Evidentia

Constitutional bear trap

I would like to return to a point I made in the previous blog, where I said that the amending formula of 1982 makes any significant change to the Canadian Constitution practically impossible, as if a bear trap had been placed within the supreme law of the land. It may seem odd to use this metaphor in describing the amending formula of the Constitution of a country. Nonetheless, you only have to look at the unsatisfactory record of constitutional reform in Canada since 1982 to see what I mean.

Most proposed amendments to the Constitution need to be approved by the federal Parliament and two-thirds of the provinces with at last 50% of the population. Proposed amendments relating to a specific province need only be approved by that province alone. The unanimous consent of all 15 federal, provincial and territorial legislatures is required for many fundamental matters, however, such as changing the make-up of the Supreme Court of Canada, changing the process for amending the Constitution itself and making any change to the offices of the Head of State (the Monarch, currently Queen Elizabeth II) and the Governor General.

So even when it comes to amending the process of amending the Constitution, we are caught in the bear trap. The most fundamental changes which any country ought to be able to make to its Constitution are unthinkable in this country. Every legislature has a veto, with the result that everyone is caught in the bear trap. If the two Houses of the British Parliament wanted to abolish the monarchy, they could do so with relative ease (although they may not want to, at present). But with the current amending formula, Canada could only abolish the monarchy by waiting for the British Parliament to act first, or by watching the royal family wither away. This is absurd.

Grizzlies in nature are beautiful – yet we are all caught in a bear trap

I can think of 10 successful amendments since 1982: one amendment strengthened aboriginal rights in the Constitution, seven involved particular provinces alone, one changed the formula for representation in the House of Commons, and one established the territory of Nunavut. None of these amendments is  insignificant, but all are certainly modest.

Of the failed attempts to amend the Constitution, however, the Meech Lake accord of 1987-1990 and the Charlottetown accord of 1990-1992 were traumatic and even existential disasters, whose defeat  signaled the definitive end of significant constitutional reform in this country. In both of these cases, it took just a single voice to block adoption in a legislature, whereas the unanimous consent of all legislatures was required.

A single Polish noble could rise in the assembly, and call out Liberum veto (I freely forbid), in order to disrupt the proceedings

Another analogy comes to mind. In the Polish-Lithuanian Commonwealth of the 17th century, a peculiar institution came into being. Sessions of the Sejm, or assembly of nobles, could be broken up by a single noble rising to call out liberum veto, that is I freely forbid. In a way this individual veto could be seen as a way of standing up against the tyranny of the majority – something which Tocqueville would denounce two centuries later. But giving an individual nobleman a veto also had profoundly negative consequences. It paralysed proceedings of the Sejm, made it practically impossible to reform the Constitution of the Commonwealth, and left the country at the mercy of individual noblemen who represented special interests not to mention foreign influence. No wonder Poland was partitioned by its stronger neighbours.

I am not predicting any foreign invasion of Canada! But I find it appalling that parliamentarians would deliberately lock the country into a bear trap, constitutionally speaking, that is.

Although constitutions naturally need to be amended from time to time, no politician in Canada dares bring up the topic, since attempts at overarching amendments are doomed to backfire