Two NDP premiers and two NDP governments. Two provinces side by side in the Canadian west, one – the Far West, Lotusland British Columbia. The other – just “the West”, rough and tumble oil baron Alberta. Alberta is landlocked. It needs to get its oil…. sorry, let’s be accurate here, its bitumen to markets other than the United States (currently, the world’s biggest producer of petroleum). In particular, Alberta wants access to markets where they will pay more money for its bitumen, extracted from its oil sands. British Columbia is a land of milk and honey – okay, let’s be accurate, it’s a land of mountains, rivers and fjords. British Columbians are highly protective of their environment, the ruggedness of which is only surpassed by the fragility of the eco-systems that populate it. Enter the Trans Mountain Pipeline Expansion (“TMX”).
The feds approved a massive expansion of the existing Trans Mountain pipeline that takes diluted bitumen from Alberta through British Columbia to a terminal located in Burrard Inlet that is part of Metro-Vancouver. Once built, this will mean a huge increase in freighter traffic in and out of Vancouver’s ports. The TMX will result in increased risk of bitumen spills in the port, in the Salish Sea, in the Fraser River and its estuary and all along the route of the pipeline. In short, it will dramatically boost Alberta’s access to world markets for its bitumen but it will equally raise the risk to likely do incalculable damage to British Columbia’s rivers, lands and coastlines.
Last year, the federal government announced that it was approving the twinning of the TransMountain pipeline which, once constructed and initialized, would increase multifold the volume of Alberta’s oil sand bitumen that could be shipped out of Vancouver’s Burrard Inlet. The new NDP government in British Columbia announced on January 30, 2018 that it was considering regulations to limit any increase in diluted bitumen that could be shipped through British Columbia. This announcement was met almost immediately by a warning from a stern Alberta Premier Rachel Notley that BC was acting unconstitutionally and that it was purporting to exercise powers it did not have. The constitutional battle lines are being quickly drawn. (See the news report from CBC News from that date for a quick review of what was said by the various parties).
Today marks the 150th anniversary of the date that Canada’s constitution came into effect. While many are saying that today is Canada’s 150t birthday, it is more accurate to say that it is the “150th birthday” of Canada’s written federal constitution. On July 1, 1867, the British North America Act, now named the Constitution Act, 1867, came into force and the fledgling federation known as Canada was created. But Canada and her constitution existed long before that, Even in the political and legal sense of the word, “Canada” was a concept or an entity in one form or another well before 1867. There was the united Province of Canada, Upper and Lower Canada, and, of course, the indigenous nations that spanned the territories of what is now Caanda for long before 1867. But today, I would like to commemorate the 150th anniversary of Canada’s BNA Act (let’s use the former name today for old time’s sake). I would also like to take notice of what transpired recently in British Columbia to underscore that Canada and her constitution are much, much older than 150 years.
Today, the new Minister of Democratic Institutions, Karina Gould, announced that the Liberal government has officially abandoning the objective of electoral reform. Thus, notwithstanding the promise that 2015 would be the “last federal election conducted under the first-past-the-post system” made during the 2015 electoral campaign, Canada will be faced with more elections which permit very small percentages of the voting public to put in place electoral majorities.
On October 27, 2016, the Prime Minister named nine new senators to the Senate, with 12 more to be appointed in the coming days. These new “independent, non-partisan” senators along with their future fellow colleagues will soon comprise the largest “bloc” of senators in the Upper House, surpassing the Conservative senators. What Prime Minister Trudeau has done by moving to a non-partisan, merit-based appointment process is major parliamentary reform, all without the need for any constitutional amendment whatsoever.
Government ministers and opposition leaders were in a flap this last week. The Senate dared to amend Bill C-14, the bill on physician-assisted dying and strike out one of the qualifications that the House of Commons had insisted on – namely, that natural death be reasonably foreseeable. Opposition Leader Rona Ambrose stated in response on June 9, 2016:
“We have the courts making laws in this country and now we have an unelected Senate changing the laws of an elected House….”
Minister of Health Jane Philpott stated that the government was “concerned” about the amendments to a bill that “has been supported by a vote in the House of Commons”. Justice Minister Jody Wilson-Raybould called the amendment a “significant one” and said that it would “broaden the regime of medical assistance in dying in this country and we have sought to ensure that we, at every step, find the right balance that is required for such a turn in direction.”
On February 16, 2016, the Quebec Superior Court upheld the Succession to the Throne Act, 2013, an Act of the federal Parliament that gave Canada’s assent to an Act before the Parliament of the United Kingdom that changed the rules of succession for the British monarchy such that the system of male preference primogeniture under which a younger son could displace an elder daughter in the line of succession was to be ended and also such that the rule that rendered anyone who married a Catholic became ineligible to succeed to the Crown was similarly removed. In Motard v. Procureur general du Canada et al., 2016 QCCS 588, Justice Claude Bouchard examined the question as to whether the amendments to the royal succession, and Canada’s assent to them, were changes to Canada’s constitution and, if so, whether Part V of the Constitution Act, 1982 was therefore engaged.
Yesterday, the Liberal government announced that they were moving forward with their plan to create a five member independent advisory panel to provide recommendations for future appointments to the Senate. As I understand it, the advisory panel will be comprised of three “federal” members and two ad hoc members from the province or territory with one or more vacancies to fill. The advisory panel will consider potential candidates and provide non-binding recommendations to the Prime Minister who in turn will recommend appointments to the Governor General. The panel will be charged with ensuring that the potential candidates are representative of men and women and the diversity of Canada, and that the candidates understand and appreciate the role that the Senate is to play in Canada’s Parliament. Within hours, British Columbia’s premier Christy Clark already indicated that these reforms are insufficient and that British Columbia will not participate, saying that the Senate has never represented British Columbia adequately.
First, do I think that these reforms are “constitutional”? Yes, I do. I am of the opinion that the reforms do not constitute amendments to the essential character and constitutional role of the Senate, namely, that of an appointed legislative body of second sober thought. Indeed, these proposed reforms taken on their own will actually reinforce and support the original role intended for the Senate by the drafters of the original British North America Act of 1867 (now named the Constitution Act,1867). The process of removing the partisan qualities of Senate appointments will help to bring the Senate back to its original role of a legislative chamber of second sober thought, providing careful consideration of proposed legislative instruments. It would act as a means of ensuring proper crafting of bills. It could, if necessary (and this should only ever happen rarely and exceptionally), reject products that constitute partisan excesses of the House of Commons. These are all roles that will be enhanced by the proposed reforms and have been expressly acknowledged by the Supreme Court of Canada as being the proper constitutional roles for the Senate. In my opinion, no formal constitutional amendment is needed for these reforms.
Second, do I think that these reforms are sufficient? No, I do not. As a British Columbian, I understand Premier Christy Clark’s reaction to the reforms. If this is all that is planned for the Senate, then British Columbia will continue to be the most under-represented province at the federal level. Historic circumstances give provinces such as Nova Scotia and New Brunswick 1o senators each, and Ontario and Quebec 24 senators each, yet British Columbia arguably a region unto its own, 6 senators. One of the other roles of the Senate is to reflect Canada’s regional diversity – and I would add the word “adequately”. For these reforms, the new federal government must engage in the much feared federal/provincial/territorial (and I would add “/First Nation”) constitutional negotiations. Only by committing to these sorts of discussions will the other reforms as currently proposed by the Liberals ultimately be legitimized and supported by the constitutional participants to our federation. If such negotiations were to be proposed by the federal government, the Premier of British Columbia would be hard pressed not to participate in the advisory panel reforms announced yesterday.
Prime Minister Justin Trudeau and the new Liberal government face a unusual dilemma. They have an ambitious legislative agenda. They have a majority in the House of Commons. But they do not control the Upper House, the Senate. In that legislative chamber, the Conservative Party have 47 members. The Liberals cast their senators, now numbering 29, from their caucus. There are 7 independent senators. And 22 vacancies. Because the Liberal senators are no longer subject to party discipline, their votes cannot be controlled. One can imagine nevertheless that Liberal senators would be inclined to vote for the Liberal Party’s legislative agenda. But the Conservative Party Senators, however, have been strictly whipped, at least under the leadership of former Prime Minister Stephen Harper.