Monday , March 1 2021
...the accompanying Charter of Rights and Freedoms has become the biggest political hot potato in Canadian History.

Politics Eh! Not So Different.

Canada has managed to get itself in the world’s (at least the U.S.’s) spotlight recently with the discussion and now legalization of same sex marriages. Something that has become painfully clear from comments and analysis is how few people recognise or understand the differences between the Canadian and American styles of government. Most distressing are the number of Canadians who are unfamiliar with their own country’s means of governance.

Since the majority of the misconceptions seem to centre around the role of The Supreme Court of Canada in the delivery of government it will be necessary to explain the history of our Constitution and The Charter of Rights and Freedoms. Since one must also understand the basic differences in the two styles of government a brief explanation of Canada’s structure is in order.

Canada is a constitutional monarchy. This means that the Queen of England, through her representative the Governor General, is the titular head of the country. But instead of being ruled by the monarch we are ruled by our constitution. The Queen is thus a figurehead only.

Like the U. S. Canada has two levels of government, federal and local, which is called Provincial instead of State. The constitution delineates which powers the province controls and any limitations that may be placed on those powers. The easiest way to look on it would to be to think of it as the provinces having day to day control, while the federal government sets the overall rules.

The federal and provincial legislations are both elected following the British system of federalism. Political parties compete for seats in the House of Commons. Any party gaining a majority of seats forms the government. The leader of that party becomes the Prime Minister and selects his cabinet from elected member of his party.

The number of seats in the House are determined by population and area. Some seats, like those in urban centres such as Toronto, have a disproportionately large number of voters, while some rural areas are the reverse. A party could therefore garner substantial amounts of the popular vote but fail to see it translate into real power.

Canada is geographically huge but population starved. With only about a tenth of the population of the United States a representative by population style of government was deemed to not provide adequate regional representation. As it is Ontario and Quebec still provide the majority of the seats in the House, leading to a certain amount of regional resentment.

At first glance ignoring popular vote seems undemocratic, but it actually enables accurate representation. This style ensures adequate representation from lightly populated areas and doesn’t concentrate the power of choosing the government in the hands of the urban centres.

Ironically those parties who complain the most about this system actually benefit from it. Whilst their popular vote may not translate into power, their ability to win seats with lower population bases offsets that loss. To those not used to this system it may appear strange, but it gets the job done as well as any other.

One of the oddities of the Canadian system is the non elected Senate. Loosely based on the British idea of the House of Lords, instead of inherited seats, these are awarded as rewards for serving the country. In reality they are handed out by the serving government as retirement presents.

Each province has a designated number of senators representing them, and they are replaced on retirement by the sitting federal government. Primarily they are there to rubberstamp bills passed by the house. It is only on the rarest of occasions that any bill is rejected. Even then all the House of Commons need do is re pass the motion and it succeeds anyway.

In America there is what’s known as the system of checks and balances. The three branches of government: The President, The Legislative, and The Judiciary. Canada’s Judiciary plays a similar role to their counterparts in the U.S. in that at the Superior and Supreme Court levels they ensure that bills passed by Parliament adhere to the constitution and the Charter of Rights and Freedoms.

Both countries follow similar procedures for appointing high court judges in that the sitting government is given authority to select it’s membership as vacancies occur. Due to the less extreme political climate of Canada there is usually less of a furor surrounding these appointments.

Up until twenty five years ago the Supreme Court of Canada was not even the final point of appeal. As Canada was still governed by an act of British Parliament(The British North American Act) supplicants could in theory still appeal to the British for a final judgement.

All of this changed with the repatriation of the Constitution in the early eighties by Prime Minister Trudeau’s government. After a contentious battle with the separatist government of Quebec, nine of the then ten provinces passed bills enabling Canada to have it’s own governing documents.

While the constitution itself was widely seen as symbolic, a statement of final independence from Britain, the accompanying Charter of Rights and Freedoms has become the biggest political hot potato in Canadian History.

Almost every law, act and even assumptions of behaviour have now had to be scrutinized through the lens of it’s focus. This has seen the repeal of many laws that have been ruled in violation of the Charter, and the creation of new ones to enforce the spirit of the Charter.

Any country governed by a constitution must have a system which interprets, applies, and enforces it’s rules. Since Canada, like the U.S. relies on it’s superior courts to for this role, this has led to the perception that they have unprecedented power. In actual fact all they are doing is fulfilling their duty as designated by law.

How is it the court’s fault that politicians have not taken the time to understand what their own constitution says? Politicians blaming the courts for decisions they don’t like is akin to blaming a police officer for giving you a speeding ticket when your going twice the limit. They know, or should know the law, why were they trying to circumvent it?

It is important that a constitution’s interpretation not be subject to the whims of political fashion, or subject to one groups belief system. As much as possible it should be a middle ground which extreme beliefs break upon like waves on a breakwater.

Inevitably neither side of the political spectrum is ever happy with the arbitrator. But as it is not the court’s job to please them or appease any particular philosophy their complaints sound more like sour grapes than anything else.

Although Canada and The United States have different styles of governance we share the same basic tenet: the rule of law as set forth in our constitutions and our respective Bills of Rights. Canada’s constitution guarantees everybody equal access to all the privileges of citizenship. Unless they are revoked due to behaviour counter the laws that govern the country no person shall be hindered from participating to the fullest extent in our society.

The job of Canada’s Houses of Parliament is to enact laws that respect that sentiment. It remains for the judiciary to define and ensure compliance. For better or worse both countries have chosen a variation on this theme to be their means of governance. We may not always like it, but until something better comes along, we should all be grateful for what we have, and try to make it work. Life would be a lot easier that way.

About Richard Marcus


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