The Crown and its capacities

The Supreme Court of Canada touched on one of my favourite topics today: the various capacities of the Crown. Brown J., in particular, offered a strong defence and explanation of the Crown’s distinct capacities and how the courts must differentiate them.

The Crown serves many functions in the Westminster system. The Crown serves as the concept of the state. It can mean the Sovereign or the monarch. The Crown can also refer to the executive generally and sometimes Cabinet. In other cases, the Crown can refer to one part of Parliament. And the Crown has a role in the courts, too. Many of these functions seem to overlap and appreciating their differences can be especially difficult because the Crown is personified by a single person, the Queen. But understanding how they are differ is vital to grasping how Westminster states operate.

Take the Crown as the state. Since the both the United Kingdom and Canada have Queen Elizabeth II as their Sovereign, we might conclude that they are under the same Crown and are part of the same state. The Crown’s distinct capacities avoids this confusion. The Queen has many different capacities. One of those capacities is as the Queen of the United Kingdom. Another is as the Queen of Canada. These are distinct capacities. The Crown as the state mirrors these capacities as well. Thus, we have the Crown of the United Kingdom as the concept of the British state and the Crown of Canada as the concept of the Canadian state.

Within Canada, the Crown has distinct capacities as the personification of the federal government and the provincial governments. The Crown also has distinct capacities with respect to the organs of the state. The Crown as the executive power acts in a governing capacity. The Crown-in-Parliament is the Crown acting in a legislative capacity. And the Crown in the courts is the Crown acting in a judicial capacity.

One of the questions before the SCC in Mikisew Cree First Nation v. Canada was whether the duty to consult First Nations under the honour of the Crown applies to the Crown writ large or to the Crown in a specific capacity. A majority of the court found that the duty to consult First Nations is attached to the Crown in an executive capacity, rather than the Crown in a legislative capacity as part of Parliament. The honour of the Crown toward First Nations belongs to the Crown as the executive power, not the Crown-in-Parliament. The majority further found that the separation of powers and parliamentary sovereignty meant that the courts should not review the legislative process to ensure that the honour of the Crown had been respected. The duty to consult and the honour of the Crown are tied to executive actions and actors, not legislative ones.

Brown J. adopted a particularly strong view of these distinctions in his opinion. He notes, for instance, that the duty to consult binds ministers of the Crown in their executive capacity. It does not bind them in their legislative capacity:

“While Cabinet ministers are members of the executive, they participate in this process –for example by presenting a government bill– not in an executive capacity, but in a legislative capacity.” (113)

Brown further clarifies that, under the separation of powers and parliamentary privilege, the constitutional duty to consult First Nations must be “understood as excluding the parliamentary (and, indeed judicial) functions of the Canadian state” (128). This, in turn, implies that the honour of the Crown does not pertain to the Crown’s legislative functions and capacities as one part of Parliament, alongside the Senate and House of Commons. When the Crown acts in a legislative capacity, granting assent or consent to legislation, and recommending bills, the Crown is not involved in conduct that is bound by the duty to consult:

“This description of the various and distinct aspect of Crown authority (and also, it follows, Crown conduct) affirms that the exercise of Crown authority in enacting legislation (“assenting, refusing to assent to, or reserving legislative or parliamentary bills”) is legislative. It is not an instance of ” Crown conduct” –that is, executive conduct– which can trigger the duty to consult.” (133)

One take-away from today’s ruling is the importance of being specific about which capacities are in play when discussing institutions and actors who have more than one. An individual may be both an MP and a minister, but they can fulfill distinct functions and exercise unique powers in their separate capacities. Similarly, the Crown as the executive power is not the same thing as the Crown-in-Parliament. While we often speak of the ‘fusion’ of the executive and legislature in the Westminster system, that link is primarily one based on constitutional convention and parliamentary practices, rather than law.

Finally, if we follow Brown’s reasoning, we may have an answer to a lingering question about the Crown in Canada: does the Crown act on the advice of ministers or the houses of Parliament when granting royal assent? If we focus solely on the conventions of responsible government as they pertain to the executive, we might argue that ministers could advise the Crown to withhold assent, effective giving ministers a veto over legislation. If, as Brown argues, however, the Crown grants royal assent in a legislative capacity, then assent it granted on the advice of the house of Parliament, meaning that there is no ministerial veto in Canada.

(Ok, one last thought: Maitland was wrong.)



Still the Premier

The recent election in New Brunswick highlighted a rare and poorly understood aspect of government formation in Canada: a first minister (FM) can remain in office and test the confidence of the legislature first, regardless of the election results.

New Brunswick Premier Brian Gallant has chosen to remain in office, despite the fact that the Liberals were elected with 21 seats, compared with 22 seats for the Progressive Conservatives. Gallant is hoping to secure an agreement with either the Green Party or People’s Alliance, each of which won three seats, in order to secure the confidence of the legislature and stay in power. In addition to reminding us that governments are formed and not elected in Canada, Gallant’s decision provides us a new precedent of a FM bucking the Canadian tendency to resign if their party does not carry most ridings.

Why is Gallant able to remain FM? A common explanation is that this is a constitutional convention, an unwritten political rule that guides how powers are exercised and decisions made in Westminster systems. While this explanation is quite common, it’s not quite right. Although there are constitutional conventions at play in a FM’s ability to test confidence first, it isn’t a convention that they can. Rather, the FM can test confidence first because of the office they hold and the rules that govern how they hold that office.

How do we identify constitutional conventions? In Canada, the Supreme Court has endorsed the ‘Jennings test’. The test tells us that rules must meet three conditions to count as constitutional conventions. First, there must be precedents; second, political actors must believe that there is a binding rule; and, third, there must be a reason for the rule.

The ability of a FM to test confidence first only meets one of these conditions: there are precedents. Perhaps the best known of these is William Lyon Mackenzie King’s decision to remain Prime Minister following the 1925 federal election, where his Liberal party won 100 seats compared with the 115 seats won by the Conservatives.

What about the second condition? There’s no longer a general agreement on the fairness or legitimacy of a FM testing the legislature first. In fact, the leader of the party that wins the most seats usually disagrees with this notion quite viscerally. Equally important, it’s unclear how we can say that this is a binding rule. The FM isn’t bound to test confidence first; it’s their choice. The other members of the legislature are bound to accept it, but those from other parties are prone to questioning the decision. This further suggests that that there isn’t a convention at play here, but something else.

Turning to the third condition, it is difficult to see what rationale would underpin a convention here. The democratic logic of having the FM test confidence first, regardless of the election results, is hard to discern. Proponents of direct democracy want to link the selection of the FM to the voter’s choice (see, for instance, those who declare that elections are actually about who the voters want as FM), while advocates of parliamentary democracy would probably want the legislature to vote for the FM, as happens in Scotland. In addition, other Westminster-inspired states have done away with the FM’s right to stay on, since it seems to run contrary to democratic proprietary.

Stability of government might be another rationale, but this doesn’t hold either. When a FM stays on, and their ability to secure confidence is unclear, the government is constrained by caretaker conventions that weigh against non-routine decisions by ministers. Instead of bringing stability to government, allowing the FM to stay on before to test confidence, sometimes for months before the legislature sits, fosters uncertainty. Simply put, there is no reason for this rule, at least not one that that would meet the standards of a constitutional convention.

So, if it isn’t a convention that the FM gets to test confidence first, then what is it? The answer lies in the nature of responsible government in Westminster constitutional monarchies.

The office is First Minister is bestowed by the Crown. It’s legally independent of the legislature and the electoral process. The first principle of responsible government is that ministers advise and take responsibility for the Crown and all affairs of government. Since the 18th Century, this principle has evolved such that a FM advises the Crown and takes responsibility for all acts of the Crown and all affairs of government. Consequently, the appointment of a FM cannot be directly tied to electoral outcomes or the make-up of the legislature at a given time. The Crown needs to ensure that there’s a FM, even during elections, and during the period between election day and when the legislature is recalled. Over time, the necessity of always having a FM has developed to ensure that FMs remain in office until they resign or are dismissed.

Resignations are fairly common. FMs often indicate their intent to resign if their party fails to win the most seats on election night or if their opponents win a majority of seats. FMs can also resign if they lose a confidence vote, though they’ll usually do so after a request to dissolve the legislature is refused by the Crown. The dismissal of a FM, by contrast, is very rare –so rare that it hasn’t happened in some time in Canada. Dismissal is effectively an emergency power. The Crown should only exercise it if a FM is refusing to recall the legislature, acting in an unconstitutional manner, under criminal investigation, or no longer has the mental capacities to serve. In most normal circumstances, the FM will remain FM until they resign, usually following an election that has been unfavourable to their party, after the Crown has refused their request for dissolution, if they have lost a confidence vote, or if they are making way for a new leader from their party.

Accordingly, FMs can test confidence first because the Crown must have a FM at all times and the Crown will not dismiss the FM unless they are involved in unconstitutional or criminal activity. Put differently, the FM can test confidence first because they remain in office until they resign or are dismissed. Convention dictates that they resign if they lose a confidence vote and cannot secure a dissolution from the Crown. But they are not required to resign before that confidence vote is held, and the Crown will not dismiss them if they are planning to recall the legislature to test confidence. In extreme circumstances, the Crown could dismiss a FM who is refusing to recall the legislature to avoid a confidence vote. But in nearly all cases, the Crown should allow the legislature to sit and express itself before acting, especially if the issue is the dismissal of a FM who might not hold confidence and the appointment of an alternative FM who might not hold confidence, either. Whenever possible, the Crown should allow the legislature to express itself first.

The ability of an FM to test confidence first, therefore, is a function of the office they legally hold by virtue of the Crown’s appointment and of the conventions that surround the duty of the Crown to have a first minister, and the grounds for the resignation or dismissal of a first minister. Constitutional convention is involved here, but it isn’t a convention that says that the FM gets to test confidence first. Rather, what’s at play is that the FM is FM until they resign or are dismissed, as per constitutional convention.

In conclusion, it’s worth asking why this privilege of Canadian FMs seems so strange. Basically, it strikes us as odd because it reflects the monarchical origins of our system of government, rather than our contemporary democratic mores.





The Problem with Mandate-Talk

Talk of government ‘mandates’ is damaging our politics and undermining our institutions. The concept doesn’t hold up in our system of government and it’s worsening our debates and disagreements. We should stop talking about how elections give governments mandates or that governments should hold elections to secure new mandates.

Politicians and commentators use mandates to mean the following: if a political party has a policy proposal in their electoral platform, and they get elected with a majority of seats, then then voters have endorsed this policy proposal. Put simply, the government has a ‘mandate’ from voters to pursue that policy. Conversely, if a government pursues a policy that wasn’t part of their electoral platform, then we can say they lack a popular mandate to enact it, particularly if the initiative is controversial. We can also use mandate to mean the underlying democratic legitimacy of a government. For example, if a government has been in power for a while and it needs to enact new policies or engage in difficult negotiations with provinces, other states, or some other powerful actor, then we can speak of the government seeking a new mandate from voters to do so.

What are the problems with this concept? Let’s start with our electoral system and constitutional structure.

Governments aren’t elected in Canada. They are appointed. The Crown appoints a first minister to lead a government based on their ability to hold the confidence of the elected house of the legislature. When a first minister’s party has a majority of seats in the elected house, they’re pretty much guaranteed to hold its confidence. When they hold a minority of seats, they need to negotiate with another party to hold confidence. In either situation, though, government formation and duration revolves around the first minister and the elected house. Voters don’t directly elect their governments, let alone their first ministers. They elect members of their legislature who then provide or withdraw confidence in a government.

Canadians elect members of the legislature by plurality, rather than majority. This means that the person elected to sit in the legislature needs the most votes of all the candidates, not a majority of votes. As a result, members are often elected with less than 50% of the votes in an election. Members routinely represent ridings where more than 50% of those who voted didn’t vote for them or their party’s platform. Of course, this isn’t always the case. Many members do get more than 50% of the votes in their riding. But they have no more standing or status than members who got less than 50%.

Parties, moreover, often win a majority of seats in the legislature with less than 50% of the popular vote. Roughly speaking, parties can win a majority of seats in the federal Parliament with somewhere above 37% of the popular vote. This doesn’t affect the formal power they’ll hold in government. A majority is a majority, regardless of what percentage of people voted for individual governing party members at the riding level or as a percentage of the aggregated popular vote. The key point here is that the composition of the legislature, and hence the government’s ability to hold confidence, doesn’t depend on securing the support of a majority of voters, only a plurality of voters in each riding, in a majority of ridings.

What does this tell us about mandates? Well, it tells us that majority governments can be formed without the support of a majority of voters in each riding. We can and often do have majority governments where a majority of voters have not endorsed their platform or their members. In what sense, then, can we speak of these governments having a mandate? Only in the sense of having a mandate from a plurality of voters, not a majority of them. This then raises the question: what good is the idea of a plural mandate if it necessarily implies that the mandate was not supported, and in fact rejected, by the majority? Not much, in my view.

Does this mean our governments our illegitimate? No. It simply means that it doesn’t make much sense to speak about popular mandates under an electoral system that relies on pluralities and on governments that are appointed based on their ability to hold the confidence of the legislature. Rather than speaking about mandates, we should speak about what actually matters in terms of the government’s authority: the number of seats it has in the legislature. Removing popular mandates from the discussion avoids the often erroneous conflation of a majority of seats and a majority of votes, and it focuses our attention on the tangible source of a government’s democratic legitimacy, the support of the legislature. It restores the elected house of the legislature to its proper place as our principle democratic forum and source of governing legitimacy.

Equally important, it would prevent our governments from equating their majority standing in the legislature with a majority of support from voters that that they may not actually have. Similarly, it would prevent opposition parties from pointing to the government’s lack of a majority in the popular vote as some kind of argument against the legitimacy of a ministry that holds the confidence of the elected house. In both cases, it would cool bad, distorting rhetoric.

The second problem with mandate-talk is the assumption is makes about voters.

Mandate-talk assumes that people vote rationally, coherently, and with perfect information. Specifically, it assumes that voters are aware of all the proposals in all party platforms, that in voting for one party over another the voter is endorsing all of the chosen party’s proposals, and that the absence or inclusion of a particular proposal could have a demonstrable effect on an electoral outcome.

Unfortunately, the literature doesn’t support the idea of the rational, coherent, and perfectly informed voter. People’s voting choices are driven by myriad factors, some of which aren’t rational or thought out. Some of these factors aren’t even conscious! In some cases, voters are voting against one party, rather than for another vote. They may be voting because they like only one proposal being offered by a party. They might be loyalists who will vote for their preferred party no matter what they propose in their platform. Who knows. In fact, that’s the key point: we simply don’t know why every voter voted the way they did. Nor can we say with confidence that the result would have been different if we added or subtracted a proprosal from a platform after the fact.

The problems for mandate-talk should be evident. We don’t know if voters knew about all the proposals in a party’s platform, whether they endorsed all of them or some of them, whether they voted for the party in spite of them, or whether they still support them. Mandate-talk assumes that we can glean information about voters and their intentions that are incredibly difficult to accurately capture. When we speak about the relationship between party platforms, voting behaviour, and mandates, we’re engaging in gross simplifications in order to tell a story. It may be a good story. It may be a compelling story. It may even be a useful story. But it’s still storytelling.

Why does all this matter? It matters because mandate-talk tries to draw a direct connection between voters and governments at the expense of legislatures that have already been weakened by party discipline and an inability of caucuses to select their own party leaders. It matters because it further distorts our understanding of how our system of government works, leaving us vulnerable to manipulative rhetoric and dishonest characterizations. It matters because the logic of mandates can’t stand up to simple scrutiny. It matters because it’s not necessary.



The Sovereign Grant as a Monarchical Annuity

Unable to focus on writing owing to Ottawa’s heat wave, I spent a couple of hours debating a British journalist about whether or not the Queen is taxpayer funded in the UK. (Ok, I procrastinated.)

His argument was essentially that the Queen’s annual Sovereign Grant is paid by the Treasury, therefore the Queen is taxpayer funded. Since the Treasury uses taxes to pay for the expenses of the British state, it follows that Queen is being funded by taxpayers because she receives an annual sum of money from the Treasury.

My counterargument is that the Queen is given the Sovereign Grant in exchange for surrendering to the Treasury the profits of the Crown Estate, property owned by the Queen in her legal capacity but managed by independent trustees. This arrangement dates back to 1760, when the money the monarch accrued from Crown lands were insufficient to fulfil the Sovereign’s government responsibilities. Parliament agreed to fund the monarch through an annual Civil List payment in exchange for the revenue generated by certain Crown lands. Since that time, the British government has grown significantly, and the Sovereign is no longer directly involved in governing. Taxes and other revenue collected by the state now pay for most of the expenditures of the British state. In the mid-twentieth century, the Crown lands whose profits had been surrendered in exchange for the Civil List were reconstituted as the Crown Estate to “avoid confusion between Government property and Crown land”. Finally, in 2011, the Civil List was abandoned in favour of the Sovereign Grant, which provides the monarch with an annual disbursement from the Treasury indexed at a certain percentage of the profits the Crown Estate provides the Treasury per year. The purpose of the Sovereign Grant is to pay for expenditures related to the Queen’s remaining official duties as head of state. In 2011, the Sovereign Grant was indexed at 15% of the Crown Estate’s profits and in 2017-2018 it is indexed at 25%.

To my mind, the relationship between the Crown Estate and Sovereign Grant is reciprocal. The Queen is paid a portion of the Crown Estate profits to fulfil her duties, while the Treasury gets to keep the rest. Having the Crown Estate profits go to the Treasury and having the Sovereign Grant disbursed by the Treasury, moreover, ensures that Parliament can scrutinize both the management of the Crown Estate and the disbursement of the Sovereign Grant more effectively.

For the British journalist and those who agree with him, however, this is all a mirage. The Crown Estate has essentially been absorbed by the British state and it belongs to the monarch in name only. Indeed, saying that the Queen owns the Crown Estate in a legal capacity simply means that the property is now publicly owned, since the Queen’s legal capacity is the concept of the state in the United Kingdom. As a result, the Crown Estate’s profits are public funds, like taxes the British government collects from its citizens, and the Sovereign Grant is therefore taxpayer money that Parliament has told the Treasury to give the Queen. The fact that the money comes from the Treasury and not from the Crown Estate directly proves that the Queen is taxpayer funded, regardless of what historical arrangements surround the Estate and Grant.

In the end, this is a conceptual debate. I think the history and nature of the arrangement matter; it isn’t accidental that the Estate and Grant are almost always presented as intimately linked. The Treasury serves to make the transfer of funds more transparent, open to parliamentary scrutiny, and it simplifies the government’s ability to keep most of the Estate’s profits while paying the Queen the percentage required in a given year. My interlocutors believe that the money found in the Treasury’s consolidated fund comes from the taxpayer, broadly defined.

To help make my case, I’ll conclude by offering an analogy. The Sovereign Grant is like an annuity you can buy from an insurance company. The way an annuity works is as follows: you pay an insurance company a lump sum in exchange for an annual pension. The insurance company bets that it can make more money off interest and people dying before the total of the lump sum is paid out, and you get the security of having an annual pension if you live past what your lump sum would have provided in your dying years. The thing with annuities, though, is that you can’t get your lump sum back after you pay it. Nor it is in a protected account. The insurance company uses the money to do whatever it needs to do in a given year, paying out claims, etc. Similarly, the money you get can come from whatever other sources of revenue the insurance company has, such as premiums paid by other clients. But it doesn’t matter, since the insurance company has agreed to pay you a set amount.

The question then is this: who pays for your annuity? We know it’s the insurance company. But when we ask where the money comes from, we can either say from the lump sum we paid the company or from the premiums that the company collects from other clients. Put differently, did your lump sum buy you your annuity or are you living off the premiums paid for by other clients? I’d say your annuity comes from your lump sum agreement.

In the case of the Sovereign Grant, the agreement to surrender the profits of the Crown Estate is like an annual lump sum paid by the Queen for a yearly annuity. She agrees to give the profits in exchange for a guarantee that she receives an annual disbursement to cover her official expenses. The Treasury is like the insurance company in the sense that it places the Estate profits in a consolidated fund and uses them as needed. Taxes paid by citizens are like the premiums the company’s other clients pay. The one big difference here is that the company, the Treasury, always comes out on top, since the annuity is only a percentage of the annual lump sum. But what happens if the Treasury spends more than it takes in? Does that mean that the Treasury’s other clients, the taxpayer, are on the hook for the Queen’s Grant? Only if you also think that an insurance company’s other clients are paying for your annuity with their premiums.



Ontario’s Flawed Standing Orders under a Hung Parliament

The Standing Orders of Ontario’s legislative assembly have a notable flaw and this election may expose it.

The flaw is this: under section 44 of the assembly’s Standing Orders, the opposition can’t hold a non-confidence vote without the governing party’s agreement. This rule is likely meant to provide some stability, but it goes against a core tenet of responsible government: namely, that the government should hold the confidence of the elected house of the legislature. If the government has a veto over when a vote of non-confidence can be held, the executive may be able to indefinitely delay any opposition effort to make the ministry fall. This is particularly problematic during a hung parliament, when the opposition holds more seats than the governing party.

We can contemplate of a number of scenarios where this rule will cause problems once the election results are announced.

Imagine, for instance, that the Conservatives win a plurality of seats and Premier Wynne resigns on election night, before negotiating any kind of agreement with the NDP. In this context, the Lieutenant Governor would likely call upon Ford to form government.

Once that happens, the Liberals and NDP would have limited options to bring down his government and replace the Conservatives without an election. Their best bet would be to make that government fall as part of the reply to the throne speech, but it’s unclear if voting against the throne speech counts as a matter of non-confidence under the definition found in the Standing Orders.

Of course, constitutional convention would hold that defeating the throne speech or a money bill should automatically count as a confidence vote, but the Standing Orders create ambiguity that could be exploited by a government. And even if the reply to the throne speech does obviously count as a matter of confidence, this implies that the Liberals and NDP will have a short amount of time to negotiate some kind of agreement, unless they are willing to risk another election.

Were the government voted down on the throne speech, the Lieutenant Governor would likely call upon the leader of the party the second largest number of seats. Yet it’s possible that the Lieutenant Governor would accept advice to dissolve the legislature if the two smaller parties don’t have a clear plan to hold confidence, particularly if a few months have passed since the election.

In a proper parliamentary system, the opposition parties wouldn’t have to depend on the throne speech alone to defeat the government shortly after an election. Yet Ontario’s Standing Orders seem to give the opposition only one chance to get organized, negotiate a deal, and replace the government before the governing party can veto further attempts to withdraw confidence.

Government formation: formal rules, informal customs

With the Ontario election underway, we’re back to discussing the rules of government formation in Canada.

Mark Jarvis has a useful summary of the rules here.

Hugo Cyr has a comprehensive discussion of the conventions here.

In addition to these resources, I’d highlight the following points.

The Premier stays the Premier until she resigns or is dismissed by the Lieutenant Governor. This is the reason that first ministers have the right to meet the legislature first, regardless of the results of an election. The Premier can always try their chance at meeting the legislature to demonstrate or regain confidence. The Premier can even do this if they know they’re going to lose a confidence vote. Until they resign, they remain the Premier and therefore have the right to test confidence.

The Lieutenant Governor, meanwhile, won’t dismiss a Premier unless they’ve lost a confidence vote, they still refuse to resign, and there’s an alternative government that can carry confidence. (Needless to say, that’s never happened in Canada.)

Now, it’s customary for Canadian first ministers to resign after an election is another party has won a majority of seats. And it’s also customary for first ministers to resign if another party has won a plurality of seats. But it’s not a constitutional convention that a first minister must resign if another party wins a plurality of seats during an election –despite what the Supreme Court suggested. In that situation, the first minister still has the option of trying to hold confidence by working with a third party. Here again, this is not all that common in Canada, but it’s possible.

This discussion may seem academic, but it’s important. As we’ve seen already in this campaign and in the last election in British Columbia, political parties will distort how our system of government operates for political gain or survival. If the Ontario election doesn’t result in a majority, the party that has the most seats will surely declare victory and argue that the ‘will of the people’ must be respected. However, the two other parties may be able to come to arrangement that would keep the party with a plurality of seats from governing. This may not be Canadian custom, but it is entirely constitutional. 

Don’t let any partisan tell you otherwise.


The Supreme Court and Constitutional Change: Veto Player or Forcing Function?

The Supreme Court’s ruling in Comeau was disappointing. When offered the chance to bring some balance between section 121 and provincial powers, the Court swung hard toward the latter. In a typically Canadian fashion, the interests of governments took precedence, and will continue to take precedence, over the interests of consumers. We shouldn’t be too surprised by this. The people are absent from the Canadian constitution. We are a country of Crowns and legislatures, regions and minorities, not a state with a sovereign, unified people. Ultimately, Comeau reflects this reality.

The interpretive problems with the Comeau ruling have been addressed by legal scholars (here and here) and a political scientist who specializes in the Court and the Constitution. I’m not qualified to comment on their analyses, but they’re fairly convincing to this lay reader.

What I can comment on is the Court’s approach to institutional change. As Craig Forcese noted yesterday, it’s hard not to notice that the SCC is encasing Canadian institutions in amber. The Court is becoming a significant status quo player when it comes to institutional change. (Dennis Baker and Mark Jarvis have a great book chapter on this issue in Macfarlane’s book.) While we might hope that the Constitution could be a living tree when it comes to how we govern ourselves, the Court is basically telling us that we have to accept that it’s a dead stump.

What’s the Court trying to accomplish here?

One answer is that the SCC has an inherent status quo inclination. I could accept this if the Court demonstrated a similar inclination when applying the Charter.

Another possibility is that the Court thinks that institutional change should come from politicians, not the judiciary. If that were the case, one would expect the Court to be more accepting of incremental changes forwarded by governments and legislatures. I don’t think we’ve seen much of that.

A third possibility is that the Court is subtly telling us that we can’t avoid constitutional negotiations forever –that these rulings are meant to serve as a forcing function. Seen in this way, the SCC is saying that it won’t make the changes that should be properly negotiated between governments. Paradoxically, the Court may be using its power as a status quo player to force Ottawa and the provinces to accept that they will need to reopen the constitution if they want to address Canada’s constitutional deficiencies.

If this is what the SCC is doing, then there’s something valuable about their approach. Allowing our institutions to drift along isn’t setting Canada up for success over the long-term. Indeed, one of the biggest threats to Canadian prosperity may be the inability/unwillingness to update our institutions to meet contemporary problems. Otherwise, as Fukuyama warns us, we face the prospect of political decay and its rather serious consequences.

I’m probably wrong about what the SCC is doing. Maybe the Court is simply being craven or pragmatic. But I hold out some hope that the justices aren’t simply being veto players for the sake of being veto players.