Amending the Constitution

17 posts / 0 new

Sat, 2014-02-01 10:03

Brachina

I'm sick of the Liberals sowing ignorance on how the constitution works.

They keep suggesting that if Mulcair tries to abolish the Senate the Premier will starting making all kinds of crazy demands and we'll have choas.

The big problem with that is if an individual province wanted a specific amendment to the constitution, as long ws it doesn't impinge on say something like the senate all that is required is to pass the amendment in parliament and then pass it in the provincial leaslure, so there is no reason to make a bunch of demands to add stuff to this amendment when there is a much easier way to make amendments on a province by province bias.

Sat, 2014-02-01 22:43

JKR

I think a few provinces are not supporting Senate abolition. Namely Alberta, Quebec, Ontario, PEI, Nova Scotia, and New Brunswick. They'd probably want something in return for agreeing to Senate abolition.Quebec still hasn't signed the constitution and will want their constitutional issues dealt with before dealing with the federal Senate.

First Nations will also want their vital constitutional issues dealt with if constitutional discussions are reopened. Canada's experience with the Meech Lake Accord and the Charlottetown Accord shows how opening up constitutional negotiations opens up a lot of issues that should have been dealt with a long time ago.

A healthy country would be able to reach a compromise on a constitutional agreement. Unfortunately a separatist government in Quebec might not go along with that.

Sat, 2014-02-01 23:29

Policywonk

JKR wrote:

I think a few provinces are not supporting Senate abolition. Namely Alberta, Quebec, Ontario, PEI, Nova Scotia, and New Brunswick. They'd probably want something in return for agreeing to Senate abolition.Quebec still hasn't signed the constitution and will want their constitutional issues dealt with before dealing with the federal Senate.

First Nations will also want their vital constitutional issues dealt with if constitutional discussions are reopened. Canada's experience with the Meech Lake Accord and the Charlottetown Accord shows how opening up constitutional negotiations opens up a lot of issues that should have been dealt with a long time ago.

A healthy country would be able to reach a compromise on a constitutional agreement. Unfortunately a separatist government in Quebec might not go along with that.

The PQ government in Quebec may or may not persist for very long, and I wonder what a Quebec government of any stripe would do if all the other players agreed to Senate reform or abolition. The other elephant in the room, with respect to reforming the Senate (and abolition) is the distribution of Senate seats by province. In the case of abolition, that could be taken care of by simply giving all provinces the same minimum number of Commons seats as they have now. However it will be interesting to see what the Supreme Court says about the process.

Sun, 2014-02-02 10:07

Otavano

Given the PQ's bruhaha about 'secularism', the PQ would look ridiculous on an amendment to scrap the separate school system, especially in light of a UN Human Rights criticism of that very system in Ontario.

Another would be to guarantee at least the negative language rights of the local indigenous population (i.e. no law could restrict their right to use their language in unofficial contexts). One would think we could get non-partisan support for those kinds of things.

Granted, senate reform might be more difficult.

Sun, 2014-02-02 12:11

Bärlüer

Otavano wrote:

Given the PQ's bruhaha about 'secularism', the PQ would look ridiculous on an amendment to scrap the separate school system, especially in light of a UN Human Rights criticism of that very system in Ontario.

Are you aware that since 1997, the provisions of s. 93 of the Constitution Act, 1867 on separate denominational schools do not apply to Quebec? A constitutional amendment was required to implement Quebec's scrapping of the confessional school system.

Sun, 2014-02-02 13:08

Otavano

Bärlüer wrote:

Otavano wrote:

Given the PQ's bruhaha about 'secularism', the PQ would look ridiculous on an amendment to scrap the separate school system, especially in light of a UN Human Rights criticism of that very system in Ontario.

Are you aware that since 1997, the provisions of s. 93 of the Constitution Act, 1867 on separate denominational schools do not apply to Quebec? A constitutional amendment was required to implement Quebec's scrapping of the confessional school system.

Yes I am. I'm proposing offering to scrap it altogether Canada-wide. Quebec would be hard-pressed to oppose that given not only what you just mentioned, but especially in the context of the current debate on the 'values' charter.

Sun, 2014-02-02 13:10

Otavano

Certainly a candidate or party could brainstorm positive amendments to the constitution that would be popular and non-partisan enough to make it difficult for any party or MP or provincial legislator to vote against it. We might not be talking about any significant changes, but given how slowlyhe constitution changes, even small changes should be viewed as positive.

Sun, 2014-02-02 13:26

Unionist

Otavano wrote:

Yes I am. I'm proposing offering to scrap it altogether Canada-wide. Quebec would be hard-pressed to oppose that given not only what you just mentioned, but especially in the context of the current debate on the 'values' charter.

I really really hesitate to ask, but: Why are you talking about confessional schools and Québec? Is this supposed to be a hypothetical example of something, with some point being made? You've lost me, I'm afraid.

And why would Québec object to scrapping, Canada-wide, what it and Newfoundland & Labrador have already done themselves? Especially since Ontario and Alberta could be counted on to veto it.

Or are you just trying to leverage in your linguistics conversation? I don't mind - just trying to predict the shifting ground rules here.

Sun, 2014-02-02 13:56

Brachina

JKR wrote:

I think a few provinces are not supporting Senate abolition. Namely Alberta, Quebec, Ontario, PEI, Nova Scotia, and New Brunswick. They'd probably want something in return for agreeing to Senate abolition.Quebec still hasn't signed the constitution and will want their constitutional issues dealt with before dealing with the federal Senate.

First Nations will also want their vital constitutional issues dealt with if constitutional discussions are reopened. Canada's experience with the Meech Lake Accord and the Charlottetown Accord shows how opening up constitutional negotiations opens up a lot of issues that should have been dealt with a long time ago.

A healthy country would be able to reach a compromise on a constitutional agreement. Unfortunately a separatist government in Quebec might not go along with that.

Your comparing apples to oragnes. Meech Lake was a massive rewrite of the constitution, not simply an Amendment, and if any province wanted some sort of side deal there are better ways to faciliate that using the one province amending formula. And no Premier has shown any signs of attaching demands to this one Amendment. G

Meech failed because they tried to fix everything at once, with an Asymetrical approach using the one Province formula for most of it they can address most concerns. You break down into one piece at a time, you can fix the constitution over time, instead of all at once like Mulrony tried to do. Mulrony tried to fix everything at once in a massive rewrite, instead of single focused thing.

So we can address the Native American issue, later Seperately, we can address the issue of Quebec signing the constitution seperately (which is much more easily addressed using the one province amending formula), and so on for any hypothetical changes.

You make it clear to all concern parties that one issue will be amended at a time to ease complexity and passage, but that it doesn't mean thier issues will not be addressed, but that its one piece at a time to keep things under control.

I give you an example, if Mulrony had set aside Distinct Society into a seperate single provincial amendment which only requires Parliament and the Quebec National Assembly to sign, a big chunk of the opposition to was it meech or charletown I forget, would have disappeared, Quebec would still have gotten what it wanted.

Mulrony wasn't just trying to make an amendment, he was trying to rewrite the constititution andnfix it all at once, we're just trying to fix one thing, big differernce.

Sun, 2014-02-02 16:13

#10

Otavano

Unionist wrote:

Otavano wrote:

Yes I am. I'm proposing offering to scrap it altogether Canada-wide. Quebec would be hard-pressed to oppose that given not only what you just mentioned, but especially in the context of the current debate on the 'values' charter.

I really really hesitate to ask, but: Why are you talking about confessional schools and Québec? Is this supposed to be a hypothetical example of something, with some point being made? You've lost me, I'm afraid.

And why would Québec object to scrapping, Canada-wide, what it and Newfoundland & Labrador have already done themselves? Especially since Ontario and Alberta could be counted on to veto it.

Or are you just trying to leverage in your linguistics conversation? I don't mind - just trying to predict the shifting ground rules here.

People fear opening the Constitution because of the sovereignist threat, and so don't even bother trying to change it at all. The point is that there are certain aspects of the Constitution that could be changed simply by Parliament and the legislatures without much ado (though I acknowledge I could be wrong on this if support for the Separate Schools is stronger than I believe it to be). It would be a minor change, but one thing that can be changed.

As for any relationship to linguistics, I don't see any as such except possibly the parallel to the B&B Commission's notion of 'two founding races'. Historically the English Canadians tended to be Protestant and French Canadians tended to be Roman Catholic. However, while Anglo-French hegemony is here to stay for the forseeable future, I get the impression that there might be room to level the playing field on the religious front at least. On the language front, guaranteeing at least the negative language rights of the indigenous peoples might be a possibility when we consider that the Canadian Charter of Rights and Freedoms was written at the height of the residential school period which likely explains the lack of mention of indigenous language right contrasted to extensive and detailed coverage of the positive rights of the two dominant ethno-linguistic majorities. Including at least the negative language rights of indigenous peoples in the Canadian Constitution might be possible in this reconsiliation period of Canadian history. For one thing, it would be symbolically sygnificant, however small a gesture as it may be. But in concrete terms, it would also exempt the local indigenous language from Bill 101 off reserve, and could possibly give some moral force to promoting more indigenous rights in general. And again, I don't see from what angle anyone could oppose guaranteeing the negative language rights of indigenous peoples seeing that it would not cost the government 1 cent, and would even save the government money in enforcement.

Sun, 2014-02-02 16:17

#11

Otavano

Brachina wrote:

JKR wrote:

I think a few provinces are not supporting Senate abolition. Namely Alberta, Quebec, Ontario, PEI, Nova Scotia, and New Brunswick. They'd probably want something in return for agreeing to Senate abolition.Quebec still hasn't signed the constitution and will want their constitutional issues dealt with before dealing with the federal Senate.

First Nations will also want their vital constitutional issues dealt with if constitutional discussions are reopened. Canada's experience with the Meech Lake Accord and the Charlottetown Accord shows how opening up constitutional negotiations opens up a lot of issues that should have been dealt with a long time ago.

A healthy country would be able to reach a compromise on a constitutional agreement. Unfortunately a separatist government in Quebec might not go along with that.

Your comparing apples to oragnes. Meech Lake was a massive rewrite of the constitution, not simply an Amendment, and if any province wanted some sort of side deal there are better ways to faciliate that using the one province amending formula. And no Premier has shown any signs of attaching demands to this one Amendment. G Meech failed because they tried to fix everything at once, with an Asymetrical approach using the one Province formula for most of it they can address most concerns. You break down into one piece at a time, you can fix the constitution over time, instead of all at once like Mulrony tried to do. Mulrony tried to fix everything at once in a massive rewrite, instead of single focused thing. So we can address the Native American issue, later Seperately, we can address the issue of Quebec signing the constitution seperately (which is much more easily addressed using the one province amending formula), and so on for any hypothetical changes. You make it clear to all concern parties that one issue will be amended at a time to ease complexity and passage, but that it doesn't mean thier issues will not be addressed, but that its one piece at a time to keep things under control. I give you an example, if Mulrony had set aside Distinct Society into a seperate single provincial amendment which only requires Parliament and the Quebec National Assembly to sign, a big chunk of the opposition to was it meech or charletown I forget, would have disappeared, Quebec would still have gotten what it wanted. Mulrony wasn't just trying to make an amendment, he was trying to rewrite the constititution andnfix it all at once, we're just trying to fix one thing, big differernce.

Stedy Eddy, one step at a time. Exactly. If we targetted rewriting one thing at a time, focussing on moderate changes that we could gain pupular support around and making it non-partisan and as consensus based as possible, it could work, and once we solve a few problems in the constitution, it makes further changes easier over time.

Sun, 2014-02-02 16:20

#12

Otavano

Also, if we satisfy ourselves with really moderate amendments extending negative rights for example, that eliminates opposition, allowing us to reamend it again later to some positive rights. But if we start with positive rights right off the bat, guaranteed one group will sink it saying it goes too far, especially when dealing with politically relatively insignificant voting minorities such as indigenous peoples and the deaf (thinking sign language rights for example) compared to the big two.

Sun, 2014-02-02 16:38

#13

Brachina

What are negative rights?

Sun, 2014-02-02 17:11

#14

Unionist

I think he means, like, the right not to be discriminated against on grounds of gender, or the right not to be incarcerated without due process, etc.

There's really no difference between "negative" and "positive". Each can be re-framed as the other. E.g., the right to abortion = the right of a woman not to be forced to carry a pregnancy to term. Same difference.

Mon, 2014-02-03 00:22

#15

NDPP

Some excellent and perceptive observations on the Canadian constitution and those who 'stand on guard for thee' by a critical voice:

Rocco Galati on Globalization (MP3)

http://www.globalresearch.ca/the-peoples-fighter-rocco-galati-on-globali...

"Galati argues that the afore-mentioned trade agreements, in so far as they are being implemented without the approval of the Canadian Parliament are unconstitutional. Galati provides an update of the case he is championing against the Bank of Canada."

Mon, 2014-02-03 15:10

#16

Otavano

Brachina wrote:

What are negative rights?

There are differing definitions of negative rights, and the distinction between negative and positive rights can sometimes be amgiguous along a spectrum.

In general terms, a positive right imposes an obligation on the government to actively do something to promote the right. A negative right imposes an obligation on the government to not do something to restrict freedom. As an example, a negative right to speak my language would mean the government is not allowed to prohibit or obstruct my use of it, but has no obligation beyond that. A positive language right would mean the government has an obligation to take active measures to increase my opportunities to use the language.

Taking the negative right to the local indigenous language as an example along the negative-positive spectrum, at one extreme end of the negative rights spectrum, the government would be prohibited from passing any law that explicitly prohibits my use of the local indigenous language, but still has no obligation to exempt me from any law that may restrict it indirectly. For example, Quebec's Bill 101 does not prohibit me from using the local indigenous language, so even though it would require French to be predominant it would technically not violate my negative right in that sense. Likewise a federal law requiring a company to provide services in English and French would not violate this right as long as I'm theoretically allowed to also include the local indigenous language should i stil have funds remaining to do so.

Shifting slightly closer to the positive rights spectrum but still on the negative side, we could say that the negative right to the local indigenous language would mean having to exempt my language from laws that my restrict my use thereof. For example, if a business sign includes the local indigenous language, it could not be prohibited for lack of French, or a company that provides services in the local indigenous language would be exempted from any law requiring service in English or French, since these could potentially redirect funding that could potentially indirectly restrict the local indigenous language.

Shifting yet further to the positive rights spectrum but still on the negative rights side, we could propose the negative right to non-distinction. This would mean that whatever rihgts, positive or negative, that are granted to the English and French ethnic majority groups would also apply to the local indigenous language. For example this would include the right to government services inthe language, language of education rights, etc. Unlike real positive rights however, this would tehnically be just the negative right to non-distinction, meaning that if the positive rights to the English and French languages shodl be removed, then so would those for the local indigenous language.

Shifting further, then we'd essentially find ourselves in positive-rights territory. Personally, I'd rather grant the right to non-distinction to the local indigenous language in the Canadian Charter of Rights and Freedoms, but recognizing that many would likely oppose non-distinction between the two dominant ethnic groups and indigenous peoples, some kind of lesser negative rights would still be a step in the right direction.

Mon, 2014-02-03 15:17

#17

Otavano

Unionist wrote:

I think he means, like, the right not to be discriminated against on grounds of gender, or the right not to be incarcerated without due process, etc.

There's really no difference between "negative" and "positive". Each can be re-framed as the other. E.g., the right to abortion = the right of a woman not to be forced to carry a pregnancy to term. Same difference.

The negative right would be to not prohibit a woman from having an abortion. The positive right would be the right of the woman to have the opportunity to abort provided for her, imposing a positive obligation on the government. Essentially a negative right imposes a negative obligaton on the government (an obligation to not do something), a positive right imposes a positive obligaton (an obligation to do something).