24 February 2017

Asserting our Knowledge #nlpoli

Opinions are great things.

Everyone is entitled to them.

Not every opinion, though, is equal in value or validity or, as former CBC boss Tony Manera showed recently, in veracity.  Manera wrote an opinion column for the Ottawa Citizen that appeared on Thursday. He offered three changes to the constitution that he said would fittingly boost Canada's sovereignty in this the 150th anniversary of Confederation.

  1. "Canada cannot choose its own head of state."
  2. "Amendments to the Constitution require the virtually impossible unanimous agreement of Parliament and all provincial legislatures."
  3. "There is also a notwithstanding clause that can override our Charter of Rights and Freedoms."



Head of State:  Canada can and has chosen its head of state.  The fact that the Queen of Canada is also the Queen of another country might have historical roots but there is no question that Canadians could change the head of state by changing the Constitution.  Theoretically, Canadians could make the changes violently but, mostly likely they would do it using the rules for changing the constitution set out in the Constitution Act, 1982.

Amendments:  There are three sets of amending rules, not the one Manera mentioned.  Issues affecting one province alone can be changed by a resolution of the federal parliament and the legislature of the province involved.  Most amendments would need resolutions from the federal parliament and the legislatures of two-thirds of the provinces representing at least 50% of the Canadian population.  The third formula - resolutions of the federal parliament and all the provinces -  are needed for a handful of fundamental aspects of the constitution, like the head of state.

"Canada should be able to reform or abolish the Senate using the general procedure for amending the Constitution. It requires authorization by Parliament and the legislatures of two-thirds of the provinces with at least 50 per cent of the population of all provinces."  Talk about confusion.  We can reform the Senate today using the general amending formula (2/3rds of provinces representing 50% of Canadians plus the federal parliament).  

To abolish the Senate, the Constitution Act, 1982 says we need unanimity.  Manera doesn't say why we need to lower the standard in order to abolish the federal senate.  Maybe that's a clue as to how much of a problem this really is.

Notwithstanding Clause.  One of the prices the federal government paid for getting a charter of rights in the Constitution was a clause to placate folks who feared the courts could overrule the elected representatives of the people when it came to laws.

That was then. Thirty-five years later the clause hasn't caused any problems. Manera's list proves it.  In fact, one of his examples shows that it can be hard for a provincial legislature to take away fundamental rights. The Alberta equal marriage case may have hinged on the question of whether marriage law was federal or provincial but it shows the courts can stop the legislature from infringing on rights. 

Would the decision have been any different if a provincial government had tried to force adherents of a particular religion to wear identifying symbols on their clothing?  Most likely not, given the need - as Manera acknowledges - for the restrictions to be consistent with limitations one might find in a free and democratic society. Even in the worst case,  a legislature would have to renew the resolution after five years.  

Having failed to identify a real problem with the Constitution as it current exists, Manera's list of proposed benefits of his constitutional proposals add up to pretty much nothing. The fact Manera is fundamental wrong on several of them doesn't help his case. 

Canadians should celebrate the 150th anniversary of their country.  There are lots of ways to do it. But fixing something that isn't broken seems like an enormous waste of time.  And truthfully, Manera could celebrate the country's anniversary by actually reading its constitution and understanding how it has worked to produce a prosperous and diverse country that is still going strong a century and a half later.