L. Ian MacDonald speech to the Calgary Congress

Some readers have asked for L. Ian MacDonald’s speech after I reviewed it last week.

I’ve received the go-ahead, so here it is:

There are two constitutional traditions in Canada, the British North America Act of 1867 and the Charter of Rights and Freedoms of 1982. One gave birth to our country the other has had a transformational effect on it, arguably far beyond the intent of its framers.

The first is fundamentally about the division of powers in sections 91 and 92 of the BNA Act, as well as the asymmetrical nature of the federation in sections 93 and 133, among others.

The second is fundamentally about individual rights, security of the person in article 7 and equality rights in article 15 of the Charter, as well as the symmetrical nature of the federation. The notion of the equality of the provinces is apparent in the unanimity required by part of the amending formula. Parliament and nine legislatures could vote to abolish the Crown, but the 10th PEI, could veto the constitutional amendment.

In other words, Canada is two mints in one.

In the BNA tradition, Ottawa’s powers are invested in section 91, the POGG, peace, order and good government. Defence, foreign affairs, international trade, the economic union. The powers of the provinces are in section 92, including health care, daycare, and cities.

As for asymmetrical federalism, it was not created with the Health Accord of 2004. It’s found in section 93 of the BNA Act. enabling confessional schools in Quebec and, later, Newfoundland. And in section 133, recognizing French and English as the languages of the courts and legislature in Quebec.

This is classical federalism, federalism as it was intended by the fathers of Confederation. Without the division of powers. without the asymmetrical features to accommodate Quebecs Catholic and Protestant denominations, and its English-language minority, Sir John A. Macdonald would not have been the father of our country.

Where fault lines have surfaced in the federation in the last 40 years, it has usually been because Ottawa has used the federal spending power to occupy areas of exclusive provincial jurisdiction. This is centralizing federalism, and for decades it has fanned the flames of separatism in Quebec and alienation in Alberta.

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.

After a quarter century of Charter ascendancy, we are experiencing a renewal of our BNA inheritance. What Harper is proposing, and implementing, isn’t “open federalism”. It’s classical federalism.

The most important thing he said in his Quebec City speech last December wasn’t his promise to address the fiscal imbalance, it was his pledge not to invoke the federal spending power in provincial jurisdiction without the approval of a majority of provinces.

His campaign platform of five priorities gave Quebecers something to consider. But the Quebec City speech gave them a respectable place to go. Where Paul Martin had initially tried to “referendize” the election into a choice between federalism and separatism; where Gilles Duceppe at first appeared to be within reach of 50 percent of the vote, a moral majority never attained by the sovereignty movement in any provincial or federal election or referendum; Harper instead offered another choice–classical federalism in the BNA tradition.

In the event, he smashed the polarization between the Liberals and the Bloc, exposing their symbiotic relationship, releasing Quebecers from 15 years of captivity by two parties that had made the previous four elections a question of country. In a family feud that had been going on for 30 years, since the time of Trudeau and Levesque, it actually helped Harper’s cause that he was not a member of the family, but a prospective son-in-law. He seemed like a nice young man, he spoke good French and flattered the family by saying “Quebec is the heart of Canada.” He had a good job with the government, with prospects of advancing straight to the top.

He articulated his sense of classical federalism in his interview in the March issue of Policy Options. It is worth quoting at length:

“It’s always been my preference to see Ottawa do what the federal government is supposed to do. . .Ottawa has gotten into everything in recent years, not just provincial jurisdiction but now municipal jurisdiction. And yet at the same time if you look at Ottawa’s major responsibilities, national defence, for example, the economic union, foreign affairs, beginning obviously with the most important relationship, with the United States, Ottawa hasn’t done a very good job of these things.”

This is all about the division of powers. And his first appointment to the Supreme Court was revealing of Harper’s sense of the importance of what he has called “judicial temperament”. In his appearance before the parliamentary committee, Marshall Rothstein said the first thing he learned in law school was the division of powers.

You could almost hearing the cheering from the PMO.

The next Supreme Court vacancy will not occur, in the normal course of events, until 2013. But in the meantime, Harper has the opportunity to shift the judicial balance of power back to the first principle of classical federalism–the division of powers–by making judicial temperament a standard of his appointments to the superior courts and courts of appeal, as well to the Federal Court and the Federal Court of Appeal. If he is able to secure a second term in office, particularly if he wins a majority, his appointments to the bench will be notable as an exercise in classical federalism.

Harper’s stance as a classical federalist puts him in the Conservative tradition as the BNA party, in a line that stretches from Macdonald to Mulroney. As classical federalists, all have understood that the provinces are their partners in Confederation, not the vassals of Ottawa.

In the case of Brian Muironey, the Meech Lake Accord was nothing more or less than an attempt to reconcile the asymmetrical features of BNA federalism with the Charter by recognizing Quebec as a distinct society within Canada.

I don’t know whether Meech failed because it was badly explained or simply misunderstood. Maybe both. The distinct society was part of a duality clause recognizing the existence of English-speaking Quebecers and francophones elsewhere in the country as “fundamental characteristics” of Canada. In other words, the distinct society would have been interpreted by the courts in light of the duality clause. Brian Dickson, then chiefjustice, later said the Supreme Court would have had no problem with it. And Roger Tasse, who as deputy minister ofjustice actually wrote the Charter in 1981, later as a consultant told Prime Minister Muironey at the famous 1987 all-night Langevin meeting that it did not confer any special status on Quebec.

So, the Conservatives are the party of classical federalism, and the Liberals the party of centralizing federalism, pushed even harder in that direction by the NDP in the minority periods of 1963-68 and 2004-06.

The Pearson years were a period of remarkable achievement–the Auto Pact as the precursor of Free Trade, the Canadian flag, and a body of social policy legislation that includes the Canada-Quebec Pension Plans and Medicare. All in two minority Houses, with John Diefenbaker tormenting Pearson nearly every step of the way.

The CPP-QPP was made possible only because of the statesmanship and the sense of Canadian compromise between Prime Minister Pearson and Premier Lesage. The national pension plan would be fully portable, but Quebec would have an opting out with full compensation. It thus participated in a national program on an asymmetrical basis, but gained control of its economic levers, creating the Caisse de Depot et Placement du Quebec, today a national powerhouse, with asserts of $180 billion at the end of 2005. It is the greatest success story of the Pearsonian era of “cooperative federalism.”

But then on Medicare, initially a 50-50 funding proposition between Ottawa and the provinces, this occupation of provincial jurisdiction would take an ominous turn for the provinces in 1978 when the feds unilaterally switched to a block funding formula. At one point, after the cuts in the 1995 budget, the federal share of health care spending fell to as low as 17 percent. When Quebec Premier Jean Charest attended the 2004 health care summit, he noted that nearly 75 percent of his government’s new investments were in health care.

Flash forward to 1980 and the National Energy Program. What was the NEP if not a famous, or infamous, example of Ottawa unilaterally occupying an exclusive provincial jurisdiction– non-renewable natural resources? There is no better example of centralizing federalism, or what even many federalists in Quebec denounce as “domineering federalism.”

By the way, had there ever been an NEP for renewable resources, namely hydro-electricity, that would have been a a big winning condition for a Quebec referendum.

Then consider the 2004 campaign platform of Paul Martin’s Liberals. Their top three priorities were: waiting times in health care, daycare and cities. All were in provincial jurisdiction. The Martin program wasn’t even motivated by conviction, it was driven by polls and focus groups. The federal spending power, and the federal surplus, were being used to occupy provincial jurisdiction. But since the 91 guy was invading 92 turf, Martin had no choice but to negotiate agreements and cut checks to the provinces.

So Harper’s pledge not to invoke the federal spending power in areas of provincial jurisdiction, without majority provincial support, is at least as welcome in Quebec as it is in Alberta. And the initiative of this conference, proposing to limit the federal spending power to Ottawa’s own jurisdiction, would find just as much support in Quebec as in Alberta.

Welcome to the new Quebec-Alberta alliance, firmly rooted in nearly 140 years of Canadian constitutional tradition, the BNA tradition, the tradition of classical federalism upon which our country was founded.

That doesn’t mean there aren’t shared jurisdictions, such as the environment. Clearly, there’s no solution on climate change without federal-provincial cooperation. Emissions don’t stop at provincial boundaries, or national borders. It doesn’t mean there isn’t an appropriate role for the federal government in funding research in higher education, which has developed in constitutional convention and which is crucial to Canada’s world competitiveness. No serious student of our constitutional affairs is a strict constructionist in the American sense of the word.

But there is now a second constitutional framework, the Charter, grafted onto the first. We know what Sir John A. accomplished with the asymmetrical arrangements of the BNA Act. The terms of union were the first great Canadian compromise, bringing together two founding language communities, one a majority in the country, and the other the majority in a founding province.

What was Pierre Trudeau trying to achieve with the Charter? He wanted to entrench official languages, minority language rights, and gender equality rights. These were the hallmarks of his premiership. But the Charter is not noted or controversial for any of those features. Nor is it often tested for Article 2 on freedom of speech and association. Even God isn’t controversial, perhaps because He’s only in the preamble.

No, the great Charter cases have notably been about the security of the person, article 7 and especially equality rights, article 15. The framers were notably silent, for example, on same sex marriage, but the courts have subsequently spoken for them on equality rights. You could call this judicial activism, or you could call it judge-made law, but absent Ottawa or the provinces having the courage to invoke the notwithstanding clause, the court, not parliament, has the last word.

The Charter has spawned a cottage industry of litigation, resulting in an entirely new body ofjurisprudence. In the US, they litigate over whiplash. In Canada, we now litigate over equality rights. And uniquely in the world, the federal government has paid litigants to bite the hand that feeds it through the Court Challenges Program. In shutting it down this week, the government told interest groups they were free to litigate on their own time, but not on the taxpayers’ dime.

Most of these interest groups, from LEAF to EGALE, not to mention the Canadian Prisoners Rights Network and the Canadian Committee on Refugees, are clearly on the left of the political spectrum, and they have made interest group litigation a permanent feature of our constitutional and legal affairs.

As Tasha Kheiriddin and Adam Daifallah have noted in their book, Rescuing Canada’s Right: “Between 1988 and 1998 organizations presented 819 claims and intervened in 30 percent of cases heard by the Federal and Supreme Courts.”

In bills drafted in Ottawa, the department of Justice routinely advises the government where there might be what are delicately referred to as Charter considerations.

So, get over it. Get on with it. And get with it. You can make it work for you on the right, as they have made it work for them on the left. Let a hundred Challouis bloom.

But remember, Canadians are profoundly attached to the Charter. They see Charter values as the greatest expression of Canadian values. No sensible political movement or party would get between Canadians and the Charter.

The Martin Liberals twice attempted to put Stephen Harper between Canadians and the Charter, successfully in 2004, unsuccessfully in 2006. In June 2004, when his campaign was in trouble, Paul Martin spoke to a woman’s group in Toronto and said, “I will defend the Charter of Rights.” The implication was that Harper wouldn’t, and Martin successfully changed the conversation, making it about his opponent rather than him.

He tried it again in the English-language debate last January, when he opened with a constitutional Hail Mary, inviting Harper to join him in renouncing the federal government’s use of the notwithstanding clause. His unspoken insinuation was that Harper might invoke it to limit a woman’s right to choose. Harper’s unruffled response, that the Canadian constitutional tradition was an appropriate balance of British parliamentary paramountcy and the supremacy of the courts in America, defused a potentially dangerous moment.

Yet it was a remarkable spectacle: a sitting prime minister, whose job is to uphold the ultimate authority of Parliament, offering to relinquish his ability to uphold it.

And why? Because no prime minister, Liberal or Conservative, has ever invoked the notwithstanding clause.

The irony is that without the notwithstanding clause there would have been no Charter, as Peter Lougheed has pointed out in his interview this month with Policy Options.

“The notwithstanding clause was the deal maker,” as he said. “There would have been no Charter without it.”

Only the provinces, notably Quebec and Alberta, have had the political fortitude to use it. In legislating a settlement with hospital workers, Lougheed warned them in the bill that he would invoke it if they took him to court. He didn’t need to, because he won those cases, all the way to the Supreme Court. And then Quebec famously invoked it in 1988 to override a high court decision on the language of signs, which resulted in the override being widely discredited in the rest of the country because it limited minority language rights and freedom of expression

But Ottawa has never used the notwithstanding clause, not once in a quarter century, although Pierre Trudeau, in a letter to Cardinal Emmett Carter of Toronto, once threatened to do so if a woman’s right to choose was upheld under article 7 on the security of the person.

And if the override is never used, the question then arises as to its legitimacy. At the end of the day, like the power of disallowance in the BNA Act, it could simply fall into disuse.

But if the POGG affirms Ottawa’s powers in the BNA tradition, so does the notwithstanding clause in the Charter. It is there for a reason. It is there to be used. Perhaps this prime minister will have an occasion to do so. He should be encouraged to do so. One possibility is the case of nearly 150 AIDS patients who failed to leave the country after the International AIDS Conference in Toronto, and are making refugee claims that are certain to be tested in the courts. Were the court to rule in their favour, the government would have a good opportunity to invoke the notwithstanding clause, and once invoked its use would be unprecedented.

So to return to the constitutional metaphor of Canada as two mints in one. The Charter is the candy mint, the BNA is the breath mint and the Constitution Act of 1982 is two mints in one.

But it’s important that they be understood, and interpreted, with a sense of balance, and the spirit of Canadian compromise.

The balance of 1867 was apparent in the division of powers, the compromise apparent in the room found for Quebec’s minority within Canada and its English-language minority within Quebec. These were the deal makers in one century. BNA federalism, division of powers federalism, classical federalism, is on the march again in another century. And if Harper wins a second mandate, it may result in a welcome re-balancing of the federation.

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.

The candy mint and the breath mint. Two mints in one.

L. Ian MacDonald is Editor of Policy Options, the magazine of the Institute for Research on Public Policy.