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Supporting the Evolution of Canada's Democracy

Department of Justice Canada team helps strengthen the institutions and mechanisms of our democracy

by Peter McKinnon

OTTAWA – Last fall was a heady time for constitutional experts like Laurie Wright and her colleagues.

Canada's democratic institutions and conventions came under intense scrutiny when the newly re-elected Conservative minority government faced possible defeat in the House of Commons.

The opposition parties formed a coalition and vowed to vote down the government, touching off a whirlwind of events. The Governor General was forced to make a difficult choice about the current session of Parliament, while politicians and pundits discussed parliamentary traditions and debated a host of complex legal and constitutional issues.

Suddenly, Canada's normally staid and stable democracy took on an air of unpredictability.

For Wright, it was both an exciting and intense time.

"It was great to see so many Canadians engaged in the debate," says Wright, who coordinates the Department of Justice Canada's Constitutional Affairs and Democratic Reform team.

"Public discourse helps propel the evolution of a healthy democracy."

The team is comprised of legal experts from two sections within the Department: Constitutional and Administrative Law (CALS) and Human Rights Law (HRLS). All members of the team are both passionate and knowledgeable about the evolution of Canada's democracy.

The team's mandate is to support the democratic reform work of the federal government and to provide legal advice on a host of related issues.

"Canada has come a long way in 142 years," says Wright.

"While we still rely on many of the same democratic institutions and mechanisms, they've changed a great deal in response to larger changes in society. Women couldn't vote in federal elections, for instance, until a majority of parliamentarians backed the appropriate legislation about 90 years ago."

Laurie Wright, Ray MacCallum and Warren J. Newman
Photo: Patrick Walton

As legal counsel to the Government of Canada, the members of the team help transform political goals into effective policy and legislation.

According to Wright, the job demands a special blend of intelligence, creativity and perseverance.

"We're often faced with a novel question – something that's never been tried before," she says.

"So we study not only Canada's conventions and traditions, but also those of other Commonwealth countries, and often devise innovative practices. Sometimes, though, we're given only a few days to consider an issue complex enough for a PhD dissertation. In those cases, I appreciate the support we get from senior officials in the Department, including the Deputy Minister."

All members of the team possess a deep understanding of historical precedents and current trends.

Warren Newman, for instance, is Senior General Counsel in CALS and has more than 25 years' experience in the field.

He has worked on constitutional matters ranging from the Manitoba Language Rights Reference and the Official Languages Act through the Quebec Secession Reference and the Clarity Act, as well as the government's recent initiatives on Senate reform, and has published widely on constitutional issues.

"The Constitution of Canada is a complex and fascinating framework of supreme law, fundamental principle and unwritten convention," Newman says.

"It is essential to understand the intricate relationship that exists between the provisions of the Constitution Acts on the one hand, and underlying principles such as federalism, democracy and the rule of law on the other. These principles guide both the interpretation of the constitutional text and the application of the political conventions of responsible government.

"Any legal advice on the reform of our constitutional system needs to be sensitive to this framework of law, principle and convention."

This level of expertise is an essential feature of the Constitutional Affairs and Democratic Reform team, part of the Public Law Sector. Other members include Louis Davis, Arlo Litman, Alissa Malkin, Luanne Walton and Julie Wellington from CALS and Ray MacCallum from HRLS. They work on these reform issues as needed.

"The stakes are usually high whenever Parliament seeks to change the rules of our political and electoral system," says MacCallum.

"It's rewarding work to advise the government of the day on how to make or respond to such changes – and often later defend them in court – within the boundaries set by our Constitution."

Wright says there are two primary paths to democratic reform: updating traditional practices and conventions, and enacting legislative or constitutional change. Over the years, both have contributed to the evolution of Canada's system of governance.

For example, no law requires Governors General to heed the advice of elected officials. In fact, prior to Confederation this was rarely done; in the modern era, it has become standard rule of convention.

Parliamentary traditions have also evolved. The Senate was originally reserved for wealthy landowners, for example, much like the United Kingdom's House of Lords. True to its name, the House of Commons was for commoners.

Formal legal change also drives democracy's steady progress, says Wright.

The Constitution Act, 1982, for instance, enshrined the Charter of Rights and Freedoms, and established new procedures for amending the constitution. The 1990s brought further amendments.

A democracy must evolve continually to meet the changing needs and aspirations of its citizens.

To support these reform efforts, the Department assembled constitutional-support teams to provide legal advice and develop legislative options. The considerable value of these teams, particularly during the Meech Lake and Charlottetown rounds of constitutional reform, led the Department to adopt a similar approach when the Prime Minister launched the current democratic reform initiative.

“A democracy must evolve continually to meet the changing needs and aspirations of its citizens,” Wright says. “If it remains static too long, citizens lose faith in it. We help transform political goals into effective policy and legislation.”

The current reform initiative features a number of legislative projects – The Federal Accountability Act, one of the first pieces of legislation introduced following the 2006 election, eliminated corporate and union donations to political parties and candidates. A bill introduced in the last session of Parliament proposed to improve accountability for loans extended to political parties, it died before being passed.

Senate reform is another key element. The Constitutional Affairs and Democratic Reform team provided advice on bills that would introduce term limits for Senators and establish a process to consult with electors on Senate appointments. These bills also died when Parliament was dissolved last year.

While we still rely on many of the same democratic institutions and mechanisms, they've changed a great deal in response to larger changes in society.

Another goal of the current initiative is to make Canada’s electoral system more responsive, fair and effective. To this end, Parliament approved amendments to the Canada Elections Act that require voters to show appropriate identification prior to casting their ballots in federal elections.

Two other legislative components failed to earn parliamentary approval before the last session ended. The first proposed to improve voter turnout by increasing the number of advance polls; the second aimed to make Canada’s electoral system more equitable by altering the formula used to calculate the number of federal ridings in each province. The bill would have added ridings to provinces with fast-growing populations.

For the Constitutional Affairs and Democratic Reform team, last fall’s constitutional maneuvering was an exhilarating demonstration that democracy is alive and well in Canada.

Says MacCallum: “For lawyers interested in the way we do democracy in Canada, there is no better medium in which to practise than constitutional law. And there is no more interesting and challenging a client in this respect than the Government of Canada.”

“The events of last fall really confirmed this.”

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