Our nine-person amending formula
Over the past year, the people of Canada have undertaken an important remaking of our constitution. We have given constitutional status to the Supreme Court, created a constitutional right to strike, and created a constitutional right to assisted death, among other changes.
That we have done all this in such a concentrated span of time contradicts the claim that our constitution is the hardest to amend in the world.
How have we done so? By employing a clever strategy. We have avoided the politically fraught constitutional amendment process that requires the consent of the Commons, Senate and provinces and instead appealed to that straightforward constitutional amendment process called the Supreme Court of Canada.
This exaggerates an important truth: our constitution has undergone a number of important reforms, all at the hands of the Supreme Court. Lest one be the sort of activist whose support for judicial intervention is unapologetically a “sometime thing” — valid when the going is good, withdrawn when the going is not — there is reason to express reservation with how these reforms were brought about.
Those reservations are all the stronger when the Court’s reasons come up short and leave the impression of a Court guided less by the law than by its view of desirable outcomes.
In the Nadon Reference, the Court blocked not only a judicial appointment, but also eliminated Parliament’s ability to revise the criteria for appointment, ruling that essential features of the Court were now constitutionally protected.
The Court’s reasoning rests heavily on the following premises and conclusion. Premise 1: “The existence of an impartial and authoritative judicial arbiter is a necessary corollary of the enactment of the (Constitution’s) supremacy clause.” Premise 2: “The judiciary became the ‘guardian of the constitution.’ ” Conclusion: “As such, the Supreme Court of Canada is a foundational premise of the Constitution.”
Does this follow? No. Beyond the absence of relationship between the premises and the conclusion, it bears noting that the Supreme Court was only introduced, by Parliament, in 1875, some years after Canada’s founding in 1867. Claims about “foundational premise” are difficult to reconcile with history, a history otherwise appealed to by the Court to suggest that, over time, the Supreme Court “became constitutionally protected.” No one noticed until this judgment.
As these opinion pages have noted, the Court fares no better in its judgment introducing a right to strike. To overrule a trilogy of 1987 precedents, the Court refers to a selection of foreign jurisdictions and international law, in many instances citing to decisions or provisions that predate either the 1982 Charter or the 1987 precedents or both.
The impression that the only thing that explains the change of law is a change in the Court’s membership will not be allayed by how the Court formulates its conclusion: “It seems to me to be the time to give this conclusion constitutional benediction.” Few judgments are as transparent in staking the Court’s claim to be a roving law reform commission.
The Court’s own 1993 precedent on assisted suicide suffers a similar fate, being overruled because of changes in social science evidence over the last decade. When it comes time to evaluate just what that new social science evidence has to say about schemes for assisted suicide, however, the Court recoils from its own assessment, satisfying itself with: “We see no reason to reject the conclusions drawn by the trial judge.”
As a result of failing to engage with the evidence before it, the Court’s assertion that “the risks associated with physician-assisted death can be limited through a carefully designed and monitored system of safeguards” offers no comfort to Parliament that it will be able to fashion such a scheme, nor to those vulnerable persons at risk if such safeguards are imperfectly designed.
These three judgments were arrived at by votes of 7-1, 5-2, and 9-0. When the Court’s judgments are cogent and constrained by the law, there is no reason to have recourse to head counts.
But when the Court’s judgments come up short and give the impression of making new law that can only be undone by way of constitutional amendment, we have reason to question whether we are best governed in this way.
Our constitution provides for its own amendment process and, for the most part, ensures that amendments are difficult to achieve. The lessons of Meech Lake and Charlottetown have cautioned many against pursuing constitutional re-negotiations again.
But all this can be avoided by appealing to a Court whose fidelity to its own precedents is weak and whose understanding of its role is constrained less by the law than by its view of what is best for the country and the constitution.
How can we claim that our Constitution is difficult to amend? The Supreme Court amends it all the time