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Where there's a political will, there's a constitutional way

Allan C. Hutchinson of the Osgoode Hall Law School

John Lennon was no political theorist, but he had the measure of Canada's constitutional history. Unlike Norman Spector writing in The Globe and Mail recently, he knew that "life is what happens to you while you're busy making other plans." So goes life, so goes the Constitution.

A better sense of Canada's constitutional history would reassure Mr. Spector that there are more and likely better ways to change the Constitution than through its formal amendment. Indeed, as he emphasizes, efforts to effect such formal changes, such Meech Lake and Charlottetown accords, have more often than not failed and, I would add, done more harm than good.

However, once you think of the Constitution as less a textual document and more an organic process, it is easier to understand that change occurs more in and through the Constitution than to it. Amendment is only one and relatively infrequent means of constitutional change. The document itself is simply one more rhetorical resource to be used in a larger political bargaining game.

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This dynamic portrayal runs deep in the Canadian constitutional tradition. Echoing the words of Lord Sankey in the famous Persons Case of 1929, the Supreme Court has more recently reminded us that "our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life." And a glimpse at constitutional history confirms this.

For the most part, change has continued apace while the texts of the Constitution have remained unaltered. The various actors – politicians, government leaders, bureaucrats, judges, and citizens – have gone about their business and been relatively unimpeded by the actual words of the Constitution.

For example, while the founding Act of 1867 has gone largely unaltered, modern federalism would be unrecognizable to its past incarnations. The federal government still has a formal right to disallow provincial legislation, but it has not been used for more than a century and is now considered unusable. The "trade and commerce" doctrine has gone through several often antagonistic phases of development.

The fact is that where there is a political will (i.e., federal and provincial governments agree), there is usually a constitutional way. So, although the courts have interpreted the Constitution to prohibit the formal swapping of powers between federal and provincial governments, ingenious political devices have been used to achieve the same goals.

Similarly, there has been no need for a constitutional amendment to allow the federal government to dominate health care, a provincial matter, by the use of its spending power. Also, because there has been no political agreement, the federal government has been unable to impose a national securities regulator.

Finally, because Canada does not have an entirely written constitution, it has been left to different actors to develop and rely on unwritten conventions and customs to move politics forward: the patriation entanglement, the secession spat and the prorogation fiasco were each resolved on such a basis. In such matters, formal amendments were not only unnecessary but undesirable.

No constitutional document is enough in itself to make anything happen; it takes a political consensus to realize the benefits of constitutional texts. Conversely, no written constitution, no matter how ideal or perfect in style and substance, can prevent a society from taking steps that stand at odds with it; the wartime internment of Japanese-Canadians and the Quebec Crisis of 1970 demonstrate that.

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Of course, dynamic and informal change has not always been as progressive or as democratically driven as many would like. But there is no reason to think that the vast resources and energies that have gone into formal constitutional reform have been either. Continual and informal constitutional change is a risky but unavoidable endeavour for any society that wants to remain vibrant and relevant to its own aspirations.

So, rather than urging formal constitutional amendments, Canadians would be much better off simply getting on with the job of governing themselves. What people presumably want is change in their lives, not merely change in the documents of nationhood.

Allan C. Hutchinson is a distinguished research professor at York University's Osgoode Hall Law School.

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