational to make is that provinces may be more able to but also a territorially large country; therefore, it is meet demands of citizens because they are more doubtful that there will be a consensus among the accessible than the federal government due to the provinces concerning demands. Asymmetrical sheer size of Canada. This argument, combined federalism offers a solution to accommodate the with the fact that Quebec is predominantly differences of multinational Canada without francophone and the federal government hosts amending the Constitution. Asymmetry can be a representatives from the other nine provinces, major political instrument that can affectively makes the most sense: to promote asymmetrical accommodate the political desires of minority policies without reforming the constitution. nations. Open federalism offers another approach The strongest example of how to meeting the demands of Canadians without asymmetrical federalism offers a solution for constitutional reform. Inwood describes open Canadian constitutional politics is by observing the federalism as an approach to intergovernmental demands of Quebec. Asymmetrical federalism can relations articulated by Prime Minister Stephen accommodate the political demands of the Harper, which advocates a classical model of francophone minority nation because legislation federalism in which each level of government and agreements can be constructed that meet restricts its activities to areas of its own Quebec's unique demands without imposing jurisdiction. Harper also advocated limiting the themselves upon other provinces. This process can use of federal spending power so as to not intrude be extended to other provinces but, for simplicity,

18 Ibid., 56-58. 19 Ibid., 58. 21 Alan Gaignon, “Asymmetrical Federalism in an Era of 20 Jennifer Smith, “The Case for Asymmetry in Canadian Exacerbated Centralism,” in Contemporary Canadian Federalism,” Working Paper. N.p.: Queens University Federalism, ed. Alan Gaignon (Toronto: University of School of Policy Studies (2005), Toronto Press, 2009.), 259. http://www.queensu.ca/iigr/WorkingPapers/asymmetri 22 Smith, “The Case for Asymmetry,” 2. cfederalism/Smith2005.pdf, 2. 23 Ibid., 2-3. 13 13 Abigail McLatchy || A Collaborative Method to Overcome the Difficulty of Constitutional Amendment Federalism on provincial affairs.24 Open federalism recognizes are not recognized as significantly different than that provinces are most able to deal with any other province. Asymmetrical policy is provincial affairs due to their experience and promoted through open federalism and allows the proximity to the people, thus promoting provinces to choose what they want to control. asymmetrical federalism. As discussed above, This argument could be defended by the fact that asymmetrical federalism is an effective means of Quebec was symbolically recognized as a nation meeting the demands of the provinces as it puts but not formally. Harper – like Prime Ministers the power into their hands. Frédéric Boily makes before him – has refused to grant special status to the argument that the “openness” of Harper’s Quebec within Canada in order, one may suppose, federalism allows the provinces to strengthen their to avoid the slippery slope of Quebec secession; responsibilities within their constitutional however, despite the lack of special concessions to jurisdictions.25 One could argue that, since Stephen Quebec, open federalism does promote Harper’s open federalism promotes asymmetry, it asymmetrical federalism, thus allowing the diverse is an effective means of remaining accountable to territories of Canada to provide policy to Canadians. Open federalism respects rather than Canadians via the most effective means without amends the constitution, thus promoting amending the Constitution. asymmetrical agreements and legislation, which Canadian constitutional politics of the past proves a more effective means of reform. three decades have been defined by the difficulty In November 2006, Stephen Harper in achieving constitutional amendment. The proposed to recognize the Quebecois as a nation Meech Lake and Charlottetown Accords left no within Canada, thus recognizing the multinational spirit for constitutional politics in the average character of the federation.26 It was a symbolic Canadian; citizens began to associate amendment but non-constitutional recognition, as it did not with the unsuccessful accords. Senate reform is a recognize Quebec as an independent state within recent political issue in Canada defined by the Canada but rather recognized the people of government’s inability to accomplish reform that Quebec as a nation. This is important because the will properly meet the expectations of Canadians. Conservative government did not cede any As discussed, this is at the heart of constitutional differentiated powers to Quebec; however, it was amendments: expectations of Canadians must be the closest concession in the ’s met. Canada, however, has had a difficult constitutional politics to the original demand by experience with achieving strong multilateral Quebec to be recognized as a distinct society as in consensus no matter the issue at hand. For this the Meech Lake Accord. Jean-Francois Caron and reason, it is unlikely that constitutional Guy Laforest argue that this motion was simply an amendment will be a reliable and successful way example of symbolic multinationalism and not an to meet expectations of Canada. The impossibility example of multinational policy, thus it does not of constitutional amendment opens the doors for change the way asymmetrical policies are a more collaborative system, comprised of non- implemented within Canada. 27 The argument constitutional amendments, for the Canadian could be made that open federalism simply federal government. Under the umbrella of promotes asymmetrical federalism symmetrically collaborative federalism, asymmetrical policies to all the provinces. This means that Quebec may and open federalism have evolved as a means to get special concessions concerning policy, but they maintain the performance, legitimacy and effectiveness of the Canadian federation. One may confidently say that this collaborative model of 24 Inwood, Understanding Canadian Federalism, 100- federalism, along with asymmetrical policies, is the 101. 25 Frédéric Boily, “Federalism and the Federation most effective means of meeting the conflicting According to Conservatives 1975-2011.” The Federal demands of the people in a multinational and Idea: A Quebec Think Tank on Federalism, (2014), territorially diverse Canada. http://ideefederale.ca/documents/Boily_ang.pdf., 19. 26 Ibid., 19. 27 Jean-Francois Caron and Guy Laforest, “Canada and Multinational Federalism: From the Spirit of 1982 to Stephen Harper’s Open Federalism.” Nationalism and Ethnic Politics (2009), DOI: 10.1080/13537110802672370, 45. 14 14 Abigail McLatchy || A Collaborative Method to Overcome the Difficulty of Constitutional Amendment Federalism Bibliography

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