Feb 1, 2012
Amendments to the constitution are not easy. In fact, procedure for amendments to the constitution vary depend on the nature of the change and the matter in question. Procedures are lengthy and complicated, and the threshold for assent is generally fairly high (majority assent is required). For some, the complexity and detailed requirements for constitutional amendment is a comfort – as it acts to safeguard important pieces of the constitution, namely, the Charter of Rights and Freedoms.
The Globe and Mail reports here that there are renewed and active discussions about constitutional amendment. The article highlights the different attempts over the last decade to make important changes in law and policy, but which have been constrained by the constitution.
Alan Hutchinson, professor at Osgoode Hall Law School has provided an interesting analysis in the Globe and Mail opinion piece he recently wrote, and challenges the notion that the constitution restrains government and political actors from making changes, or achieving their purpose. According to Hutchinson, despite all the requirements to make formal changes to the constitution:
“For the most part, change has continued apace while the texts of the Constitution have remained unaltered. The various actors – politicians, government leaders, bureaucrats, judges, and citizens – have gone about their business and been relatively unimpeded by the actual words of the Constitution…The fact is that where there is a political will (i.e., federal and provincial governments agree), there is usually a constitutional way. So, although the courts have interpreted the Constitution to prohibit the formal swapping of powers between federal and provincial governments, ingenious political devices have been used to achieve the same goals.”
Hutchinson also brings attention to the fact that Canada’s constitution is not entirely written down. The “unwritten principles” which are to inform the political system and judiciary are able to evolve. The practicality of this is not only desirable, it is undeniable and more effective.
For Professor Alan Hutchinson’s full article, click here.
For Norman Spector’s Globe and Mail article, “Demands for constitutional reform only builds”, click here.