Canada returns to the constitution? The new government’s agenda for constitutional reform

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Canada’s federal election on October 19 returned to power a Liberal government with a wide-ranging programme for constitutional reform that touches on the electoral system, parliament and relations with the provinces. David Brown offers an overview of this agenda, which includes several reforms introduced or discussed in the UK in recent years.

The election of a Liberal government with a solid majority opens a new chapter in Canada’s enduring fascination with its constitution. The party’s election platform includes an impressive range of promises that touch on the operations of the constitution – many of them intended to remedy or undo measures taken by the outgoing Conservative government led by Stephen Harper – although it is more cautious on the larger structural issues lurking below the surface. Evoking the ‘sunny ways’ of Wilfrid Laurier, a Liberal predecessor, incoming Prime Minister Justin Trudeau is offering a change in tone and style in the day-to-day running of national institutions. Determined to be his own man he is, however, moving cautiously in approaching the larger constitutional reform stage that preoccupied his father, Pierre Elliott Trudeau, in the 1970s and 1980s.

The Canadian constitution, likes its British parent, is a work in progress. The original federal Constitution was enacted in 1867, the year that Bagehot published The English Constitution. The British North America Act (now the Constitution Act), neatly resonates with his distinction between the dignified and the efficient features of the Constitution. The written Canadian Constitution provides for the Crown, Privy Council, parliament, the courts and parallel institutions at the provincial level (along with lists of enumerated powers of the two levels of government),  cumulatively providing the enduring framework within which the real business of governance is transacted. These efficient elements, including the Prime Minister, Cabinet, public service and the day-to-day operations of parliament and the federal system, emanate solely from the laconic observation in the Preamble to the Constitution Act that Canada has ‘a Constitution similar in Principle to that of the United Kingdom.’ Changing the written Constitution involves use of a demanding amending formula that in several areas requires unanimity among the federal and provincial governments. The unwritten is the realm of constitutional convention.

Thirty years of constitutional reform in the second half of the 20th century resulted in a refurbished written Constitution in 1982, notably adding a previously missing amending formula and an entrenched Charter of Rights and Freedoms. It also left unfinished business, not least the fact that the changes were not – and have yet to be – endorsed by Quebec. The Harper government was content to leave that particular dragon asleep, but it did make a number of changes to legislation and practice that touch on the operations of constitutionally-based institutions and conventions; these are the areas that the new Trudeau government plans to attack, at least to begin with.

More than 20 Liberal campaign promises have constitutional implications, many of them touching on reforms introduced or discussed in the UK in recent years. The list includes updating the Access to Information Act and commitments to open data and greater transparency in parliament’s own finances. A section on elections promises reformed government advertising and party financing, increased autonomy for the Chief Electoral Officer, an independent commission to organise leaders’ debates during election campaigns, encouragement for first-time voters and strengthened protections against voter fraud – all seeking to remedy changes by the Harper government. The most ambitious proposal is to create an all-party committee to recommend changes in the electoral system, vowing to replace Canada’s unreconstructed first-past-the-post system within 18 months.

The Trudeau 2.0 Liberals have ten proposals for reforming parliament. Again many address widely-criticized Harper government measures, including pledges not to abuse prorogation of parliament or omnibus bills, increased transparency in the estimates and public accounts, greater autonomy for parliamentary officers and loosened party discipline. Promised innovations include a dedicated weekly Prime Minister’s Question Period, a greater parliamentary role in vetting Supreme Court appointments and in overseeing national security agencies, and election of House of Commons committee chairs by secret ballot.

The thorniest issue that the new government faces is the Senate, whose 105 members are appointed to age 75. Faced with Senate expense account scandals, most prominently involving several of his appointees, but thwarted by the Supreme Court in his efforts to move to an elected Senate without amending the Constitution, Stephen Harper stopped making Senate appointments and left 22 vacancies.  Senate reform – or abolition, as advocated by the third party, the New Democratic Party – became an unlikely election campaign issue, and Justin Trudeau has pledged a middle road of a reformed process for identifying candidates for appointment to the Senate. Earlier this year he ejected all Liberal Senators from his parliamentary caucus, adding to the challenge of dealing with a Conservative majority in a Senate that has full veto powers over all legislation.  This is something to watch.

It will also be interesting to see whether the appetite for reform to the written Constitution will return. Currently this seems unlikely, but not impossible, although it would require a convergence of forces. The unfinished business from the last generation’s constitutional rounds is unlikely to provoke such a development, although it would quickly come into the mix if momentum began to develop. Senate reform, especially if joined with electoral reform, could add to the pressure.

More significant is Trudeau’s pledge to restore a collaborative approach to working with the provinces, including re-instituting regular meetings with their Premiers, whom Stephen Harper met as a group only once in nearly ten years in office. Inevitably this will re-open arcane but pregnant debates about distribution of powers and public finances. Quebec’s agenda – its price for signing on to the 1982 Constitution – is still on the table, and the fact that the tides of separatism are at a low ebb may tempt a Quebec-based federal Prime Minister to work with the most federalist Quebec Premier in decades to seek to address it. The tipping point, however, may well come from a final campaign pledge, to pay closer attention to the concerns of Canada’s aboriginal population, whose agenda was a casualty of the last unsuccessful constitutional round. If there is an irresistible constitutional force at work, this is it.

About the author

David Brown is a Professor in the School of Political Studies at the University of Ottawa.


One thought on “Canada returns to the constitution? The new government’s agenda for constitutional reform

  1. Pingback: Updates from Canada: don’t call it constitutional reform | The Constitution Unit Blog

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