Writing Canada's Political Constitution.

• Author: Lagasse, Philippe

Introduction I. Comparative Codifications A. Calls for a Canadian Cabinet Manual II. Beyond a Cabinet Manual: Codifying the Canadian Political Constitution A. International Benchmarks B. Types of Rules to Codify C Subject Matter of a Guide III. Anticipated Challenges and Questions IV. Encouraging Political Responsibility for the Constitution A. Use by the Executive B. Use by Parliamentarians C Use by Courts D. Use in Modernization E. Use by Provinces Conclusion: Common Normative Foundations Introduction

Canada's constitution is legal and political. The legal component, which includes the Constitution Acts, 1867 and 1982, is more easily recognized and appreciated by lawyers, politicians, and the wider public. Indeed, the study of the constitution in Canada often begins, and too often ends, with the federal division of powers (found in the Constitution Act, 1867) (1) and the Canadian Charter of Rights and Freedoms (Charter) (2) (located in the Constitution Act, 1982) (2). (3) However, Canada's political constitution is equally important. The political constitution is comprised of the non-legal rules and norms that underpin Canadian democracy and governmental accountability. (4) They shape how power is exercised within the executive and in the houses of parliament. Yet, the political constitution is more difficult to grasp than its legal counterpart. This is partly because the legal constitution is largely written, while the political constitution is unwritten. The legal constitution is supreme law, visible for all to see, whereas the political constitution is the "hidden wiring", (6) known mostly to practitioners and scholars. Although the legal and political constitutions each form an essential part of the Canadian constitution, the written quality of the former tends to ensure its dominance over the latter.

The perceived pre-eminence of the legal over the political affects how political and judicial actors understand their roles and responsibilities under the constitution. Because they have a duty to interpret the legal constitution, courts are generally treated as the principal constitutional actors in Canada. Parliament and the executive are necessarily involved in crafting and enforcing the law, respectively, but the courts ultimately determine the meaning of the legal constitution. (7) By contrast, the political constitution has been shaped and continues to be defined by political actors. Yet, here too, courts have been called upon to take a leading role, outlining the contours of the political rules of the constitution but stopping short of enforcing them.

It has been argued that this tendency would be accelerated if the political constitution were to be codified. (8) Greater codification could erase the boundary between the legal and political constitutions, making courts the primary interpreter of both, and further minimize the influence and importance of political actors in constitutional matters. Writing the political constitution would also risk "ossifying" the political rules of the constitution, robbing them of the flexibility and adaptability that set them apart from law. (9)

This article challenges these arguments against codifying the political constitution. We argue that writing the political constitution would give political actors an opportunity to better define Canada's constitutional arrangements and empower them in the constitutional matters that affect them directly. In offering these arguments, we seek to move beyond the reasons scholars typically offer in favour of codifying the political aspects of the constitution, whether in a cabinet manual, ministerial code, or other document. (10) Calls to codify the political constitution have tended to intensify after events that raise questions about the application of a particular constitutional convention or conventions, or the propriety of the Prime Minister's or another minister's actions. (11) While this is understandable, viewing codification primarily as a solution to crisis and controversy falls short. Instead, we say that the process of committing the political constitution to writing would give political actors--parliamentarians, ministers, and senior parliamentary and government officials--an opportunity to reflect on the political rules and norms that govern Canada's pluralistic, multinational federation at this point in its constitutional development. (12) Our focus, then, is not on codification as a check on political actors, but as a vehicle to revitalize their roles and responsibilities as authors of the political constitution--an organic, evolving set of rules and norms that governs how our legislative and executive bodies operate.

At first blush, the need for further codification may appear unclear. After all, it could be argued that the political constitution can already be found in official documents published over the last several decades. But there is currently no comprehensive and publicly accessible guide that sets out the constitutional framework within which parliamentarians and the executive operate, nor is there, by extension, any of the ritual that might accompany the creation of such a document, such as political actors updating the guide periodically and agreeing to be bound by it. (13) In addition, while both the houses of Parliament and the executive have published official documents outlining their understanding of various aspects of the political constitution, they have not approached this task collaboratively. Doing so might reveal differences in interpretation or other forms of disagreement. Debates between the legislature and the executive about parliamentary privilege and cabinet secrecy, among other things, highlight the importance of dialogue between the two branches about how different parts of the constitution interact and how particular rules should be interpreted. Importantly, existing documents tend to take a narrow view of the political constitution. Treating the constitutional relationship between the state and Indigenous peoples as exclusively legal, for instance, discourages parliamentarians from properly considering it as part of the legislative process.

The argument we advance, therefore, is twofold. First, producing a guide to the political constitution would give political actors an opportunity to articulate and define the political constitution. (14) A cooperatively drafted and regularly updated guide would signal that political actors are committed to upholding an ever-evolving political constitution and to resolve disagreements without recourse to third parties. Of course, we acknowledge that the courts or the Crown may need to intervene in certain constitutional confrontations. However, following Andrew Blick and Peter Hennessey, we argue that the development and operation of the political constitution is best managed by political actors themselves, while also acknowledging that a "gentleman's agreement" with respect to unwritten rules is no longer sufficiently effective or transparent. (15)

Second, the process of writing the political constitution could be leveraged to modernize the political rules of the constitution in a broad sense. Although core constitutional conventions, such as confidence and cabinet solidarity, are well established and generally well understood by practitioners and scholars, contemporary Canadian political constitutionalism could better reflect the demands of federalism and intergovernmental relations, Parliament's responsibilities with respect to Indigenous peoples and the Charter, and the balance of power between the executive and the legislature in areas ranging from democratic accountability to foreign affairs.

We begin this article by reviewing New Zealand, Australia, and the United Kingdom's experiences drafting a cabinet manual, and consider the merits of this vehicle for partial codification of the political constitution. Next, in Part Two, we reflect on how a Canadian guide to the political constitution might be similar to and different than a cabinet manual. Part Three discusses the potential challenges associated with developing such a guide. In Part Four, we elaborate on the value of political actors taking responsibility for the political constitution, and on how the process of writing the political constitution could be harnessed to modernize some of its elements. We conclude by arguing that the legal and the political constitutions share a common normative foundation, and that a guide to the political constitution that is properly debated and accepted by political actors would contribute to upholding these norms in both the legal and political spheres. (16)

1. Comparative Codifications

   The political constitution has been codified to some degree in each of the four core Westminster states: New Zealand, the UK, Canada, and Australia. As Blick explains, codification can take various forms; the exact scope of these efforts depends on which rules and norms a jurisdiction chooses to codify (17) For instance, manuals of parliamentary procedure and practice could be included, since the operation of Westminster legislatures is intimately connected with political rules. (18) One could also include codes of conduct for ministers and political staff, since the political constitution is concerned with accountability for personal behaviour as well as policymaking. Depending on the subject matter, studies and reports produced by government departments and parliamentary researchers could be included too. (19) For example, official studies and parliamentary reports on the scope of the royal prerogative could be considered codifications of the political constitution, since determining how this power applies to novel circumstances is a matter of political judgment, subject to review by the courts. (20)

   A narrower view of codification focuses on cabinet manuals. When Canadian scholars have discussed codifying the political constitution, cabinet...