Law Times

Law Times • December 8, 2008 Rae has been there before tion party deal in Ottawa. But it is hard not to see at T the centre of the spider's web being woven for a federal coali- tion government the same man who engineered the overthrow of the Ontario Progressive Conservative dynasty in 1985: then New Democrat Bob Rae. After all, unlike everyone else involved, Rae has been there be- fore. He knows both the upsides and downsides of deal making. In fact, Rae is now three out of three in dumping minority Conservative governments: two federal, Joe Clark in 1979 and Stephen Harper in the immediate future, and one provincial, Frank Miller in Ontario in 1985. In every case, it was to the benefi t of the Liberals. Although he wanted NDP cabinet seats in the 1985 pro- vincial Liberal government headed by David Peterson, Rae was stymied in his desire by sev- eral factors, including a sense in Liberal ranks that the NDP would support them regardless of whether a formal coalition was created or not. A secondary problem was that the Neanderthal wing of the NDP didn't want to be identifi ed too closely with the Liberals or even make an agreement with them. In the end, Rae signed with Peterson in what became known as the Accord. It promised to sustain a Liberal government for two years in exchange for a speci- fi ed list of legislation to be imple- mented over that time span. For the Liberals it was win- win. They got the power, brought in policies they mainly would have endorsed anyway, and per- formed well enough so that in the next election they reduced the NDP to a rump. For those of us who were at Queen's Park in those days, it soon became clear that never again would leading New Demo- crats agree to a coalition without actually having cabinet seats. They had done their share of the heavy lifting — yet got noth- ing out of it. And while Rae is now a Lib- eral, his sensibilities on the issue appear not to have changed. More importantly, he knows leading NDP feeling on the matter. True, many hardline New Democrats despise Rae from his days governing Ontario and his later move to the Liberal party. But the rest learned a lesson from 1985 and would deal with the devil him- self in exchange for power. And maybe they did. The infamous tape of Jack Layton speaking to the federal NDP caucus suggests the deal making, including with the sepa- ratist Bloc Québécois, has been going on for some time. What gives that even more cre- dence is that there were only four short days between the announce- ment by the federal Conservative government that it was moving to end taxpayer subsidies for po- litical parties and the signing by the federal Liberals and NDP of he stories have yet to be written about the genesis of the opposi- Inside Queen's Park By Derek Nelson what they also call an Accord. In passing, it might be noted that however worthy the ending of slurping by political parties at the tax trough — and it is an admira- ble goal — the federal Tory timing and context has to win some kind of record for political stupidity. But then, Joe Clark couldn't count either. The Accord signed by the 1985 provincial Liberals and NDP took almost a month to negotiate, from May 3 to May 28, which is another reason many believe earlier backroom discussions took place among the anti-Tory federal parties. The Accord of 1985 had tacked on to it a detailed and comprehensive four-page docu- ment signed by both Peterson and Rae that said the govern- ment was safe from defeat for two years in exchange for action on parliamentary reform and specifi c legislation. The 2009 Liberal-NDP fed- eral Accord, with its off-stage endorsement by the Bloc Québé- cois, deals with the longevity of the government and the division of spoils in matters like cabinet seats and Senate appointments. Their policy add-ons are much more vague beyond repu- diation of the Green Shift and a meaningless commitment to "fi scal stimulus." Rae's recommendation that Stéphane Dion stay as Liberal leader not only solidifi ed the deal but also neatly boxed in his leadership opponents. If the deal comes to fruition, the remarkable part will be how Rae almost single-handedly changed the political culture of Canada to put it more in tune with other par- liamentary democracies. Everywhere else, and in On- tario as late as 1923, coalitions rule. That's because coalition majorities make more sense than minority governments. They bring stability. Nor is there anything illegiti- mate about them. The people elect individuals to Parliament to represent them. Those represen- tatives then choose the executive council called cabinet. That's the essence of responsible govern- ment. That's what the opposition three announced they would do. If Rae is as important to the ongoing process in Ottawa as I think he is, and if it works, this coalition-building process may just catapult him into a new role come the Liberal leader- ship convention in May: prime minister. LT Editor's Note: This is Derek Nel- son's last column for Law Times. Nelson, who spent 19 years at Queen's Park, is retiring. Law Times thanks Derek for his great contribution to this newspaper. COMMENT PAGE 7 out of print. The Constitution is out of print W e are in the midst of what is possibly the greatest constitutional intrigue in a century and our Constitution is This is not some lead-in to a lame law pro- fessor's joke. The Canadian Constitution really is out of print. If you go to the Publications Canada web site and try to order the little green book that is offi cially titled The Constitution Acts 1867 to 1982, Consolidated, you will be unable to order it because it is out of print. It is equally challenging to attempt to secure the Canadian Constitution through the Chap- ters-Indigo or Amazon.ca web sites, let alone fi nd it on the shelves of an actual bookstore. Second I had decided to make the little green book re- quired reading for my fi rst year Public Law students, perhaps one of the few groups in Canada who might actually need a copy of the Constitution. But the government of Canada squelched my plans, and I was informed by the faculty bookstore in the summer that the Constitution was out of print and would not be republished for several months. So I have waited. In the Internet age, we might not be ter- ribly concerned about this because the De- partment of Justice has an excellent web site with the consolidated Constitution Acts 1867 to 1982 on it. However, as every good lawyer knows, there is a difference between searching for something online and reviewing the textual provisions of a statute or a contract in paper form. Often by looking through different provi- sions, one discovers connections that were not apparent before. One looks at things differ- ently and sees things differently when review- ing a text in hard copy as opposed to online. There are real practical consequences to the Constitution being out of print. But beyond these practical consequences, "out-of-print our Constitution" strongly refl ects the symbolism of the place of our Constitution in our society. The Charter, as an idea, is wildly popular all across Canada, as demonstrated by public opinion surveys conducted in 2007 on the oc- casion of its 25th anniversary. But the constitutional history surrounding the Charter, however, for the most part has been neglected. A number of years ago Jack Granat- stein asked, Who Killed Canadian History? We might ask the same about Canadian constitutional history. It has been ignored by those who interpret our Constitution — the judges — and as a result it has been rendered irrelevant to the lawyers who practice in the area, to law students who study the Charter, and to most scholars writing in the area. The government — this one and its Opinion By Adam Dodek predecessors — must shoulder part of the blame. The Harper government is to be cred- ited for championing Canadian constitutional history. However, it is more fond of celebrat- ing ancient rather than recent events. The Speech from the Throne opened with a trib- ute to the 250th anniversary of Canada's fi rst parliamentary assembly held in Nova Scotia on Oct. 2, 1758. It continued with an homage to Sir John A. Macdonald, Sir George-Étienne Cartier, and the other Fathers of Confederation. The Harper government made the 350th anni- versary of Quebec City a huge event, but last year the party of John Die- fenbaker's Bill of Rights did next to nothing to acknowledge the 25th anniversary of the patria- tion of the Constitution or the enactment of the Charter in 1982. Constitutional change has become the third rail of Canadian politics — to touch it is to risk political death. However, this fails to explain why we ne- glect our constitutional history. We tell no tales about the women and men who descend- ed upon our nation's capital to contribute to the constitution-making process by testify- ing before the special joint committee of the Senate and the House of Commons on the Constitution. We do not count them among the framers of our Constitution because the idea of fram- ers, of Constitution makers, has no constitu- tional currency in Canada. They simply don't count: not in the courts, not in our schools, and not in our hearts. Our popular constitutional mythology is that Pierre Trudeau was a one-man constitu- tional show, a modern day Solon the Lawgiver who gave us the Charter. These days our unwritten Constitution is front-page news with journalists seeking consti- tutional experts to explain what "prorogation," "dissolution," and votes of confi dence are. If anyone wants to consult with the actual text of our Constitution to see what it says about the summoning and the dissolution of Parliament they are out of luck. Few people are likely to actually have noticed that the Constitution is out of print. I seriously doubt that there has been much demand for it. However, I have recently been informed that Publications Canada has reprinted the Consti- tution and is restocking back orders. So with any luck, my students and whoever else is interested will soon be able to purchase a copy of the Constitution. It is $13.95 and makes a lovely holiday gift. LT Adam Dodek is a professor at the University of Ottawa's Faculty of Law. He can be reached at adodek@uOtttawa.ca. FIRM UP! 10% Purchase 5 or more subscriptions for your law firm to Law Times or Canadian Lawyer and save 15% Purchase 20 or more and save 1 year $135.00 + gst, go online at www.lawtimesnews.com 1 Year $65.00 + gst 2 Year $105.00 + gst go online at www.canadianlawyermag.com or call 1-888-743-3551 Special rates for students and international subscribers. www.lawtimesnews.com BONUS Digital Editons FREE with each Receive the paid subscription

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• Stays On Bench
• Second Opinion
• Focus On ADR/Mediation