The death of United States Supreme Court Justice Antonin Scalia brought forward an interesting piece in the National Post, talking about a debate between Scalia and our own Supreme Court Justice Ian Binnie.
In the 2007 debate, Scalia railed against judge-made law, and judges adding elements to the constitution that weren’t written by the framers of said document. Binnie, since retired, but a member of a court couldn’t seem to find a day when they don’t add things to the constitution. He took the opposite side. The debate was on the occasion of the 25th anniversary of the Canadian Charter of Rights and Freedoms.
The thing that stood out to me is that the framers of the American constitution are two-centuries dead, having written it in the late 1700s. (All but one of their amendments were passed by 1971, and the most recent, passed in 1992, was proposed 202 years before.) On the other hand, the Canadian hand, many of our framers are still around, including guys like Roy Romanow and Jean Chretien. And during those first 10 years, when a huge amount of legalese was “written in” to our constitution, nearly all the framers were there.
Of course, it wouldn’t seem proper for the justices back then to give Pierre Trudeau a call and ask what he really meant by this section or that section. René Lévesque might have had a few choice words of advice to offer.
But then we would reach a logical impasse. If these framers, still alive in the 1980s, and a few still alive today, had meant to have included certain things in the constitution, they would have added them in the constitution when they had the chance. They didn’t. So if you ask them after the fact for clarification, and are told we didn’t include it for a reason, it begs the question of why you are asking in the first place?
Scalia felt that if you didn’t like your constitution, go ahead and amend it. The same could apply in Canada.
How many times have we successfully done that since the Charter was enacted? The Meech Lake Accord was a disaster, eclipsed only by the Charlottetown Accord. Henceforth and forever more any Canadian politician with two brain cells (and, believe it or not, that includes most) has not wanted to touch the constitution with a 10-foot pole.
Yet there are all sorts of things that need to be addressed now, likely through constitutional reform.
The key one is the Canadian Senate. It needs to change, or go. The current situation is untenable. Prime Minister Stephan Harper and now Prime Minister Justin Trudeau have been loath to appoint senators to fill vacancies. No one feels the senate is functional or appropriate these days. Premier Brad Wall, along with pretty much every NDPer in the country, wants to see it abolished. But no one can change it.
That’s because it is broadly felt letting the constitutional genie out of the bottle will open up scabbed-over rifts that we don’t want bleeding again. This largely includes everything around Quebec. There is little tolerance in the West now for any more concessions to Quebec, and much resentment for its continued vacuuming of equalization dollars (which have mostly come from the West). Instead of tackling one constitutional issue at a time, i.e. the Senate, the threat of unravelling what we do have has become too great.
What else has become too great is the power of the Supreme Court in contravening the wishes of Parliament. Almost the entire Conservative crime agenda over the past 10 years, passed by a duly elected Parliament, has been struck down by our Supreme Court. At what point do our Parliamentarians actually get to make laws these days that stick? It’s clear we no longer have a sovereign Parliament, but rather a supremacy of the Supreme Court.
I wonder if the same will occur when the current Trudeau government comes up with a new system of voting that will replace first-past-the-post? Will it survive its own inevitable Supreme Court challenge, or will this court strike down Liberal laws, too?
Maybe changing the way we vote should be voted on, first, in a referendum on a constitutional amendment.
