This weekend, I find myself in Calgary for the Calgary Congress put on by the Citizens Centre for Freedom and Democracy. The conference is a discussion on Renewing the Federation, filled particularly with discussion on the topics of equalization, senate reform, provincial jurisdiction and ‘rebalancing’ of federal power. The attendees certainly consists of conservatives from the Reform tradition of the Conservative Party, but a number of constitutional scholars, activists and bloggers are also present.
On Friday night, L. Ian MacDonald inititated much discussion and debate with his very academic speech on the duality of Canada’s constitutional traditions, namely the British North America Act and the Charter. He described the two Canadian constitutional tradition as ‘two mints in one’. Here are a couple of excerpts:
“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.”
“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.”
Macdonald went on to outline the examples of the centralizing federalist failure of the National Energy Program and the classical or “cooperative” federalist success of the QPP and the Caisse de Depot et Placement du Quebec.
Harper’s non-encroachment of the federal government on provincial areas of spending is a uniting force between the Quebec and Alberta, Macdonald argued. The re-introduction of BNA tradition is what is driving Conservative success in Quebec.
The notwithstanding clause of the Charter and how it allowed Trudeau to patch constitutional tradition in this country was another feature of Macdonald’s speech. Indeed, as he quoted Peter Lougheed, the Charter wouldn’t have existed without the notwithstanding clause and Macdonald argues that the clause actually protects the spirit of John A. Macdonald’s BNA tradition of respecting the differences of provinces with the federal government whether legislative or judicial.
Macdonald’s speech certainly refreshed my perspective on constitutional matters and particularly the rationale and purpose of the notwithstanding clause. It was certainly ironic to note that Paul Martin, the self-proclaimed defender of the Charter sought to remove its reason for being during the last election. It was a dough-headed move to appeal to an emotional electorate faced with a potential PM that might change the status quo on hot button issues and for constitutional scholars it was a desperate move that indicated that Martin either didn’t respect or understand (the former is the obvious conclusion) the constitutional traditions of Canada.
UPDATE: For those that are interested in the full-text of the speech, you can find it here.