CONCLUSION
In Canada, constitutional issues are largely seen as a struggle between national and provincial power rather than an opportunity for those provincial communities to distinguish their democratic practice from one another in ways that might lead to more genuine diversity of practice.
The national-unity imperative that has obsessed Canadian governments for so long may have made provincial elites and even provincial communities hesitate to actually assert their differences formally. Some contend that the problem is not so much a fear of provincial self-expression but that the provinces are not the right unit of analysis. Nelson Wiseman, for example, suggests that Canada’s subcultures are probably best understood regionally rather than provincially. Canada, like most federations, is a country of regions, and provinces may be a poor fit for the essence of those cultural differences. Hence communities do not necessarily look to the provinces as the outlet for their constitutional self-expression. With the exception of Quebec and Ontario most of the patterns of difference in the Canadian federation, Wiseman argues, are best mapped in clusters of provinces, or even parts within those provinces.26The irony is that the natural differences that divide and even define Canadians are so consequential that they cannot be risked being recognized in separate provincial constitutions. Some observers might look on this unwillingness to formally embrace diversity as either hypocritical or excessively cautious. Others might see the necessity of that caution and appreciate the “holding together” qualities of an unwillingness to overtly recognize the differences that define Canadians.
However, my reading is that provincial democracy and the quality of the Canadian constitutional experience is the poorer for this excess of caution. Unlike in other federations there will be national limits on what provincial constitutions can do – provincial constitutional orders are and will be patrolled by national standards and national institutions, namely the Charter of Rights and the Supreme Court respectively.
Provinces are thereby already likely to be constrained from the worst excesses of subnational constitutionalism. I think we can say that provincial constitutions do exist in Canada, but because the provinces have not taken the further step of asserting the wish to make a constitution, provincial constitutions are necessarily imperfect. The more formal definition of provincial communities is slowly under way in the provinces that have attempted electoral change and leads to some hope that constitutional issues will not be forever ignored. The fate of those attempts (all of which have thus far failed) suggests that the conservatism of subnational constitutional cultures is still very much a reality and that provincial constitutions are likely to remain imperfect for some time.
1 David Thomas, Whistling Past the Graveyard: Constitutional Abeyances, Quebec, and the Future of Canada (Don Mills: Oxford University Press 1997).
2 Nelson Wiseman, “Clarifying Provincial Constitutions,” National Journal of Constitutional Law 6 (1995).
3 David E. Smith, “Bagehot, the Crown and the Canadian Constitution,” Canadian Journal of Political Science 28 (1995): 620.
4 Prince Edward Island Terms of Union, 1873. The quoted provision was actually replaced by the Constitutional Amendment Proclamation, 1993, necessitated by the building of a fixed link between the island and the mainland, thus making a guarantee of steamship service a less pressing need.
5 Manitoba Act, 1870.
6 F. L. Morton, “The Effect of the Charter of Rights on Canadian Federalism” Publius: The Journal of Federalism 25 (1995).
7 Ford v. Quebec (Attorney General, [1988] 2 S. C. R. 712).
8 Peter H. Russell, “The Unrealized Benefits of Canada’s Unfederal Judicial System,” in Dimitry Anastakis and P. E. Bryden, eds., Framing Canadian Federalism (Toronto: University of Toronto Press 2009).
9 This was particularly true in the Western provinces in the early part of the twentieth century.
See David Laycock, Populism and Democratic Thought in the Canadian Prairies, 1910–1945 (Toronto: University of Toronto Press 1990).10 Re: Initiative and Referendum Act (1919), AC 944.
11 J. R. Mallory, Social Credit and the Federal Power in Canada (Toronto: University of Toronto Press 1954).
12 C. B. Macpherson, Democracy in Alberta: The Theory and Practice of a Quasi-Party System (Toronto: University of Toronto Press 1953), 194–5.
13 G. Alan Tarr, Understanding State Constitutions (Princeton: Princeton University Press 1988), 152–3.
14 Peter H. Russell and Lorne Sossin, eds., Parliamentary Democracy in Crisis (Toronto: University of Toronto Press 2009).
15 For an account of contemporary executive federalism in Canada see Herman Bakvis, Gerald Baier, and Douglas M. Brown, Contested Federalism: Certainty and Ambiguity in the Canadian Federation (Toronto: Oxford 2009).
16 Donald E. Blake, “Electoral Democracy in the Provinces and Territories,” in Christopher Dunn, ed., Provinces: Canadian Provincial Politics. 2d ed. (Peterborough: Broadview Press 2006).
17 R. K. Carty, Fred Cutler, and Patrick Fournier, “Who Killed BC-STV?” The Tyee, 8 July 2009. (http://thetyee.ca/Views/2009/07/08/WhoKilledSTV/).
18 Vriend v Alberta [1998] established that the Alberta Individual Rights Protection Act’s omission of sexual orientation from the grounds of protection could be rectified by resort to the Charter of Rights.
19 Antonia Maioni and Christopher Manfredi, “The Last Line of Defence for Citizens: Litigating Private Health Insurance in Chaoulli v. Quebec.” Osgoode Hall Law Journal 44 (2006).
20 Lisa C. Philipps, “The Rise of Balanced Budget Laws in Canada: Legislating Fiscal (Ir) Responsibility,” Osgoode Hall Law Journal 34 (1996).
21 Canadian Press, “B. C.’s Amended Balanced Budget Law to Allow 2 Years of Deficits,” 9 February 2009. http://www.cbc.ca/canada/british-columbia/story/2009/02/09/bc-legislature-budget-deficit-vote.html.
22 Australian states are instructive here. While some states simply require a legislative majority for constitutional alteration, others require multiple majorities or positive referendum results.
23 For example, the New Brunswick Commission on Legislative Democracy had the mandate not only to inquire into electoral reform but also to “make recommendations on strengthening and modernizing our… democratic institutions and practices.”
24 Campbell Sharman, “The Strange Case of a Provincial Constitution: The British Columbia Constitution Act,” Canadian Journal of Political Science 17 (1984).
25 A point made with considerable clarity and evidence in Peter H. Russell, Constitutional Odyssey: Can the Canadians Become a Sovereign People? 3d ed. (Toronto: University of Toronto Press 2004).
26 Nelson Wiseman, In Search of Canadian Political Culture (Vancouver: UBC Press 2007), 116–17.