Supreme piece of judicial statecraft

TheStar.com – opinion/editorialopinion
Published On Tue Sep 27 2011.   Roy Romanow and John Whyte

Thirty years ago, on Sept. 28, 1981, a Supreme Court opinion set out rules for amending the Constitution. This turned out to be the most politically significant opinion the court has delivered in its existence. It led to the nation’s most defining political developments since Confederation.

This opinion established that Canada’s constitutional order contained rules that governed how Canada could make constitutional changes.

Although it is usual for constitutions to include rules for their amendment, Canada’s written Constitution did not. It fell to the Supreme Court to infer these rules from our constitutional practices and structures.

In doing this, the court rejected the prevalent idea that the constitutional amendment process was no more than the Canadian government asking the British Parliament to enact constitutional changes. The court’s opinion undermined prime minister Pierre Trudeau’s strategy of conducting constitutional negotiations with the provinces against the backdrop of federal unilateral power to implement amendments.

The court also declared that unanimous approval of the provinces for constitutional amendments was not the rule — Canada was not the result of a compact between provinces all of which had to agree to any constitutional change. This holding diminished the negotiating power of the “Gang of Eight” — the provinces that opposed the Trudeau constitutional plan. More significantly, it eroded solidarity within that group.

The court had been asked to define both the legal rules and constitutional conventions for constitutional amendment. As for legal rules, the court, in a blindingly formalistic opinion, said the law was that any changes to Canada’s Constitution made by Britain would be binding, regardless of where the initiative for change originated.

With respect to constitutional conventions, however, the court said that any request to Britain for an amendment must originate in a request from Canada and, if the amendments affected provincial powers, those requests must have a substantial degree of provincial consent, but not unanimous consent.

Most provinces opposing a federal unilateral amending power had argued that unanimous provincial concurrence was needed. Saskatchewan, however, argued that the constitutional convention was that substantial, not unanimous, provincial consent was all that was necessary. It submitted that conventions must accord with past governmental practice and make constitutional sense. The requirement of provincial unanimity did not make sense — it would defeat Canada’s capacity to be self-determining with respect to its basic law. The court agreed with this argument.

Trudeau and federal justice minister Jean Chrétien declared victory for the federal government, claiming that unilateral federal power to amend had been confirmed. But this was a hollow claim.

Although conventions are not legal rules that will ground court orders, they are constitutional rules of governmental conduct. The Canadian public and the British Parliament expected full constitutional compliance — both legal and conventional — from the Canadian government. Shortly after the court’s opinion, British prime minister Margaret Thatcher suggested to Trudeau that any request for amendment needed to comply with all of Canada’s constitutional rules.

Canada was again caught in its long-standing impasse over constitutional reform. Trudeau and the provincial premiers agreed to try again to reach an agreement. For nearly three days there was no glimmer of compromise.

Then constitutional realities struck home: Canada was unable to exercise the basic right of a sovereign state to enact its own constitutions; proceeding without the provinces’ agreement would embarrass Canada and its national government; provinces needed to recognize that, in the face of their obdurate refusal to compromise, constitutional convention could legitimately be broken.

At that point, some provincial and federal ministers came to common ground — ground that for the prime minister and some premiers was next to impossible to swallow, but for the fact that the costs of not agreeing were more unpalatable. An agreement was reached, albeit one accompanied by regret and dissent.

And so it was that Canada’s constitution became fully Canadian, that Canada acquired the ability to change its own Constitution, that Canada adopted constitutionally recognized human rights and liberties, that legislatures retained a limited ability to set limits on individuals’ rights claims, and that the principle of equal public services was adopted.

Canada became a better nation — a complex nation with divisions and conflicts, but a nation committed to justice, equality and full political capacity. The Supreme Court, it turns out, in practising lawyers’ craft enabled Canadian statecraft.

At the time of the Patriation Reference, Roy Romanow was Saskatchewan’s attorney general and John Whyte was a constitutional adviser to the Saskatchewan government.

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