Eric M. Adams teaches and researches Canadian constitutional law at the University of Alberta’s Faculty of Law.
In the 1980s and 1990s, disagreements about the Constitution embroiled Canada in negotiations, amendments, recriminations, secessionist movements, alienation and referendums. More than a little bruised by the experience, the country’s leaders and governments have spent the last few decades mostly avoiding grand constitutional gestures.
After that period of quiet, Canada’s politics of constitutional change are growing louder. In a recent press conference appearance typically reserved for updates on the province’s COVID-19 response, Alberta Premier Jason Kenney announced that this fall his government would make good on a 2019 election promise to hold a constitutional referendum on the removal of the “principle of equalization” from the Constitution of Canada.
For all the myths, half-truths and narratives of grievance that cling to equalization, the constitutional principle entrenched in the Constitution is straightforward. Section 36(2) of the Constitution simply states: “Parliament and the Government of Canada are 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.”
“Equalization,” Alberta Conservative MLA Miranda Rosin explained, “is the epitome of all that is unfair in our Dominion.” It harms resource development, encourages “socialist practices,” makes “Alberta poorer” and grants money to Quebec “that isn’t theirs,” she argued. The referendum on removing equalization, provincial Justice Minister Kaycee Madu added, would place Albertans in the driver’s seat in “speaking with one loud voice on this unfairness within our Confederation.” Mr. Kenney agreed that equalization had “become the most powerful symbol of the unfairness of Alberta’s deal in Confederation.”
Yet, for all the talk of fairness, Albertans might have expected their government to be fair with them about the nature of the processes that govern constitutional change.
Mr. Kenney cites the Supreme Court of Canada decision in Reference re Secession of Quebec to argue that if a majority of Albertans vote to remove the principle of equalization from the Constitution, it would create a “binding obligation” on the Government of Canada “to negotiate that amendment with the province in good faith.”
“That’s the theory behind the referendum,” the Premier explained.
The theory is wrong.
Supreme Court judgments are carefully worded, and never more so than in the 1998 Secession Reference, in which Canada’s highest court had to answer perhaps the most important constitutional question it had ever faced: whether it was constitutional for Quebec to unilaterally secede from Canada.
In answering that question, the court noted that given the existence of the constitutional amending formula, each province has “a right to initiate constitutional change.” When a government initiates that process, the court explained, there exists “a corresponding duty on the participants to Confederation to engage in constitutional discussions in order to acknowledge and address democratic expressions of a desire for change.”
Mr. Kenney’s misinterpretation of the Supreme Court comes when he pulls later paragraphs of the judgment and seeks to apply them to Alberta and its referendum. In the Secession Reference, the Supreme Court held that when a clear majority within a province votes to repudiate “the existing constitutional order … to pursue secession,” a constitutional duty requires the rest of Canada to “negotiate constitutional change.” The Court chose its words deliberately in this instance to apply to the most fundamental of constitutional crises: the breakup of the federation itself.
The contrary view – that any referendum on any constitutional topic requires constitutional negotiations between all of the provinces and the federal government in order to negotiate constitutional change – is a recipe for an endless quagmire of constitutional dysfunction. The Supreme Court did not place us on this path.
Alberta, like any province, can seek to change a particular aspect of the Constitution of Canada. But that desire, and any referendum result that supports it, grants only what the constitutional amending formula already provides: a process of constitutional change that requires broad agreement among provinces and the federal government. Our collective constitutional documents – the “supreme law of Canada” – require nothing less.
Constitutions are not immutable gems fixed in perfection, but nor should governments treat them as sandcastles subject to the political winds of the day. We can remain committed to the constitutional principle of equalization while understanding that the particular formula which put its aspirations into practice should be subject to periodic review, discussion and adjustment to ensure its principles are implemented in light of its objectives of making Canada work.
When it comes to constitutional law and politics, we might need to remind politicians that mutual respect, compromise and understanding work far better (like in so much of life) in reconciling our national unity and provincial diversity than ultimatums steeped in the politics of anger, accusation and blame.
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