Dec. 2: The Political Dynamics of

Constitutional Reform 1981-Present

• Senate Reference [Kit, p. 316]• A. Cairns, “Constitutional Change…” [Kit, p. 138]• R. Gibbons, “Shifting Sands…” [Kit, p. 163]• Patriation Reference [Kit, p. 318]• Meech Lake and Charlottetown Accord [Kit, pgs. 375 and 378]• Resolution on Recognition of Quebec… [Kit, p. 389]• An Act Respecting Constitutional Amendment [Kit, p. 390]• A Framework to Improve the Social Union… [Kit, p. 392]• Reference re. Secession of Quebec [Kit, p. 337]• Alan Cairns: Constitutional Change and the Three Equalities [Kit, 138]• K. McRoberts, Misconceiving Canada, Chapter 9, “The 1995 Quebec

Referendum” [Kit, p. 151] • P. Hogg, “The Duty to Negotiate” [Kit, p. 178]• Gall, Ch. 13, and Bogart, “The Administrative State and Judicial Review

(182)”

Main Events surrounding Patriation controversy

• Balfour declaration: 1926• Statute of Westminster: 1931• Quiet Revolution: 1960 +• Trudeau becomes PM, 1968• Victoria Charter: 1971• Senate reference: 1979• Quebec referendum: 1980• Negotiations re patriation &

Charter, 1980-81• Unilateral attempt to patriate

by Trudeau, 1981

• Patriation reference, 1981• Agreement of Nov. 5,

1981 (Que not inc’d)• Canada Act signed, April

1982• Quebec veto ref, 1982• Meech Lake Acc, 1987-

1990• Charlottetown Accord,

1992• Quebec referendum:

1995

Main events (2)

• Resolution on recognition of Quebec as a Distinct Society (1995)

• Act respecting constitutional amendment, and resolution to recognize Quebec as a “distinct society.” (1996)

• Calgary Declaration (1997)

• Quebec secession reference (1998)

• Social Union Framework Agreement (1999)

• Clarity Act (2000)

Senate Reference (1979)

• Already discussed in class on cooperative federalism, Nov. 4/05

• In 1978, the Trudeau government floated a “trial balloon,” a paper on Senate reform. Possibilities included abolishing the Senate, or changing it into a “house of the provinces” where half of the Senators would be chosen by the provincial legislatures or governments.

• Does Parliament have the ability to change the Senate in any of these ways? Reference question sent to Supreme Court.

• Answer by “the court” (Laskin, CJ): No. To change the Senate is to abolish the current Parliament (H of C, Senate, Queen) and replace it with a new Parliament. That requires a constitutional amendment by UK Parliament [after 1982, through the unanimity formula].

Patriation reference (1981)

• Would the proposed amendments affect provincial powers: Yes (unanimous)

• Is there a convention of provincial consultation?– Yes: Martland, Ritchie,

Dickson, Beetz, Chouinard & Lamer (substantial, not unanimous)

– No: Laskin, Estey & McIntyre: No

• Has the convention hardened into constitutional law?– No: Laskin, Dickson,

Beetz, Estey, McIntyre, Chouinard & Lamer

– Yes: Martland & Ritchie

Alan Cairns: three equalities [Kit, 138]

• Citizens• Provinces• Two nations

• Debate over assymetrical federalism

• Charter: a constraint on federalism

• Charter’s popularity in Quebec

Meech Lake Accord

• Meech Lake Accord:– “distinct society” clause– “constitutionalize”

immigration agreements– Provinces submit names

for vacancies to SCC– Any province can opt out of

a shared cost program in areas of prov. jurisdiction & receive compensation if the province operates a similar program that meets “national standards.”

– Compensation provided for any province opting out of any constitional amenendment under 7-50 formula that transfers prov powers to Ottawa.

• Additions:

– Senate reform: prov’s nominate Senators to begin with

– First ministers conf on economy annually

– Annual constitutional conferences to discuss Senate reform, fisheries and other matters.

Charlottetown Accord

• Everything in Meech Lake plus:– Canada Clause– Aboriginal rights

strengthened, including right to negotiate self-government

– Non-justiciable social charter

– Measures to strengthen s. 121

– Senate reform: 6 elected senators from each province, and 1 from each Territory, plus Aboriginal representation

– SCC appointments: feds can appoint if provinces don’t nominate.

– Guarantee of 25% of seats in H of C for Quebec

– Prov. authority in areas of prov. Jurisdiction strengthened.

– Fed powers of disallowance and reservation repealed

– Fed declaratory power limited; require prov. consent.

Social Union Framework Agreement (1999)

• All Canadians are equal

• Needs must be met everywhere

• Social programs should be adequate and sustainable

• Promote mobility within Canada

• Public accountability and transparency

• Evaluate results of programs

• Participative democracy• Funding predictability• Fed-prov consultation,

not unilateral action

Québec Secession Reference (1998)

• Stéphane Dion– Critical of “yes” side in

1995 referendum– Asked by PM to become

Min of Intergovernmental Affairs in 1996 & context by-election

– Proponent of “Plan B:” fed gov’t should be active in opposing Québec separatism.

• Guy Bertrand (a former sovereignist leader in Québec turned federalist)

– began a litigation process in which challenged the Québec government’s attempts to institute sovereignty on Charter of Rights grounds.

– Québec government tried to block Bertrand’s challenge, so fed gov’t continued the litigation through the reference (part of “Plan B”)

Québec Secession Reference (2)

• Argued in Feb, 1998– Québec gov’t wouldn’t

participate, so SCC appointed André Joli-Cœur as amicus curiae.

– Amicus argued that reference jurisdiction of SCC is ultra vires.

• Can an appeal court be given original jurisdiction? Yes.

• Can an appeal court advise? In Canada, yes (despite rule about no specific mention).

• Justiciability:– Too theoretical?

– Too political?

– Not ripe?

• Canada does not have as strict a separation of powers as U.S.

• Advisory opinion different from a litigated case.

Québec Secession Reference (3)

• Questions:– 1. Under Can Const, can

Québec secede unilaterally, without a constitutional amendment?

– 2. Under Int law, can Québec secede unilaterally?

– 3. If conflict between (1) and (2), which takes precedence?

• Why did SCC write such a lengthy judgment?

• 1. Can Québec secede unilaterally under constitution?– Arguments in favour based

on democracy.– What is democracy?– Our democracy is based

on shared values, and unilateral secession puts these at risk. Thus, duty to negotiate.

– Was SCC too activist, or not activist enough re “clear question” and “clear majority”?

Québec Secession Reference (4)

• 2. Does international law give Québec the right to secede unilaterlally?– Amicus: right to self-

determination belongs to all “peoples.”

– Do Québeckers constitute a “people”?

– SCC: not necessary to decide, because even if yes, the right only exists where a “people” is mistreated.

• right to only arises under international law where “a people” is governed as part of a colonial empire, “is subject to alien subjugation, domination or exploitation; and possibly where ‘a people’ is denied any meaningful exercise of its right to self-determination within the state of which it forms a part.”

Québec Secession Reference (5)

• Spring of 2000: Bill C-20: “An Act to give effect to the requirement for clarity….”– Within 30 days of a prov

legislature tabling a referendum question, H. of C. must declare whether question is “clear.”

– If question considered “clear,” and a majority votes in favour, H of C must determine whether majority is “clear.” Consider:

• Size of majority• Proportion voting• Views of political

parties• View of Senate

Québec Secession Reference (6)

• After SCC decision: PQ gov’t seemed to support decision.

• Jacques-Yvan Morin (former Québec intergovernmental affairs minister): SCC decision means feds can’t refuse to negotiate, but can put up many obstacles to Quebec secession.

• Kenneth McRoberts: The Trudeau strategy for Canadian unity has failed.

• Hogg: – Québec can no longer

claim that it can secede unilaterally.

– The “duty to negotiate” secession in face of a “clear majority” vote in favour in a province is unprecedented in world history.

Gall – last chapter

• New directions:– Is law the best way to

implement a public policy?– If so, think about federalism

issues in potential litigation. What mechanisms are there for cooperation?

– Technology• A tool for judges

• Education for lawyers and judges

• Electronic law library

• Public image of legal profession– Public education– Legal accountability– Case management, ADR,

mediation– Legal fees– Legal insurance– Continuing education (prof.

Dev. LLM at Osgoode)– Alternative careers for

lawyers– Law reform (Canada Law

Commission)

W.A. Bogart, Courts & Country, Ch 4 (The administrative state and judicial review, kit 182)

• Do courts promote a fairer society, or act as a roadblock to advancement?– Federal administrative

agencies (eg. CRTC, Hum Rts Comm): 640.

– Ontario: 36 reg bodies (eg. Lab rels bd,WSIB – ½ million claims/yr), 44 licensing appeal tribunals, 8 compensation boards, 19 arbitration agencies, 95 advisory boards.

• Leg’s try to keep courts from supervising admin agencies too closely. Why?

• Should courts intervene in admin trib’s rarely, when there are clear issues of fairness?

• Bogart: courts may be good, at times, in signaling unfairness, but are not usually good at finding solutions.

Review for Exam

• See review notes on web page

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