Beyond The Commons

 Beyond The Commons

Aaron Wherry covers all the goings-on in and around Parliament Hill. Follow Aaron on Twitter: @aaronwherry

Categories: Beyond The Commons, Capital Read

What would John A. do?

by Aaron Wherry on Wednesday, October 13, 2010 5:02pm - 0 Comments

Rob Silver has some questions about Maxime Bernier’s preferred reference point.

Of course you can’t pick and choose from the sacred Constitution Act, 1867 so I’m sure Bernier will have no problem with the Governor-General once again using his powers of disallowance and reservation. I mean, Sir John A. Macdonald routinely struck down provincial legislation he disagreed with, it was part of the pact that was struck back in 1867 so surely once we start “respecting the constitution,” future PM’s can pass judgment on any provincial bill he or she chooses per Bernier.

Disallowance was last used in 1943, but the power has never explicitly been revoked. As for John A., his views on federalism were complicated.

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  • Mike T.

    Although it's become quite commonplace since the first prorogation to bandy about the term "convention" a bit loosely for my liking, it is certainly proper to say that by convention there is no more disallowance.

    • tedbetts

      I think the point is that Bernier wants to go back to what the founders wanted. Well so be it then. The federal government was a lot stronger and more relevant and more interfering then than it has been in many generations.

      • madeyoulook

        You and Silver might both like to read what Bernier actually said. For it included the following nugget:

        In a speech before the Quebec Legislative Assembly in 1871, Laurier said:
        “If the federal system is to avoid becoming a hollow concept, if it is to produce the results called for, the legislatures must be independent, not just in the law, but also in fact. The local legislature must especially be completely sheltered from control by the federal legislature.
        If in any way the federal legislature exercises the slightest control over the local legislature, then the reality is no longer a federal union, but rather a legislative union in federal form.”
        http://fullcomment.nationalpost.com/2010/10/13/ma…

        • tedbetts

          but that's the very point we're making myl. Bernier wants to go back and pick and choose from what the founders had in mind. And that is only one example of the powers MacDonald had that Bernier would reject. There are many others.

    • John D

      Like tedbetts says, Bernier isn't talking about convention, he's talking about 'intention'

  • tedbetts

    Exactly Mr. Silver.

    Canada is currently the most decentralized country in the world. At the very least one of the three most decentralized countries along with the US and Switzerland.

    That highly decentralized nation is not at all what MacDonald or the "founding fathers", to abuse a US term, envisioned or enacted or exercised once the country was formed.

    This has always been at the core of my strong dislike of Harper. Not his conservativism, at all, but his desire to divide up the country with firewalls that would have caused MacDonald to go to war. And Bernier wants to go even further than that.

    True federalist need to start coming together and standing up for Canada. Our economy and the country suffer greatly from these provincialists. It is not just about big spending national programs, but about the whole being greater than the sum of its parts. Harper in fact has made some very tentative, modest, halting attempt at strengthening the federal government with talk about maybe some efforts at breaking down stupid inter-provincial trade barriers and a national securities commission (like every other country). He just doesn't have the guts, the strength or the leadership abilities to carry it out. And even that is too far for Bernier.

    • LynnTO

      "Standing Up for Canada".

      Interesting turn of phrase, there.

      (And yes, just an observation…)

      • Orson Bean

        " Harper in fact has made some very tentative, modest, halting attempt at strengthening the federal government with talk about maybe some efforts at breaking down stupid inter-provincial trade barriers and a national securities commission (like every other country). "

        I'm sorry, but what you say or imply about the steps toward a national securities commission is false. That is proceeding apace, the Canadian Securities Transition Office has been hard at work for some time now taking steps to make this a reality. It hasn't been "talk", there's been plenty of action on that file.
        http://www.canadiansecuritieslaw.com/2010/10/arti…

        • Step5555

          With the end result that rather than having a centralised office in Toronto, as any sane person would set up, the new body is being split up and spread across the country, thereby diluting its effectiveness in the name of appeasing the provinces who have been against the idea since day one.

          Frankly, things looked better on that file when it wasn't actually moving.

          • Orson Bean

            I practise in the area, and it makes eminent good sense to have vigorous regional offices in places such as Vancouver, Calgary and Montreal, which is what they're doing. The securities industry and practising bar in Canada is mostly located in 4 places: Toronto, Calgary, Vancouver and Montreal. We need to have decision-makers in each of those cities to respond to local market participants in those cities. Having a single, centralized office in Toronto would be insane — it would mean, e.g., a securities lawyer in Vancouver would not be able to get an answer to an inquiry or a decision made after 2pm Vancouver time because everyone in Toronto would have gone home.

          • Step5555

            My objection is more that there has to be a centralised head office SOMEWHERE, and in lieu of a situation a la the SEC where the offices are located in the administrative centre of the country, the logical place to have the head office is (based on trade volume as well as access to head offices), Toronto. That doesn't preclude satellite offices in the other major trading centres, and, indeed, every province. But a system of not establishing a head office in favour the unfocused approach going forward is not only a poor organizational structure, it looks ludicrous to other countries trying to do business in Canada.

            (Anecdotally, I explained the proposal to a securities lawyer I went to school with who now works in NYC. It took him about three minutes to stop laughing. He then stated that the Toronto office would inevitably be treated as the de facto head office anyway by the international business community, which I'm sure is going to annoy the other provinces more.)

            It's as ludicrous as if we re-started the National Energy Policy (calm down, Albertans, just a hypothetical) and rather than place the HQ in Calgary, decided on four independent offices in Calgary, Regina, St. John's and Yellowknife. Hey, they all are near oil reserves, they deserve equal treatment, right?

          • Orson Bean

            Honestly, that particular issue (location of the head office) really doesn't excite me all that much. It's a matter of detail and semantics. Personally I'm fine with the head office or hq or whatever being in Toronto — as long as the regional offices (really Vancouver, Calgary, Montreal) are staffed meaningfully with decision-makers who can render decisions and address inquiries without having to check with Dad in Toronto.

            Of course Toronto is going to end up with the largest office and the largest managerial, executive and staff presence — the OSC is larger than the BCSC or ASC or AMF, and as has been observed, the new national commission is in many respects going to be the same teams, just all wearing a new jersey.

            I think people have overreacted a bit to Hyndman's proposal of a sort of diffused head office structure. In any event, I'm confident that common sense will prevail, as long as blowhard politicians keep their nose out of things and let the Transition Office do its work. I know many of the people involved in this process, and they're all good, competent, sensible people.

        • YYZ

          A National Securities regulator could be acheived in a matter of weeks if not for the need to pander to every province. The optimal solution for securities regulation in Canada is to delete "Ontario" from OSC's signs and letterheads and replace it with "Canada."

          There is progress I agree…but very, very slow (albeit much faster than any other government on this file).

  • tedbetts

    I do have to respectfully disagree with Wherry that John A's "views on federalism were complicated". They were pretty straightforward, as indicated the link Wherry provides.

    Our preeminent "Father of Confederation" wanted a legislative union. However, this was impractical because it would not be supported by Canada East (even as it came to be, New Brunswick and Newfoundland begged out). So MacDonald, ever the pragmatist, saw a federation as the only possibility to unite the country, but with extremely strong central federal powers which he then went on to use to as great an extent he could. His aim was to run the country as much as possible like the legislative union that he wanted, believing or at least hoping that provincial governments would over time cease to be relevant and then cease to be.

    Would Bernier support going back to that vision of Canada, I wonder, where the Prime Minister could disallow a provincial law that was fully within its section 92 jurisdiction, to pick out only the most obvious example among many that would have Bernier scrambling to retract everything he spoke today.

    • Jenn_

      Oh, good, something I know about. MacDonald (and the rest of our founding fathers) were staring at the Northern United States army when they were drafting our Constitution, and still hearing the shouts for Manifest Destiny. The Civil War was all but over, and there was this whole army, well trained and soon with nothing to do. And the Brits had already said they weren't sending any more soldiers our way.

      You betcha they wanted a strong Federal government, because we were going to need soldiers, and the Yanks weren't likely to wait for us while we retired one fighting force at the provincial border and called up the next one. Also, making the same mistake that gave rise to the Civil War in the first place (too much power given to individual states) would just be dumb.

      I've often thought that that kind of imminent threat was probably not a good thing to colour decisions on a new country's Constitution. Yet, when I see how incredibly well it serves us (and I do believe it serves us incredibly well) I am profoundly grateful for it. The trick of course is to put people in power who will not abuse the conventions, unwritten rules and spirit of the thing–its very ability to change with time and circumstances. We maybe haven't done so well at that in recent years.

      • Bullpup

        I understand what you are saying Jenn, Foreign affairs and military conflicts do fall under the Federal jurisdiction. Health care, education, etc fall under provincial. Why not return to that?

        • John D

          Because it isn't 1867?

          • Emily

            No it's not, and we need a standard all across the country in healthcare and education.

          • Orson Bean

            Yet, as many experts on federalism point out, one of the virtues of federalism is that it allows provinces to experiment with things that are later adopted by the country as a whole. E.g., you may have heard of this fella named Tommy Douglas and this thing called medicare. I'm not necessarily sold on the virutes of having the feds run healthcare and education — I fail to see why that would necessarily lead to better outcomes.

          • Emily

            No, we don't need 'experiments', we need standards.

            Grade 12 should mean the same thing right across the country.

            Heart surgery should mean the same thing right across the country.

        • tedbetts

          I think the point is that if you want to lay some claim to supernatural foresight and genius of the founders in one or two areas, then logic would dictate that we reconsider going back on everything. If "what the founders intended" is going to be the measure, then we can't pick and choose. And I would hazard a guess that there is a whole heck of a lot more that Bernier and Harper and likeminded provincialists and/or firewallers would find offensive in the founders intentions for the nation than we currently have.

          Canada was a heck of a lot more centralized until the middle of last century than it is now.

    • Dave

      PEI begged out, briefly. NB definitely begged in in 1867.

    • madeyoulook

      Would Bernier support going back to that vision of Canada, I wonder, where the Prime Minister could disallow a provincial law…

      You really really REALLY need to read what the man actually said!
      http://fullcomment.nationalpost.com/2010/10/13/ma…

  • http://www.twitter.com/globegenius Karen

    In 1982 I was in my final year of high school. For my Grade 13 History class I wrote a paper that argued that the Constitution Act, 1982 was a repuditiation of Quebec's special status under Confederation. During the ensuing years my thesis has been proved right over and over again. Maxime Bernier is bringing to the fore the failures of constitutional reform in Canada since 1982 and it's a welcome breath of fresh air!

    I think it is important to note that the federal/provincial system of equalization payments also changed in 1982. Many Canadians now living were young adults in 1982. It's not hard for me to imagine broad public acceptance for rolling back many of the constitutional changes that have changed our world and our lives.

    • Emily

      Well, only if they've been into drugs ever since.

    • tedbetts

      What special status did Quebec have "under Confederation"? If you are talking laws or constitutional convention, I'm not aware of any. If you are talking about founding father intentions, I'm not aware of any.

      • Orson Bean

        Well, that opens up a whole can of worms. When Confederation took place, Quebec was one of only 4 provinces, and 2 of them — Ontario and Quebec — dwarfed the other two in terms of physical size and population. And that occurred under the vision of "Two Nations" concept, which Quebec nationalists have been adhering to ever since.

        So you can argue that Quebec didn't need any special status back then because the "two founding nations" concept pretty much matched the reality on the ground. But a hundred years + later, that was no longer the case, thus the need for enshrinement of some sort of special status for Quebec.

        I'm not saying BTW that I agree with the concept, I'm just laying out a justification for it.

        • tedbetts

          I accept the two founding nations vision (three if you want to add first nations).

          But I think it was built up and defined later, not at confederation. I think it is far more of a construct of Laurier and certainly not of MacDonald or McGee or Brown or Tupper or Howe. I'm not even sure that Etienne-Cartier thought in those terms.

          Quebec interests killed MacDonald's desire for a unitarian state and drove the division of powers. But I am not aware of the founders thinking in terms of "two nations". Indeed, there is lots of evidence that many of them really saw this is a great step toward complete assimilation.

          • ColdStanding

            It doesn't look, IMHO, like you are thinking about this question in the most advantageous frame.

            "The evil that men do lives after them; The good is oft interred with their bones;" Marc Anthony in JS by WS.

            In weighing the accomplishments of the first men of our nation against the entailments their actions generated, it is the entailments that the following generations (unconsciously) take up and reason from. That MacDonald did or did not reason on the basis of the "two nations" paradigm is of little account, because those that followed him certainly did.

      • Richard_S_Argent

        I'm guessing she's speaking of compact theory federalism, (Honore Mercier and Oliver Mowatt and all that…although they were later than 1867, 1887 if I recall). Something Rowell-Sirois kinda, sorta legitimized (if I'm remembering my federalism classes correctly)

      • ColdStanding

        What about the residuum of special status that the Quebec Act of 1774 afforded? The act granted status sweeteners to encourage the newly subjected French's fledgling efforts to cleave to the English Crown. That set precedence. The astute Quebec polititians were the one's that learned to play the overt and unconcious entailments of this Act for their constituent's advantage.

    • kcm

      Wow! Disaffection with Canada only began in 1982…

      …that bastard Trudeau…of course there were also a number of other premiers involved in the crafting and negotiating process – including 74 out of 75?? Quebec members of Parliament. Of course that didn't prevent Levesque framing it as a betrayal of Quebec.

      • http://www.twitter.com/globegenius Karen

        I would argued that Quebec's dissatisfaction hit a high in 1980 and Trudeau's response sowed the seeds of all our discontent.

        Centralization: Canada’s Cure – or Problem? http://www.fcpp.org/publication.php/1301

        Governments Can’t Hide from Profit http://www.fcpp.org/publication.php/3327

        RECASTING SOCIAL CANADA:
        A RECONSIDERATION OF FEDERAL
        JURISDICTION OVER SOCIAL POLICY http://www.law.utoronto.ca/documents/Choudhry/rec…

        Bernier lives in the ideas I linked to. The conservative party can be anything…it has no direction beyond the dictates of one man. If Bernier wants to lead and remake Canada as Switzerland…hey….we can't lose!

    • John D

      So your worldview hasn't evolved since your 1980s high school essays?

      • http://www.twitter.com/ Karen

        A hundred years from now a historian would stamp my worldview "1982". If I left a note on my grave to argue the archivist would stamp my note "1982".

  • WDM

    No jokes about drinking a bottle of scotch yet? I'm disappointed.

    • Emily

      I'm glad no one has taken cheap shots at him. He had a dreadful and tragic personal life that would have driven anyone to drink.

      It's amazing he accomplished what he did.

      • MostlyCivil

        "He had a dreadful and tragic personal life that would have driven anyone to drink"

        And a guy named Charles that would drive him to Montreal. To drink.

  • ChrisInKW

    In Sir John A.'s time, Bernier would have been hung for high treason for waylaying those secret documents with unsavoury types.

  • D-R

    Blind worship of the original constitution is an uniquely American stupidity that reformatories sometimes try to import into Canada, stuff like this makes it seem that wingnuts who worship the old constitution have never actually read it.

  • Emily

    Which is why law 'evolves' to suit the times, and it's self-defeating to go backwards, or try to keep it the same way forever.

    But before we start tinkering again, we're going to have to decide if we are one nation….or ten.

  • tedbetts

    Well, according to our Prime Minister, he doesn't care if we split up.

    Stephen Harper, our Prime Minister, defending Canada: "Whether Canada ends up as o­ne national government or two national governments or several national governments, or some other kind of arrangement is, quite frankly, secondary in my opinion… And whether Canada ends up with o­ne national government or two governments or ten governments, the Canadian people will require less government no matter what the constitutional status or arrangement of any future country may be."

    Sir John A has been rolling in his grave over and over for the last 5 years. And with Bernier now, he might just feel the need to rise from the dead.

  • Emily

    I know, and as far as I can see Harper has done his utmost to help the process along.

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