A better way to fix Canada
Thursday, 01 December 2005

A better way to fix Canada

Most people assume that only by electing better federal politicians can we fix Canada’s malfunctioning federal system.

They picture Canadians from coast to coast banding together to set things right. No more would Ottawa be inept, corrupt, divisive and intrusive. No more would it set east against west, urban against rural, and province against province.

No more would westerners fear what Ottawa might secretly be planning to seize a larger share of resource wealth.

But it’s a fantasy. The failure of the Reform Party in the 1990s proved it. The conflicting interests and attitudes of the various regions perpetuate the kind of federal government that now exists.

As for provincial governments, they have even less power than national political parties to change the system.

Except in one vitally important respect.

Provincial governments have power over the Canadian Constitution. They can change the country by changing the Constitution -- the ground-rules of Confederation.

In fact, anything short of constitutional change amounts to time-wasting and tinkering. What one government reforms by ordinary legislation today another will deform tomorrow.

It’s different with the Constitution. Though hard to change, it’s virtually impossible to change back.
In this report we will discuss how provincially-driven constitutional change could happen, and what it should include.

For instance, picture how much better Canada would work with…

An elected, equal and effective Senate

And not just elected -- senators elected by provincial parties, who don’t take orders from national party leaders in the House of Commons.

This would put federal governments under pressure they have never faced before.

For instance, as this is being written, the Martin government (with support from the NDP and Bloc) has pushed Bill C-11 through the House of Commons. The Bill purports to help civil servants report corruption such as the sponsorship scandal.

But in reality, as numerous experts and news media have pointed out, the new Bill will make it harder, not easier. It’s not designed to prevent a future sponsorship scandal from happening, only to prevent Canadians from hearing about it.

Bill C-11 is now before the Senate, which (in theory) has the constitutional power to veto it indefinitely.

However, the Senate won’t do so, because all senators are political appointees, and 65% of them are Liberals.

But if they were provincially elected, two-thirds would not be federal Liberals and they would not pass Bill C-11 without major improvements.

An amendment to the Constitution Act 1867 would force a permanent end to this ridiculous Senate charade.

But let’s not stop there. Imagine a Canada with…

A constitutional restriction on federal taxation and spending

This past spring, to shore up its tenuous parliamentary minority, the Martin government hiked federal program spending by 15% -- the largest one-year increase in thirty years.

Business groups lamented that the difficult spending reforms of the previous decade had been wiped out overnight.

Almost all of this spending increase went toward federal intrusion into provincial constitutional responsibilities.

For example, the Martin government is creating a new role for itself in urban development and early child care. Both jurisdictions are exclusively provincial according to the Constitution.

And they should be. It’s not that Ottawa can do miraculous things for Canadian cities and Canadian parents they couldn’t do better for themselves if Ottawa reduced its taxes.

A gaping hole in our Constitution lets them do it. There is no restriction on how a federal government may spend money, or how much it may tax. Ottawa’s “spending power” lets it force its way into non-federal jurisdictions like health, gaining the political credit without taking political responsibility.

We need a constitutional amendment which confines federal taxation and spending to federal areas of jurisdiction -- such as defence, immigration, penitentiaries, foreign affairs and Indian Affairs.

If federal politicians were constitutionally prevented from distracting themselves with provincial concerns like health care, welfare, job creation, education and culture, both levels of government would be more accountable and do a better job.

But why stop there? Imagine a Canada where…

Citizens had the final say over the Charter of Rights

Canada adopted U.S.-style constitutional rights with Pierre Trudeau’s “Charter of Rights and Freedoms” in 1982.

The Charter codified our traditional rights (freedom of speech, belief and assembly, the right to vote, etc.)*, and let judges rather than elected representatives decide what these rights mean, when they apply and when they don’t.

*Footnote: The only major right missing from the Charter is the right to property, which still exists, at least in theory, in ordinary statute and common law.

Unfortunately, judges are not always judicious.

True, Charter section 33 allows elected governments (with some difficulty) to override rights that a court has chosen to invent. But politicians are justifiably loath to be seen “taking away rights” by invoking the so-called “notwithstanding clause.”

The real question is, however, who’s to decide when a particular Charter right reasonably applies and when it doesn’t?

Since the Charter took effect 23 years ago, Canadian judges have given the criminally accused and convicted even more rights than American criminals, and we have become one of the most liberal criminal law jurisdictions in the world.

For example, a 1990 Charter ruling (under section 11) about timely trials led to the dropping of 43,000 criminal charges in Ontario, including murder, manslaughter and sexual assault. They just let them go.

Other cases -- and whole categories of cases -- have been thrown out when a single judge decided to invoke the Charter to change rules about arrest warrants, collection of evidence, use of informers, and burden of proof.

Under the Charter judges have become increasingly high-handed and unaccountable. The Supreme Court invented for itself a power to rewrite legislation (“reading in”). It has invented new aboriginal rights, immigration rights, and sexual rights.

To protect their “judicial independence,” judges have even determined how governments will set their own pay, with the not-surprising result that they have become the country’s highest-paid occupation, according to Statistics Canada.

There is no sign of this ending. The next big issues for judges to decide will likely be lowering the age of sexual consent and setting new limits on religious free speech.

Blatantly missing from the rights question is any direct reference to public judgment. The constitution is supposed to reflect the values, beliefs and priorities of the Canadian people, not just those of the legal elite.

We should amend Charter section 33 to state that in those rare but important cases when courts and politicians disagree about what the Charter means, the question will be settled by a public referendum in the next general election.

How all this could actually happen

An amendment to the Canadian Constitution originates as a resolution from any legislature, provincial or federal.

If within three years the proposal gains enough consent from other legislatures, the Constitution is changed. If the time runs out, as it did with the Meech Lake accord on June 23, 1990, the amendment dies.

Most changes, including everything proposed here, require the approval of the House of Commons, and seven provincial legislatures representing at least half of Canada’s population.

This means an amendment must satisfy either Ontario or Quebec, plus six other provinces. (The Senate can block an amendment for up to six months, but can’t kill it.)

What Alberta could propose

Let’s say the government of Alberta passed a constitutional resolution to do the following:

  • establish a Triple E Senate

  • stop Ottawa from taxing or spending for social and economic purposes

  • take regional transfers away from Ottawa, to be negotiated instead between the governments of “have” and “have-not” provinces, represented equally

  • transfer taxation and control over EI, CPP, Equalization and health standards to the (all-province) Council of the Federation

  • reduce Ottawa’s role in shared jurisdictions such as environment and culture, and transfer to provinces the right to license locally-important things like fisheries, charitable status and broadcasting

  • increase Ottawa’s power to facilitate movement of people, commerce, services and investment between provinces

  • transfer to provinces the right to appoint their own judges, as in most other federal systems in the world

  • require that any Charter impasse between courts and governments be resolved by referendum

All of the above is based on the federal principle of vesting power and responsibility at the lowest practical level. It would heavily shift authority to provinces.

But would other governments -- even provincial governments -- support it?

How other governments would probably react

Remember, there is a three-year deadline for the amendment to be accepted, altered or rejected. It can’t drag on forever.

There is much on this list that all provinces would like, such as control over their own internal development.

The four “have” provinces (Alberta, Ontario, B.C. and Saskatchewan) would also welcome the idea of taking control of regional transfers away from Ottawa, to be negotiated among provinces.

The so-called “have-nots” (Quebec, Manitoba and the four Atlantic provinces) would resent having to plead for support which is now theirs by right from Ottawa and goes in only one direction -- up. But if the “haves” provided a firm guarantee of future support, the “have-nots” might accept it on the grounds that they gain greater say over how it’s spent.

Quebec would support the expansion of its own provincial powers, but would probably balk at equal representation of provinces in the Senate, as would the government of Ontario.

It would make for intense and interesting bargaining. In fact, the provinces would be creating Canada anew, as they did in the 1860s.

What about Ottawa?

The federal government, being the clear loser, would want nothing to do with any of this. But if the strongest provinces united, they would force the federal government to the table.

Two factors have arisen in the past generation which would tilt the odds in favor of the provinces: growing separatism, and constitutional referendums.

With the Charlottetown Accord in 1992, the precedent was set that major constitutional proposals go to a national referendum. Even if Ottawa refused, provinces themselves could hold them, and Ottawa could not afford to ignore them.

The steady rise of separatism in Quebec and the West, especially Alberta, would heavily influence the result.

In Quebec, 40% voted for more sovereignty in 1980, and 49% in 1995. It now appears likely that within four years the Parti Quebecois will have regained power and will fight a third referendum, with renewed hope of success.

The same mood is rising in the West. Though a straight question about separatism usually gets only 10% to 15% support in Alberta, a poll in July found that 43% of Albertans (and 36% of westerners) think it’s time “to explore the idea of forming their own country.”

Confronted with a choice between watching Canada break apart, or preserving it as a looser union of provinces, most Canadians would probably vote to save it. And Ottawa would have no choice but to accept, as it did when the public rejected the Charlottetown Accord.

Taking the first big step

Comprehensive constitutional reform would benefit all Canadians, but those with the most to gain -- and the most to lose if Ottawa is not restrained -- are Albertans.

Unfortunately, Alberta’s present Conservative government has no interest in constitutional reform, and a lame-duck leader who says he intends to stay for two more years. Among the candidates likely to replace him, only one (Ted Morton) expresses any interest in constitutional reform, and has not gone nearly as far as this.

Throughout their one-century history, however, Albertans have always developed new ideas outside the Legislature. If existing parties are too wedded to the status quo to accept them, the politicians are quickly replaced, usually in the next election.

Albertans did this most recently in 1993, when they rejected all the Conservative MPs elected in 1988, and replaced them with Reform MPs.

The first step, therefore, is to convene a large public assembly in Calgary next fall to identify the principles on which constitutional reform should be based, and to launch a nonpartisan organization to promote the concept across Alberta and beyond.

To begin this new movement for national reform, the Citizens Centre for Freedom and Democracy has reserved a large facility at Calgary’s Westin Hotel for September 29 through October 1, 2006.

We are now working out the agenda for the event and arranging speakers, and we will be appealing early in the New Year for all reform-minded Canadians to attend.