Amendment and Entrenchment – To what extent is the way that the country operates today reflects the written text of the constitution?
JOSHUA KRANE
Recall the question – what is a constitution? Section 52 of the Canada Act defines the constitution as the supreme law. The section enumerates a list of written texts but it does not acknowledge unwritten conventions or other written documents, such as the Supreme Court Act. Being entrenched, then the supremacy clause is activated with respect to other laws. Entrenched provisions are difficult to change[1].
Constitutional conventions have a problematic legal status, because the courts discuss the conventions and their political role (if they are binding) but not their judicial role. They seem to govern the relations between actors, but they are not enforceable or entrenched per se. The system of responsible government is based on convention and is not entrenched in the BNAA.
Before 1982, the written text of the constitution could be changed by legislation by the British Parliament, issued by joint resolution by Senate and House. The Parliament would generally obtain the consent of the provinces, re Patriation Reference – a substantial degree of provincial consent was required as a convention. Quebec’s consent is not required (it has not veto).
A large measure of acquiesance (or political sanctions) would provide legitimacy for a convention. Why does the court speak about the legitimacy of conventions? In order to make sense of the written text, the court must consider how the text functions pragmatically.
Constitutions can change without amendment, since convention, new laws, treaties cause constitutions to change organically over time. Informal mechanisms become more important when political actors consider the formal procedures rigid and unworkable. Incremental constitutional change can be achieved by judicial interpretation of existing constitutional provisions. A notable recent example is the SCC’s discussion of the constitutional obligation on all parties to Confederation to negotiate secession if a clear majority of Quebec voters decides in favour of a clear question on independence[2]. The courts have interpreted unwritten principles (re Secession) as derived from case law and from constitutional documents.
Unwritten principles are used to shape the way the court reads the constitution, text, or law in question.
If the obligation is a legal duty, it seems that they are based on court’s interpretation of the unwritten principles. In the 1980s, the court referred to constitutional convention, yet now, the court refers to legal duties founded in principle. Could the court have simply referred to convention instead? The court is still using the language of legitimacy, but now, it seems to pronounce on the very substance and essence of the constitution. The delicacy of the situation plays into the perceptions of the situation.
Did convention give rise to the principles? Did the growth of provincial responsibility out of the judicial decisions of the late 19th century create the opportunity for federalism to emerge as a principle?
The matters of design consider who gets to formally change the written constitution and the balance between flexibility and stability. One purpose of a constitution is a limitation device to prevent tyranny of a majority or powerful minority.
Amending Formulae
An ‘amending formula’ is a set of rules for making changes to the Constitution. Canada has several formal and informal procedures.
[s.38] The general – or 7/50 – amending procedure is the residual formula. It is used explicitly for amendments relating to the principle of proportionate representation in the House, some matters relating to the Senate and SCC, and the establishment of new provinces. In cases where an amendment proposes to transfer “provincial legislative powers relating to education or other cultural matters from provincial legislatures to Parliament,” (section 40), one or more provinces may opt out of the application of the amendment as in the second formula; but additionally, those provinces opting out are eligible to receive “reasonable compensation” from the federal government but only in cultural and educational matters.
[s.41] In cases of amendments relating, among other things, to the Queen or her Canadian representatives, the composition of the SCC, or changes to the amending formula itself, then the unanimity rule applies: resolutions must be passed by both houses of Parliament and by every provincial legislature. Secession would require an abolition of the lieutenant governorship, and therefore would require unanimous provincial approval.
[s.43] In cases where an amendment, (for example, the alteration of provincial boundaries) affects one or more provinces but not all of them, then resolutions to that effect must be passed by both houses of Parliament and by the legislatures of the provinces affected by the amendment.
[s.44] Amendments relating to the “Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons” are passed in the form of legislation by the Parliament alone. [s.45] The constitution of a province may be amended by legislation passed by the provincial legislature concerned.
The authors of the Red Book suggest that the will of majorities can bring about amendments to constitutions, see Newfoundland denomination schools question. If the amendment can touch upon issues of minority rights, an unwritten principle, then it may be possible that no part of the constitution is truly protected – representing a core law.
After 1982, both Meechand Charlottetownwere meta-attempts to change the constitution. Both attempts, however, failed to get sufficient support for entrenchment. Some critics suggest that federalism is not sufficient to change the constitution. When amendments are transferred from executive to legislative, more uniformity is required to build consensus; however, the procedure is far more inflexible. It would seem though, that following the Charlottetown Accord there is a precedent for referendum before a major constitutional change.
Under section 35(1) of the Charter, federal and provincial governments are required to consult with representatives of the Aboriginal peoples of Canada prior to passing amendments that affect them. Monaghan explains that these provisions have indirectly silenced the original requirements of mere federal approval in matters of provincial boundaries.
Monaghan recognizes that there are some things that have a constitutional-like status that are not expressly listed in section 52 of the BNAA. Monaghan recognizes that since the SCC is referred to in the amending formula, then key aspects of the SCC should be included (or the letters patent composing the office of Governor General). Instead of protecting status quo, Parliament could make changes unless opposition sought a constitutional amendment – flipping the situation around.
Monaghan suggests that for unwritten principles, the court’s inference in Secession effectively amended the constitution. Can the legislature change an unwritten principle? If these unwritten principles are necessarily implied by the text, then maybe these principles are the core of the constitution until dramatic changes are made to the text of the constitution.
Instruments of Flexibility (other than formal amendment)
Instruments of flexibility are mechanisms to change the exercise of power. Unlike amendment, which is seemingly difficult to put forward, these mechanisms seem more flexible, because they involve negotiation between political leaders and do not face direct conversation with the public (like a constitutional referendum).
When the state gets involved in the activities of civil society, the state becomes a social or a welfare state. During the 1940s, the state began to bridge the gap with civil society to nationalize systems of healthcare, welfare, and education. Social policy involves providing access to services (through redistribution). The federal government is limited by the division of powers – when the state is asked to do more, the division of powers had to be reconceived.
Courts have placed few restrictions on the other policy instruments available to governments other than regulation, which include: taxation, spending power, public ownership, and intergovernmental agreements. A series of intergovernmental agreements were created in the 1950s and 1960s including the Canada Health Act to provide federal funding for provincially operated social services including healthcare and social services.
The Canada Health and Social Transfer was controversial because the federal government could make adjustments to the agreement without provincial consultation. The federal government has tried to minimize court challenges for fear that the court will place limits on its spending power as an unconstitutional intrusion in section 92 powers.
Intergovernmental Agreements and Delegation
Reference Re Canada Assistance Plan (BC) [1991] SCCFacts: The agreement was made under a federal law, the Canada Assistance Plan, which could be amended by the legislature. The agreement specifies that payments are to be made, but the formula is built into the law.
Issue: Can the federal government make adjustments to the distribution of the plan money without the consent of the provinces?
Held: Yes
Reasoning:
- Section 5 of the plan gives the federal government the power to amend the act (parliamentary sovereignty and supremacy. The court finds that this agreement is not a contract but an arrangement between governments. The agreement could be changed therefore by an act of Parliament, as the contract did not create a contractual obligation between two parties.
- There are varying levels of interpretation of this ruling: Parliament decides the level of funding exclusively (no obligation), the agreement was binding but it could be discharged by conflicting legislation, the obligations created by intergovernmental agreements are political & not legal.
- How can we have the second reason? If the executive is part of the legislature, then how could the executive make an agreement and then revoke it in the legislature?
- The Charlottetown Accord would have ensured that such agreements were legally binding by proposing an amendment to the BNAA.
Each government is sovereign in its own jurisdiction (Hodge) meaning that one government cannot give a power to another without constitutional change (McEvoy). When we speak of delegation, Parliament is transferring regulatory power though it shares it with others (such as with administrative boards). In Hydro, Sopinka recognized that an administrative board should not be deciding on criminal matters. This raises questions of responsibility – who is responsible for law making?
In the Nova Scotia Interdelegation case (1951), the SCC established that neither Parliament nor the provincial legislatures could delegate legislative power to the other level of government. (See Hogg for more on this case.)
Coughlin v Ontario Highway Transport Board [1968] SCCFacts:
- According to the division of powers, the provincial board should only be allowed to granted intra-provincial licenses. Coughlin challenged the Ontario Commercial Vehicles Act, which empowered the board (via federal approval) to grant extra-provincial licenses as well.
Held: Yes, but they cannot transfer powers to another government.
Reasoning:
- The provincial government already regulates provincial highways. The federal government wanted to transfer extended powers without changing the BNAA. The federal government passed a law that allowed the Boards to grant inter-provincial license. Is Parliament simply piggybacking on a provincial law? The same board is issuing both licenses – Cartwright is arguing that there is no transfer. As long as the power can be withdrawn, then the government is not abdicating power.
- Where the provinces have an existing legal regulatory apparatus in place, the provincial board can apply the powers granted to it by the federal government. The provincial board may not for its sole purpose function to administer a federal power.
- The Act was not ultra vires. There was merely a delegation of the right to regulate a matter, which came within the jurisdiction of Parliament.
- Richie questions whether: The Agricultural Products Marketing Act, when read together with the provincial legislation, constitute an example of valid co-operation between federal and provincial authorities, and the whole question in the present case is whether the same thing has been achieved by the enactment of s. 3(2) and s. 5 of the Motor Vehicle Transport Act.
- Richie distinguishes this case from the APMA finding that in his view, Parliament has effectively relinquished control over its jurisdiction, by allowing the provinces to set the general guidelines for the issuance of licenses, while maintaining the right only to provide exceptions.
- Richie seems to be concerned, because if the federal law is valid, the effects of the previous case, which found it beyond the provincial government’s power to regulate inter-provincial trucking entering the province, is nullified. Now, provincial boards can decide who can enter the province.
However, the federal government and the provinces have used “devices” to get around this ruling. The Coughlin case uses all of the following:
- Administrative delegation: when one level of government carries out the functions legislated by the other (the Board carries out the functions set out in the federal act).
- Incorporation by reference: when the laws of one level of government acknowledge the authority of the other level’s law (the federal parliament is incorporating the same rules for inter-provincial licenses as intra-provincial licenses).
- Conditional legislation: legislation that requires the other level of government’s approval before coming into effect (the province must have a law/Board to trigger the effect of the law).
The objection of the dissent seems to criticize the incorporation by reference, finding that the provision of exceptions is not regulation.
The Spending Power
The federal government has been able to spend tax revenue on programs that traditionally do not fall within its jurisdiction. Under shared cost programs, the federal government will grant revenue, with attached conditions (is this regulation in the domain of social policy?), while direct funding/equalization grants are unconditional. Even with a legal basis, there seem to be political objections to it as the provincial governments legislate over social policy. Neither levels of jurisdiction seem to want to bring the matter to litigation.
In the Winter Haven Stables (and the CAP) case the court holds that the conditions are valid, but the conditions cannot amount to regulation or control. The courts do not want to commit to creating legally binding obligations regarding the spending power. Courts are in a difficult position to reconcile a practice that has evolved since the 1950s.
Petter, a critic of the federal spending power has suggested that although the federal government can reflect the attitudes and standards that are pan-Canadian, the provinces are responsible to their constituents for administering social services and should have the financial means to fulfill that responsibility without having to be accountable to another government. Different decisions ought to be made at different levels – regional majorities ought to make social decision. Shared cost programs seem to go beyond simple equalization, because those programs interfere with the administration of the social policy.
However, Choudry has responded by suggesting that federalism creates a market for mobility, where the rich will move to parts of the country that have the lowest taxes, and where they can buy social services without having to pay for distribution (game theory). The federal government is better able to ensure that all provinces maintain roughly similar standards of service and levels of taxation to prevent attrition. The rough equality is enforced by federal regulation and penalties for provinces that violate the standards.
Unlike the conditional social transfer, equalization payments are unconditional and are made to the “have not provinces” only. The amount of the payments depends on the ability to raise revenue (need of the province).
Summary – Limiting Government [Sajo], Crisis of Democracy [Schmitt]
Sajo explains that the liberal ideal of parliamentarism presupposes rational debate and discussion. The emphasis is placed on the process itself, rather than on representation (democratic).As franchise was increased, more voters and parties emerged, and as the party system has evolved, parliament role as an institution for political debate has declined. Parliament was merely an anti-chamber to legitimate party decisions. Parliament no longer served as the “thought of the people”.
Debates that take place within the parliament are supposed to be communicated to the public via the media; however, the real debate occurs outside parliament and the characteristic of the decision-making process itself has changed. The will of the people perverts the thought of the people. Sajo seems to identify a move from revealing a “truth” from debate to articulation of interests. To what extent is public debate achieved when the franchise is extended and heterogeneity emerges in the public realm.
Schmitt explains that the tensions that exist within parliament are reflective of broader constructions of the nation-state. A strong presidential system can be as democratic as the parliament. When an institution has certain institution’s foundations that are challenged, what becomes of the institution?
How does a parliament/president gain its legitimacy? The legitimacy of parliament is not supposed to arise from charisma of the individual, but that legitimacy of the truth will emerge from rational discourse. To the extent that parliament cannot select the best individuals, they should be able to learn how to do so; however, the belief in those possibilities are shaken.
Can we have an institution without a sense of legitimacy? What is the basis of legitimacy for Parliament today?
The Charter fulfills the constitutional check-and-balance, as Sajo describes. The Charter provides individuals with recourse against the state so that the party in power (not speaking on behalf of the nation) does not interfere with the individual liberties of citizens.
The need for a Charter is based on an assumption that the polity is heterogeneous – as a true social contract rests on a conception of difference. The Charter is the social contract described by Rousseau as a document that creates mutually binding obligations among citizens and the state.
Additional Notes:
Federalism and Racism (Antecedents of the Charter)
The Charter is a document that entrenches human rights in the constitution. The antecedents of the Charter will reveal the development of the case law prior to the advent of the Charter. In the race cases, the question of rights relates to the division of powers, centred on the limits of 91(25) and the corresponding scope of provincial jurisdiction over 92(13) and 92(16). A supreme law is used to strike down laws that overstep jurisdictional boundaries.