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A Collaborative Method to Overcome the Difficulty of Constitutional Amendment 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. Pierre Trudeau’s patriation of the brief history of this nation. Canada is both a Canadian Constitution in 1982 failed to garner multinational and territorially vast federation, Quebec'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 distinct society, 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 Charlottetown meet the demands of the provinces and Canadians 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 Meech Lake Accord was a proposal two benchmarks are used to measure how negotiated by Prime Minister Brian Mulroney 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 Manitoba 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, New Brunswick has ten seats while referendum mostly because it was lengthy and British Columbia 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, Stephen Harper 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
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