Reflections on Canadian Constitutional Culture

By David Schneiderman, Professor of Law

From the Spring/Summer 2016 issue of Nexus.

Red, White, and Kind of Blue? Canadians have long had a complex relationship with the United States. For the men who  framed the Canadian constitution, the American Civil War generated fresh evidence of the dangers of popular sovereignty. Learning from that distinctive American experience, the Canadian framers preferred to contain democratic impulses by building upon institutions, like a powerful executive and an appointed upper house, inherited from British parliamentary traditions. Though these institutions and practices continue to endure – features I associate with Canadian ‘constitutional culture’ – by the late-20th century, our gaze is directed more southward. Now, more than ever, Canadians are bound up in the cultural, economic, and political life of the United States, the cumulative effect of, to mention only a few things, CNN, NAFTA, and the Presidential primaries. Are we under threat of being absorbed into a larger North American polity under the sway of the most powerful state actor in the world today? If there remain differences between our two constitutional cultures, what is worth preserving in the face of the pressures to assimilate? Providing an answer to this last question is the task undertaken in my new book, Red, White and Kind of Blue? The Conservatives and the Americanization of Canadian Constitutional Culture (University of Toronto Press). In order to identify aspects of Canadian constitutional culture worth preserving in response to the forces propelling integration, the book triangulates between the constitutional traditions of Canada, the United States, and Great Britain. Before turning to an answer to the question posed, I should explain what prompted the writing of this book.

In the fall of 2008, I returned to Canada after having had the privilege of teaching U.S. constitutional law to first-year students at Georgetown University law school in Washington D.C. My family’s sojourn there happened to coincide with the second term of the presidency of George W. Bush. After the debacle in Iraq and the failed emergency response to Hurricane Katrina, confidence in the President had reached all time lows. The advantages of the parliamentary system over the presidential one were increasingly apparent. Yet, upon returning to Canada, I could hear arguments being made by the Conservative government then in power that were reminiscent of those that had issued out of the Bush II White House. During the course of two controversial prorogations, the Conservatives suggested that the people directly elect the Prime Minister and that the executive branch was not accountable to the House of Commons, propositions entirely at odds with British parliamentary traditions. Then there were initiatives like establishing an elected Senate, and revamping the Supreme Court of Canada appointment process by having nominees appear before a special committee of the House of Commons. All of this appeared to mimic U.S. constitutional rules and practices.  It appeared to me that that the Harper Conservatives were succumbing to the force of America's gravitational pull.  The book was born out of this intuition.

These strategies, it turns out, did not have much staying power. The Prime Minister abandoned holding public hearings for his last two Supreme Court appointments, returning to the secretive method of executive prerogative. Yet there are calls for returning to the Harper practice that, as I argue in the book, did little to illuminate judicial philosophies or generate constitutional literacy. The Supreme Court of Canada intervened to constitutionally forbid the pursuit of Senate reform via unilateral federal legislation. Prime Minister Trudeau is now seeking to change the composition of the Senate by appointing independent senators. Yet, as we have seen in the case of assisted dying legislation, it is perilous to lend greater legitimacy to a chamber filled with appointed senators, all having life tenure, without also attending to the balance of power between the two Houses – something, I argue, that Harper’s Senate reforms similarly failed to attend to. Then there is the problem of largely unchecked executive authority, which persists as a defining feature of Canadian politics at both federal and provincial levels. Each of these institutions and practices continue, in my view, to be in need of reform.

It was this powerful executive authority that the Harper government skillfully exploited. The Prime Minister was disinclined to entrench change via the Constitution’s amending formulae, mechanisms that have proven too unwieldy and perilous. Instead, he had recourse to powers that could, with the passage of time, shift constitutional culture but without formal amendment. Yet exercises of executive power are vulnerable to reversal by the next government. For this reason, few of these innovations were likely to have outlasted the Prime Minister. We should worry, nevertheless, that the topics canvassed in the book will continue to dog Canadian constitutional politics for years to come.

Executive dominance is not the distinctive thing that is worth preserving vis-à-vis the United States. Rather, it is our capacious constitutional capacity to get things done – the constitution as a framework for self-government – that renders Canadian constitutional culture distinctive from the U.S. one. Despite worries about democratic excess, in 1867 subject matters were divided between the federal and provincial governments but, between them, nothing was left out. Rather than being severely hampered by limitations and checks at every turn – though there are checks (e.g. bicameralism) and some limitations (e.g. federalism and, later, the Charter) – Canadians can more easily translate their preferences into law. It is this ability to be responsive to expressions of the popular will that remains a distinctive feature of Canadian constitutional culture in contrast to American preoccupation with limited government. Which is to say that an aspect of Canadian constitutional culture worth preserving, in the face of integrationist pressures, is the idea of openness to change. Instead of agonizing over the content of Canadian identity, Canadians should seize on this constitutional culture of openness and imagine alternative futures that are inclusive and more democratic than ones we may have experienced in the past.

It is that openness, paradoxically, that remains a principal source of vulnerability – it renders Canadians susceptible to the ongoing influence of the U.S. constitutional project. These integrationist pressures continue apace and make their appearance in subtle ways in our legal and political life. The object of the book is to expose readers to Canada’s constitutional traditions in order to both alert them to these pressures and to inform debate about the direction future reforms might take. It is meant to be a modest contribution to Canada’s ongoing project of self-government.