PROVINCIAL CONSTITUTIONS AND STATE CONSTITUTIONALISM
With the character of provincial constitutions now inventoried, what can we gather about their significance for Canadian federalism and constitutionalism more generally? Especially intriguing for this volume is the question of how subnational constitutions and constitutionalism affect the constitutional culture at the state level.
Clear from the discussion above is that Canada’s provincial constitutions seem held back from a truer constitutional status by lacking the pedigree of entrenchment. Conventions and mere legislation are perhaps too flexible to merit the commitment of the constitutional label. The question remains as to what procedure would elevate a provincial commitment to such a constitutional status. The state level Constitution Act, 1982 tells us that a provincial legislature alone can alter a provincial constitution, so apart from the missing label of constitution, some of the pieces cited above are legitimately understood to be elements of a constitution. The fact that a subsequent legislative majority could override a constitutional commitment is troubling, but options exist to try and temper and give a more entrenched character to such provincial commitments.“Manner and form” restrictions, essentially requiring that any repeal of a statute meet a higher standard than a simple majority, could be used to insulate provincial constitutional provisions from the whims of the legislature. For good measure, a higher standard could be required for the initial alteration of the provincial constitution, setting a benchmark for entrenchment. Despite the long-understood technical limitation on decisions being made by referendum, governments could go further and still conduct consultative referendums that would have a considerable constraining character on subsequent legislatures.22 Certainly that has been the case with electoral reform initiatives that would have entrenched new systems that one would not expect to be repealed through simple statutes down the road.
The provinces could legitimately be expected to resort to more consultative forums for constitutional change than simple legislative majorities or even super-majorities. The provinces have the most experience with direct democracy – the two most critical referendums in the country’s history occurred in Quebec, and other provinces have experimented with the form. National constitutional change, despite a lack of formal requirement will be subject to referendums for ratification. Important changes to the way the provinces work will need such an approach as well. British Columbia has pledged a coming referendum on its provincial sales tax, further entrenching a commitment to direct democracy.Nevertheless, few provinces have even explored the idea of conducting any kind of comprehensive constitutional review or rethinking. The recent vogue for electoral reform also saw some provinces throw in sundry investigations of the state of parliamentary democracy within their provinces, but no serious movement for constitutional reform came out of those exercises.23 If anything, such investigations tended to water down the case for electoral reform by diverting attention to every corner of the parliamentary system. The appetite for constitutional self-examination at the provincial level has probably been weakened by unsuccessful constitutional change at the state level. Historically, provinces have directed their constitutional energy to the reform of national institutions, and provincial governments have been happy to direct public discontent to the national political system rather than concentrate too much on their own backyards. The question remains whether the achievement of relative permanence and entrenchment or the content of a governing system should be the central concern of those looking for provincial constitutions in Canada.
So, perhaps the problem is a definitional one. If we conflate the constitution solely with its written and entrenched elements (and there are lots of good reasons to do so), the search for provincial constitutions in Canada will be over quickly.
Alone among Canadian provinces, British Columbia is the only one to have gone so far as to label any written document its constitution, and even so, that document lacks much of the clarity or resemblance to actual practice expected from such charters.24 If we look further afield (and there are lots of good reasons to do that too) constitutional structures are in place, and their lack of formalization gives us a curious story to unravel. The provinces are not without the trademarks of an unwritten constitutional tradition, and in these forms have what may be regarded as rather advanced constitutional development. What I propose is a caution to comparativists looking for written constitutions in Canada’s provinces. While the practice of written constitutionalism has important features that would be of tremendous benefit to the provinces, it may also have limitations that make its omission make sense. In short, Canada’s missing provincial constitutions may be cause for concern, but there may also be very good reasons for their absence.The inheritance of British constitutional and parliamentary traditions, modified by the introduction of federalism in 1867 and the addition of a bill of rights in 1982, has left a mixed constitutional heritage for Canadians to accommodate themselves to. In some respects the constitution is formal and legalistic, clearly demarcating roles and offices and the dispersal of sovereignty between levels of government and placing limits on government consistent with fundamental human rights. But in other important respects the Canadian constitution is a poor guide to the practice of government at the national level. Following British practice, much of the constitutional order depends on the modifying influence of constitutional conventions. Moreover, there has yet to be a definitive exercise of popular sovereignty to secure the legitimacy of the written constitution.25 The two most central elements of the present written constitution were still just ordinary statutes, albeit of the Westminster parliament.
Canadians had opportunities to assert their constitutional sovereignty at the national level in a number of rounds of mega-constitutional reform through the 1980s and 1990s but never accomplished the goal and are only now recovering from the resulting constitutional fatigue. Today, Canadians are really still in a sort of constitutional cold war – with a number of unsettled issues still outstanding and no clear agenda or real incentive to move forward on the constitutional file.Part of that constitutional paralysis may be put down to the diverse nature of Canada as a country and the challenge of answering difficult questions about sovereignty, provincial autonomy, and minority rights in such a heterogeneous community. This makes the general lack of entrenched and meaningful provincial constitutions perhaps even more puzzling. The more homogenous communities at the provincial level should be far more capable of asking and answering some of the fundamental questions that have stalled the process of national constitutional change and conciliation. In fact, their willingness to define themselves differently in practice (if not on paper) is partly responsible for the stalemate that saw one province (Quebec) withhold its consent to Canada’s single largest constitutional amendment and further hampered two major attempts at national constitutional change in the late 1980s and early 1990s. Quebec in particular would seem to have abundant incentives to enshrine and celebrate an independent constitutional tradition, but that seemingly singular province is not much closer to such a demonstration than any of its other provincial counterparts. There have been a number of proposals to the province’s National Assembly to begin the process of considering and drafting a provincial constitution. It is difficult to decipher the real meaning of such proposals in the complicated matrix of sovereigntist politics in the province. When in government, the separatist Parti Quebecois (PQ) has been more interested in moving toward independence than in asserting that independence within the confines of the present federal system through a more robust provincial constitution.
When in opposition, the PQ has put some pressure on the federalist Liberal party to engage in such exercises of constitutional self-definition. Whether talk of a provincial constitution is just a tactic by separatists to highlight Quebec’s differences from Canada when support for separation is low or when they are out of government and unable to progress the separation agenda is unclear.Canada’s provinces have not been the experimental grounds where problems of parliamentary government are solved for replication at the national level. The provinces have been anything but enthusiastic embracers of the potential of entrenched subnational constitutionalism. Perhaps they don’t have to be. Much of what qualifies as constitutional is dealt with in a variety of forms at the provincial level. But the low level of constitutional consciousness at the provincial level remains a little troubling. Why consciousness is low remains unclear. There is a general tendency on the part of the provinces to look outward at the federation as a whole when considering constitutional questions. Without recognition and accommodation within the federation, few provinces seem determined to set out their uniqueness in constraints on government at the subnational level. This fits a pattern at the national level where the toughest constitutional questions are always fudged a little to avoid asking questions that might have difficult answers. Canadian federalism is able to plug along in a cloud of ambiguity. One that ultimately is good for the long-term survival of the federation, but frustrating to those who like more definitive expressions of constitutional self-knowledge.
Because provinces have not embraced the subnational constitutional exercise enthusiastically, there are fewer examples of policy-making by constitution than in some other jurisdictions. Matters that get considered for entrenched status at the provincial level never seem unworthy of the constitutional label. That might be part of the problem. Entrenchment is seen as too permanent or too difficult to repeal. But part of the stability of Canada’s federal system comes from elites knowing when and when not to ask definitive questions about the nature of Canadian democracy and community. Ideas and principles are contested within and between the Canadian provinces, but open conflict is often avoided, even at the expense of resolution.