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September 16 2020

Dive Deeper: Canada's Constitution

From establishing provincial control of security commissions, to medical assistance in dying, the Canadian Constitution shapes Canada’s laws and culture.

Of particular note in recent years has been Alberta’s contentious relationship with equalization. Alberta is a net contributor to the federal equalization program due to our historically high incomes and low tax rates, and despite experiencing several years of economic hardship. The debate has prompted diverse responses, including from notable politicians and economists such as Dr. Ted Morton and Dr. Trevor Tombe, who each see this issue differently.

The Government of Alberta promised to hold a referendum on the principle of equalization in 2021. Since Canada’s constitution lays out the principle of equalization, this will be another major constitutional conversation.

Equalization has major implications for the financial position of a province and impacts government spending, including on programs that support business. A referendum could also impact Alberta’s relationships with other provinces, which are important given that our province is landlocked and relies heavily on interprovincial trade for the success of many of our industries.

And, even if Albertans vote to change the principles of equalization, that doesn’t mean it automatically happens. While the equalization formula can be changed without a change to the constitution (as was done under the Harper government in 2009), Premier Kenney has promised a referendum related to the principle of equalization, which comes from, and is a part of, Canada’s constitution.

With all that in mind, let’s dive deeper into Canada’s constitution, how it can be changed, and the implications for equalization.

The rules for politics

Canada’s constitution is the set of written and unwritten rules for how politics works in Canada. These rules are supreme – any law that opposes the constitution is null and void. The constitution, according to scholars, defines our shared political values, as well as key relationships between different levels of government, between the executive, legislature, and judiciary branches, and between citizens and government. Importantly, the constitution also spells out exactly how we can go about changing it, which is important to our discussion about equalization.

Changing the Constitution

There are five amending formulas which outline how to change the constitution. For the purposes of equalization, there are two important takeaways. First, Alberta cannot unilaterally change the constitution. Second, to change or revise equalization, Albertans would need an act passed by Parliament and seven provinces representing 50 per cent of the Canadian population. Together, this formula suggests the need to get most of Canada onside, and that’s a tall order especially given that public opinion data show that three in four Canadians support equalization itself, and that number is actually on the rise in Alberta.

Section 36: The Principle of Equalization 

If a referendum is called next year, Albertans will have the opportunity to weigh in on section 36, the principle of equalization. Section 36 requires that the federal government remain committed to the “principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.” In doing so, the federal government, provinces, and territories commit to:

(a) promoting equal opportunities for the well-being of Canadians;

(b) furthering economic development to reduce disparity in opportunities; and

(c) providing essential public services of reasonable quality to all Canadians.

Therefore, in order to change the principles of equalization, the constitution and the principle that underpins the economic relationship between the federal government and the provinces would have to be fundamentally changed.

Beyond Equalization: The Four Parts of Canada’s Constitution

The constitution isn’t just section 36. The fundamental role of the constitution means that it ultimately influences all laws that we live by and the policy that impacts our personal and professional lives. Given its impact on law and public policy, we need to understand the constitution in its entirely.

Rather, those who study law and politics see it as four parts. Each part matters because, as mentioned earlier, the constitution shapes our shared political values, as well as key relationships between different levels of government, between the executive, legislature, and judiciary branches, and between citizens and government.

a.      Entrenched constitutional law 

Entrenched constitutional law codifies (or collects) the constitution in written form. In Canada, our entrenched constitutional law refers to both the Constitution Act, 1867 and Constitution Act, 1982. It is difficult to change even though it is often challenged in courts. Much of that litigation focuses on how best to interpret these documents.

b.      Non-entrenched constitutional law 

Non-entrenched constitutional law, or organic statutes, are laws passed by the Parliament of Canada that describe or clarify either the written or unwritten constitution. The Clarity Act is one example of a law passed by Parliament to address how many democratic votes are needed for separation, and in what context a province can leave Canada. While the main purpose of these laws is to describe or clarify either the written or unwritten constitution, they also provide a more effective means of developing the constitution because they can be debated in court and enforced.

c.      Judicial decisions and case law 

The language of the constitution is intentionally broad, which can make interpretation difficult. To help, judicial decisions and case law define what particular terms or phrases mean, and clarifies how that meaning changes between situations, or as our politics, values, and priorities change. Judicial decisions address this, however, only when someone – either private citizens or governments – sues on the grounds of different understandings of the constitution. This leaves the courts with the task of defining and applying the terms and phrases of the constitution to certain situations.

For example, courts will establish the role of each level of government and what happens if a government wants to legislate in an area that is in the jurisdiction of another level of government.

Providing clarity on complex challenges such as these is important, as it helps us apply the constitution to different circumstances. In doing so, the judiciary are the referees that help us determine the constitutional rules.

d.      Constitutional conventions and norms 

The last component of the constitution is constitutional conventions and norms, which refer to unwritten rules that are implicitly agreed to by everyone. A key set of conventions in Canada are those of responsible government. The executive – the Prime Minister and Cabinet – must maintain the confidence (or approval) of the House of Commons. If the executive loses the confidence of the House, the Prime Minister (and Cabinet) must either resign or request an election. Maintaining the confidence of the House ensures the democratic accountability and control of the executive and its use of power. A related convention is also party discipline. Because the executive needs the confidence of the House, there is a strong incredibly expectation that individual MPs will vote together with their party. Both rules are unwritten but are agreed to and govern political life.

Canadian Charter of Rights and Freedoms 

If the constitution sets out the rules for politics that influences our laws and the policies in our lives, then Constitution Act, 1982 led to the most considerable change in those rules: the Canadian Charter of Rights and Freedoms. The purpose of the Charter was to entrench fundamental rights in the text of the constitution. The entrenchment of these rights is also important in a democracy where there is a constant tension between individual and collective rights. From a bird’s eye view, the Charter is several groups of rights that address both individual and collective rights. In 31 different sections, the Charter outlines enforcement of and reasonable limits to these rights; our fundamental freedoms; the democratic, legal, and equality rights of Canadians; and English and French language and education rights. At the same time, the Charter also discusses the rights of Indigenous peoples, that the interpretation of Charter is consistent with Canada’s multicultural heritage, and the right to denominational, separate or dissentient schools, and that these rights are guaranteed equally to both biological sexes.

Democracy and the Notwithstanding Clause 

As the world changes, Canadians can also express what they think the rules for politics in Canada should be. Although the judiciary are the referees that help us determine the constitutional rules of politics, Constitution Act, 1982 allows for the democratically elected legislature to, within limits, have the final say should it want to. Section 33, referred as the ‘notwithstanding clause’, allows a provincial legislature or Parliament to pass a law and declare it valid or “notwithstanding” the rights laid out in Sections 2 and 7-15 of the Charter.

With its inclusion in Constitution Act, 1982, section 33 has been the subject of intense debate. On one hand, the clause allows for the legislature, which responds to the opinions of Canadians, to have the final say. On the other hand, those opposed to section 33 point out that it weakens the entrenchment of the individual and collective rights included in in Sections 2 and 7-15 of the Charter.

Moving forward 

It will be hard to predict the conversations that will emerge in the lead up to a referendum on equalization, and what other politically contentious debates will involve the constitution. Whatever perspective an individual may hold, it is useful to consider the central importance of the constitution in establishing political rules, and the collective action and the agreement it takes to change it.