Due South

Are Canada’s constitutional values becoming more American?

There are people for whom the threat of Americanization apparently looms over the Canadian collective consciousness like a cultural guillotine. As a major preoccupation of Canadian studies of political culture, comparisons of Canadian culture to that of the United States seem at once natural and myopic. As two of the most similar countries in the world, it is not always clear whether the comparison allows for important insights into some aspect of what it means to be Canadian or instead obscures it entirely. A significant subset of commentary on Americanization is alarmist: the influence of the United States is viewed as an existential threat in the realm of public policy for protectionist lobby groups such as the Council of Canadians, or is routinely employed as a useful cudgel for politicians against opponents’ ideas.

In Red, White and Kind of Blue? The Conservatives and the Americanization of Canadian Constitutional Culture, David Schneiderman makes a useful contribution to this literature by examining Americanization in the context of Canada’s constitutional culture, which he defines rather broadly as “the compendium of fundamental values and norms that are represented in law, custom, and popular culture.” The U.S. influence on Canadian constitutionalism generally is enormous, and includes institutional innovations within a Westminster parliamentary democracy such as federalism and judicial review of a constitutionally entrenched bill of rights, to name just two. Constitutional culture, as Schneiderman examines it, has more to do with the dominant understandings of norms and values that inform constitutional law and politics, rather than structural innovations per se.

Framed this way, Red, White and Kind of Blue examines what Schneiderman alleges are efforts by former prime minister Stephen Harper and his Conservative government to Americanize Canadian constitutional values and to disrupt traditional practices and understandings of the constitution. The book includes a chapter for each of four significant instances of this purported American influence: the 2008 prorogation controversy, the debate over the Afghan detainee scandal (which led to the 2009 prorogation), the government’s failed efforts to reform the Senate and changes to the Supreme Court appointments process. Schneiderman is well placed to conduct this analysis. The University of Toronto law professor is a leading scholar of constitutional culture, and has published work on a variety of related topics, particularly the Charter of Rights and Freedoms.

There are two reasons this book is well worth reading. First, it constitutes an excellent contribution to understanding not just Canada’s constitutional culture, but also its constitutional history and recent reform efforts. This includes the discussion of constitutional culture in the first substantive chapter as well as in sections throughout the book. Schneiderman’s careful analysis of the development of key aspects of our constitution, coupled with similar analyses of its American counterpart, provide a rich and nuanced narrative that, even if divorced from the book’s main argument, make the book stand out among those that cover similar territory. Second, Schneiderman is a very clear and accessible writer. In contrast with many impenetrable academic tomes, Red, White and Kind of Blue is an engaging read. With its focus on contemporary political and legal issues, it should clearly serve the politically engaged, non-academic reader as well as it does scholars of constitutional law.

Despite these virtues, Schneider­man’s main argument regarding recent attempts to Americanize Canadian constitutional culture is not particularly convincing. Part of this stems from an under­specification of the American nature of the influences discussed. In the case of the 2008 prorogation controversy, which saw the prime minister make a request to the governor general to prorogue Parliament after a proposed Liberal-NDP coalition, supported by the Bloc Québécois, threatened to defeat his government, Schneiderman contends that Harper sought a shift in Canada’s constitutional order by misrepresenting the legitimacy of coalitions in our system and maintaining that no change of government could happen without an election. He cites a public opinion poll that found that 51 percent of Canadians incorrectly believe the prime minister is directly elected as proof of the pernicious effects of this argument.

While it was emphatically irresponsible and factually incorrect for the Conservative government and its supporters to imply coalitions are somehow legally illegitimate in our parliamentary system, we must distinguish this concern in the context of criticism about the political legitimacy of a particular coalition. What no doubt appalled many of Harper’s critics about the prorogation was that it succeeded as a political tactic: the governor general acceded to the request and the coalition fell apart under attacks from the Conservatives. But this arguably has as much to do with the political unpopularity of the proposed coalition taking power as it did arguments about constitutionality. If there had been sufficient political support for the coalition, the opposition parties were free to defeat the government in a confidence vote once Parliament resumed sitting.

There is no question that the notion that the prime minister is directly elected—and poor civic knowledge about the parliamentary system in general, for that matter—has been influenced by our proximity to, and the cultural dominance of, American politics, but Schneiderman’s analysis of the 2008 affair simplifies the story by downplaying the legitimate politics at stake in favour of the constitutional element. The author’s nuance regarding other aspects of this debate mitigates this problem, in part. For example, Schneiderman himself critiques the idea that the prime minister has undergone “presidentialization” as “improbable only because the prime minister is already so much more powerful than the president.” He notes, however, that Harper’s leadership style personalized his office in a manner more consistent with a presidency via an obsession with agenda setting and attempts to exploit convention and practice. Yet even this is difficult to separate from the similarly less-than-principled actions of Harper’s predecessors, including the 2003 prorogation under the Liberal government, which came conveniently timed to delay the tabling of a report on the brewing sponsorship scandal. More importantly, it is not clear why such unscrupulous behaviour from politicians seeking to retain power is particularly American, notwithstanding the public’s underwhelming comprehension of how their parliamentary system operates.

A similar problem of underspecification regarding American influence crops up in Schneiderman’s discussion of attempts to implement a senatorial election process. The Conservative government’s failed attempts to achieve unilateral reform of the Senate—specifically by bringing in an advisory electoral process and senatorial term limits—risked introducing the problematic deadlock between Parliament’s two chambers that regularly occurs in the U.S. Congress. Schneiderman makes a strong case that the government’s proposals ignored the relationship between the House and the Senate and failed to consider concomitant reform of the Senate’s basic powers and role. The Supreme Court ruled that this unilateral effort to reform the Senate was an impermissible attempt to alter the constitutional architecture without provincial consent, and Schneiderman provides an excellent critique of its decision.

While the reform’s failure to address other elements of the Senate was questionable, the author’s analysis then links this to Americanization mostly by simply asserting it. In Schneiderman’s view, “the Harper government persistently mimics highly problematic practices of U.S. constitutional governance.” It is unclear why an effort to democratize the Senate is necessarily an American idea. For Schneiderman, the debate over the Senate itself—and its origins in the old Reform Party proposals for a triple-E senate—clearly speak to the American experience. But as the author himself points out, an elected upper chamber and the risk of deadlock that comes with it are a feature of the Australian system as well. Indeed, Schneiderman points out that Australia is second only to the United States in the extent to which deadlock is a trait of its bicameralism. He seems to concede this point when he later writes that “irrespective of influence, it is apparent that an elected Senate would result in a significant change in Canadian constitutional culture.” This is undoubtedly true, but the reader does not receive an adequate explanation of why Americanization is the pertinent issue.

If the book’s core argument suffers somewhat from insufficient specification of why certain ideas are particularly American in nature, other aspects of the analysis risk undermining it entirely. The chapter on the Afghan detainee scandal is illustrative. When it became known that the Canadian Forces transferred detainees to the Afghan National Army in whose hands they would face abuse and torture, pressure mounted on the government to release documents that would allegedly reveal Canada knowingly violated article 12 of the Geneva Convention governing the treatment of prisoners of war.

The Conservative government responded to demands in Parliament for the release of the documents in part by citing the separation of powers and the executive’s responsibility to protect information relating to national security. Schneiderman argues that this constitutes a misrepresentation of the Canadian system, where the notion of a separation of powers is “largely a fiction” that “stubbornly persists” in Canadian constitutional parlance despite there being “only a veneer of separation between the legislative and executive branches.” The appeal to executive authority and a separation of powers was thus an attempt by the Conservatives to import American concepts to defend the indefensible.

Although there is little doubt that Parliament enjoys the ultimate authority to compel the documents in this case, in my view Schneiderman is wrong to dismiss the relevance of a separation of powers in the Canadian constitution. His analysis discusses but then dismisses political scientist Dennis Baker’s important work, which elaborates how the separation of powers functions in Canada’s parliamentary tradition. The author cites constitutional scholar Peter Hogg’s argument that there is no separation of powers and contends that it could be said this view was endorsed by the Supreme Court. A review of the jurisprudence, however, presents a much more robust affirmation of the separation of powers than Schneiderman’s discussion implies.

The Court has endorsed the idea that there is no strict separation of powers, but it has repeatedly and emphatically recognized the existence of a separation of powers as a defining feature of the functional constitution, including in cases Schneiderman himself cites. Whereas the Supreme Court states an explicit separation of powers is not provided for by the constitution’s text (although separate powers for the executive are indeed listed in the Constitution Act, 1867, as Schneiderman acknowledges), it does note, as it did in the 2003 case Doucet-Boudreau v. Nova Scotia, that “the functional separation among the executive, legislative and judicial branches of governance has frequently been noted.” And in the 2004 case Newfoundland (Treasury Board) v. N.A.P.E. the Court refers to the separation of powers as “a defining feature of our constitutional order.” Moreover, the separation of powers was explicitly acknowledged by all sides of the detainee documents debate, including the speaker (at the time, a Liberal member of Parliament).

In the final chapter, Schneiderman dramatically overstates the resemblance of minor Canadian innovations in the Supreme Court appointments process with the confirmation process for United States justices. Beginning in 2006, judicial appointees to the Court appeared before a committee of parliamentarians for a public interview. Schneiderman repeatedly—and incorrectly—refers to the appointees as “nominees” and to the interview process as “nomination hearings.” But, of course, they were no such thing. There was no confirmation vote by the committee or by Parliament. The objective of the public interviews was to bring in transparency, not to provide a check on the prime minister’s authority to appoint judges. The author’s framing of this issue essentially conflates minor reforms to the Canadian process with the American judicial confirmation process, and thus the concern about Americanization here is ­unconvincing.

Schneiderman’s broader criticisms of increased transparency in appointments to the Supreme Court—citing fears of politicization—are equally problematic, and connect to an ongoing debate that tends to occur between political scientists and some legal scholars about the distinction between law and politics, including the degree to which it exists. There is ample evidence, some of which the author himself cites, that who sits on the Court matters, and matters in part because of the inherently political nature of the Court’s work. The desire for transparency in the appointments process does not risk politicizing it because the process is already inherently political, if only by virtue of the Court’s work and the nature of judicial decision making. This is not to suggest that increased parliamentary involvement in appointments does not risk partisanship (a distinct concern), but given the way Schneiderman sets out his critique of the reforms readers might conclude that transparency is both undesirable and an especially American virtue, neither of which is true.

In the introductory chapter, Schneiderman repeatedly assures his readers that Red, White and Kind of Blue is not meant to be an anti-Harper polemic or an anti-American one. It becomes clear why the author felt the need to make such disclaimers after a few chapters. The book is not always successful at making it clear why certain events or reform efforts even constitute forms of Americanization, let alone why it should concern us if they did. Nevertheless, the book offers readers much more than its main thesis. By providing a provocative discussion of contemporary issues and analysis of constitutional reform, Red, White and Kind of Blue is a worthy read. As for its core argument, the book should succeed in spurring a useful debate about Canada’s constitutional culture as well.