Thursday, October 12, 2006

L. IAN MacDONALD AND CANADIAN CONSTITUTIONAL TRADITION

Steven Taylor has posted a speech by L. Ian MacDonald at the recent Calgary Congress. It is a thoughtful speech to which I would like to add some additional and often opposing considerations.

MacDonald’s speech advanced two principle arguments and several secondary ones in support.

The principal arguments are that the Canadian constitution comprises two traditions, that of the British North America Act and that of the Charter of Rights and Freedoms. Further, MacDonald argues that the government of Stephen Harper represents the intellectual tradition, extending back to Sir John A. Macdonald, of ‘classical federalism’ based on the recognition of provincial rights, whereas the Liberals are the party of ‘centralizing federalism’ infringing on provincial rights. Finally, he argues that the Charter risks subverting the sovereignty of the federal and provincial legislatures and that these legislatures, particularly the federal, must be prepared to use the notwithstanding clause to maintain the balance of federalism.

My main point of disagreement with MacDonald is that he seems to conflate the threat of Liberal ‘centralizing federalism’ and the threat the Charter poses to the supremacy of Parliament as the same type of threat.

MacDonald argues says that,

“The Conservatives, from Sir John A. Macdonald to Stephen Harper, are the party of classical federalism. The Liberals, from Lester Pearson to Paul Martin, are the party of centralizing federalism.

The Conservatives are the BNA party. The Liberals are the Charter party."
The first two sentences I have no problem with, I would tend to agree (accept that Sir John was hardly a proponent of provincial rights, one of the secondary points I will come to later.) The third sentence, though I might agree with it on its own, when put in relation to the first two implies that the Charter has something to do with ‘centralizing federalism’ when it does not.

The British North America Act defined the rights of the federal and provincial governments in relation to one another. The Charter defined the rights of individuals in relation to the State.

The Charter has nothing to do with the threat of Liberal centralizing federalism because it can be used equally to overturn the laws of the federal and provincial legislatures and can do nothing to change the relationship between the federal and provincial powers regarding their respective rights.

To be fair, MacDonald seems to admit this much later in his speech, despite the problematic inferences early in his speech. MacDonald instead, by the end of his speech, infers that the similarity of centralizing federalism and The Charter is that they both threaten to ‘unbalance’ Canadian constitutional tradition.

Let us then examine this argument premised on the threat of ‘unbalance.’

1. The problem of centralizing federalism

I have little problem with MacDonald on this point. Certainly in the years following the Second World War the Liberals (who have generally been in power) have centralized federalism and encroached on provincial powers, while Conservatives (basically Mulroney) have been more respectful of the traditional division of powers and the role of the federal government in Confederation.

My principal disagreement, which is secondary to the main point, is that John A. Macdonald was not nearly the ‘classical federalist’ L. Ian Macdonald makes him out to be; but I will comment on this at the end. (Scroll down to the bold heading if you’re interested in that bit right now.)

2. The problem of the Charter

MacDonald doesn’t really get around to the problem of the Charter until the end of his speech, particularly when he sums up his argument as follows:
The balance of 1982 has been missing, largely because the essential deal maker of the Charter, the notwithstanding clause, has been silent, and risks being lost, unless parliament and the legislatures find the courage to assert their constitutional legitimacy over the courts.
After 600 words of preamble on my part, and about an equal amount on the part of MacDonald, we have come to the main point of contention, if not outright disagreement.

My divergence with MacDonald is the inference that the Charter adds a new element of debate to Canadian constitutionalism. This is only the case if one starts consideration of Canadian constitutional and intellectual history at Confederation, as MacDonald does. If we consider the important pre-Confederation and British antecedents we see that the addition of the Charter is simply a continuation of the debate surrounding the necessity to check the sovereignty of the executive in its powers over individual rights.

The debate goes back at least as far as the Glorious Revolution. With the success of the Revolution, the Devine right of the monarch was checked by the power of Parliament. This led to the solidification through the 18th century of the theory of mixed monarchy, of the Kings, Lords and Commons providing a balanced constitution and government.

Yet, critics began to worry that the Devine right of the King had simply been replaced by a Devine right of parliament. In 1765 Lord Chancellor Camden denounced the Declaratory Act as, “a bill, the very existence of which is illegal, absolutely illegal, contrary to the fundamental laws of nature, contrary to the fundamental laws of this constitution.” Similarly, Lord Blackstone denounced other legislation, “fundamentally opposite to the spirit of our constitution.” And of course, Lord Camden’s statement on the Declaratory Act reminds us of the example of the American Revolution where the American colonies protested the sovereign right of Parliament to legislate without consideration for rights believed to be inherent to the British constitution.


The debate over the need to check the sovereignty of parliament in order to preserve British liberties was also transferred to the colony of Upper Canada. In the 1820s and 1830s as the colonial executive, controlled as it was by the conservative elites of the family compact, continually disallowed legislation passed by the Legislative Assembly, Reformers called for the need to check on the sovereign power.

For years, the function of the jury had provided a certain check on the sovereignty of the legislature in Canada and parliament in England. In the common law tradition the rights of the jury to acquit on the basis of conscience and to thereby tacitly reject laws passed by the legislature was seen as a great bulwark for British liberties. Yet in the early decades of the nineteenth century the Upper Canadian elites used their power of patronage over local sheriffs to pack juries and subvert this check on the legislature. Patronage corruption and the packing of juries became a major complaint of the Reformers.

The debate is highlighted by a further example; when William Baldwin argued that the passage of the Sedition Act was unconstitutional, on the basis that it violated long-held British liberties, attorney general Christopher Hagerman responded that the law could not possibly be unconstitutional because it had been passed by the colonial legislature. The argument, obviously, was that the legislature by virtue of its existence and power could not be wrong.


All of these grievances culminated in the Reform campaign for Responsible Government. By the achievement of Responsible Government the executive’s sovereign authority was legitimized because it was held accountable by the legislature, which in turn was accountable to the freeholding electorate.

Responsible Government, of course, remains the basis of the sovereignty of parliament for which MacDonald advocates. However, the Baldwins and the other Reformers envisioned the executive held accountable by an independent legislature. Through the late nineteenth and twentieth centuries with the de-legitimizing of the senate, in combination with the powers of patronage and party discipline invested with the prime minister, a reverse of the original intent developed, in which the executive is able to dominate the legislature, particularly in majority parliament situations. Like the grand juries of the 18th century, today the principal check on the sovereignty of a majority parliament remains the courts with the powers invested in the Charter.

The Charter, when considered in the long history of debate over the sovereign power of the executive and parliament, is not a new aspect of Canadian constitutionalism. MacDonald argues that the Charter must be considered in the spirit of balance that has shaped the Canadian constitution. While I agree with that, the factors that contribute to that sense of balance, particularly the balance between the State and individual rights, date back much farther than Confederation.

Posted by Matthew @ 5:02 PM