With constitutional norms under assault by populist governments elsewhere in the world, Canadians should not be complacent. We do have the advantage of heightened public awareness of our constitution based on its relatively recent negotiation, patriation and codification. But as Thomas Axworthy, who was part of that process, writes, the upholding of our constitutional conventions requires vigilance.

Thomas S. Axworthy

Constitutions are like icebergs: the visible parts, enshrined in law for all to see, sit upon a mass of norms, traditions, and conventions that make up most of the governmental rules of the road but are largely unknown to the wider public and receive scant attention, even from the legal and academic communities. Historically, in the British North America Act (BNA Act) of 1867, which established the federation of Canada, it was the written provisions about the division of federal and provincial powers in Sections 91 and 92 that initially charged debates about the constitution, and, since the Constitution Act of 1982, it has been the Charter of Rights and Freedoms that has overwhelmingly engaged scholars and jurists.

But the preamble to the BNA Act, in its first paragraph, begins with the critical phrase that the new Dominion will be “federally united…with a Constitution similar in Principle to that of the United Kingdom”, which means that a host of unwritten British parliamentary conventions and rules such as the monarch appointing a cabinet on the advice of an elected prime minister, rather than on his or her personal preference, became Canada’s unwritten constitution, too. Britain’s governance was transformed from a monarchical led executive in the 17th century to a parliamentary democracy by the 19th. This was achieved by keeping the formal institutions of King, Commons and Lords, but radically altering their functions and powers through conventions, defined by the famous legal scholar A.V.Dicey as “understandings, habits or practices” which, though they may regulate conduct of the executive or sovereign power are not, in reality, laws. To become a convention a practice must continue over time and have general adherence. Caitlin Salvino, for example, has argued that using the notwithstanding clause, however unpalatable, is not breaking a Canadian convention because section 33 has been used and renewed several times by the provinces since 1982. When practices do jell into conventions, British author Peter Hennessy has described them as “the hidden wiring” of constitutions.

Understanding the hidden wiring takes an expert electrician. William Gladstone, participant in the 1867 British House of Commons debate over the BNA Act and, subsequently, prime minister of Great Britain, reflected that the British constitution with its unwritten conventions “requires more boldly than any other the good sense and good faith of those who work it.”

In January 2023, Massey College, at the University of Toronto, convened a conference to assess “the good sense and good faith” of those who work  on the unwritten Canadian constitution. Professor Vanessa MacDonnell of the University of Ottawa, who spoke at the conference, and her colleague, Phillipe Lagassé distinguish between the legal and political constitution and make the case that the norms and rules that underpin our parliamentary democracy are as important as the legal constitutional acts of 1867 and 1982.The Supreme Court of Canada in the 1998 Reference re: Secession of Quebec ruling recognized that unwritten principles are “implicit in the very nature of the Constitution” and, as I can personally attest, the court sometimes makes momentous decisions based on their understanding of political conventions.

In 1981, after decades of fruitless federal-provincial conferences on how to patriate the constitution from the legal supremacy of the United Kingdom, the government of Pierre Trudeau supported by the provinces of Ontario and New Brunswick, proposed to send a constitutional package which included an amending formula and a Charter of Rights and Freedoms to Great Britain one last time, to finally bring the constitution home.

But the Supreme Court ruled that while the initiative was legal as there was no formal requirement of provincial consent, in terms of constitutional traditions, there was a convention of a “substantial degree” of provincial consent. The court did not exactly define what “substantial” meant but Trudeau respected the majority opinion on convention, so the provinces were invited to Ottawa in the first week of November 1981 to try again to negotiate an agreement. The Court, in the words of political scientist Peter Russell, had given the Trudeau government a legal green light to proceed but a political red light to stop and try again. I met with Prime Minister Trudeau at Harrington Lake soon after the Supreme Court ruling: he understood that he would have to meet the Court’s convention criteria and would do so either by further negotiation or a national referendum on the constitutional package. The political constitution of tradition and convention, in this case at least, changed our history.

The 1981 Supreme Court decision was certainly dramatic, yet as MacDonnell argues, “it is in the day-to-day application of these principles by the executive and legislature that unwritten constitutional principles perform their most important role.” Politicians are the most important guardians of the political constitution just as judges are of the legal constitution. Accountability demands that the legislature must hold the executive to account so, therefore, it is critical that ministers do not willingly mislead the House.

Political neutrality of the public service is central to public administration, so ministers must deftly balance the political objectives of the government with the need of public servants to tell truth to power. Judicial independence is necessary for the rule of law so the appointment of judges must be done in a fair and impartial way after adequate consultation. Executive actions are usually out of sight behind closed doors, but institutions require that participants abide by implicit norms to sustain their actions because not everything can be written down. Repeated breaches of such political norms weaken the fundamentals of the unwritten constitution and can lead to collapse of the whole democratic edifice. This has occurred in Hungary under Viktor Orban and nearly occurred in the United States under Donald Trump.

In our current populist age, are the norms of our unwritten constitution under special stress or threat? The panelists at the Massey Forum certainly thought so. Peter Biro, in his keynote address on “Degrading Norms” concentrated on the fundamental virtue of truth and how this was necessary to create and maintain trust in a democracy. Erin Kelly, a public opinion expert, told the conference, however, that public trust in Canada is eroding.

Exaggeration, bombast and spin have always been part of politics, but in Boris Johnson and Donald Trump we witnessed two leaders who emitted cascades of lies. As a young journalist, Johnson was fired for inventing quotes but he brazenly continued this pattern throughout his career, most notably in the Brexit debate, when he campaigned in a bus emblazed with the banner, “We send the EU 350 million pounds a week, let’s fund the NHS instead.” The Washington Post created a fact checker to investigate Trump’s claims and, by the end of his presidency, Trump had piled up 30,572 falsehoods or 21 fibs a day. This is so absurd that it would be amusing except that Trump and his followers so weaponized the Big Lie that he had not lost the 2020 election that they attempted a violent attack on the Capitol on January 6, 2021, to prevent the electoral votes from being counted and certified.

Marcus Kolga, a well-known expert on Eastern Europe, documented the lies of Vladimir Putin and Viktor Orban, too, but he went on to outline how their Big Lies set the stage for more serious abuses: public opinion is inflamed to blame the “other”, immigrants or refugees in Orban’s case, Ukrainians or the West in Putin’s. Winning elections on a Big Lie, power is concentrated in the centre, judicial independence is limited, cronies are appointed to government posts, prosecutors’ offices and the state media function as arms of the ruling party, the electoral playing field is titled towards the administration and, finally, the Constitution is amended to legitimize the destruction of previous norms. Orban proudly proclaimed, in 2014, that, “The new state that we are building is an illiberal state, a non-liberal state.” Putin beat the same drum in 2019, proclaiming, “Migrants can kill, plunder and rape with impunity because their rights as migrants have to be protected. Every crime must have its punishment. The liberal idea has become obsolete.”

Patrice Dutil, a noted public administration scholar, outlined how difficult it is for public servants to navigate their way between the demands of political staffers and the norm of good administration.

Nothing has happened in Canada that remotely resembles the crimes of Putin, Orban or Trump. But there are warning signs that our unwritten Constitution is fraying at the edges. Adam Goldenberg concentrated on the key issue of how our judges are appointed: from its creation in 1875 until 2004, appointments to the Supreme Court were made by the prime minister after informal consultations with the Chief Justice and other notables but there was no transparency. Paul Martin took up the challenge of creating a more open system and established an elaborate formal advisory system of consultations with the Chief Justice of the Supreme Court, leaders from the bar, provincial attorneys general who would create a short list of candidates to send to the minister of justice and the prime minister for the final decision. Members of Parliament, either through ad-hoc committees or the Standing Committee of Justice, play a role too. Stephen Harper continued this system and Justin Trudeau opened it up even further in 2016 by allowing any qualified candidate to apply (in 2022 the Advisory Board, for example, received twelve applications to fill a vacancy from Ontario).

But even this elaborate system has had its controversies: when Chief Justice Beverley McLachlin, in 2014, gave advice about the qualifications of a proposed  list of Supreme Court justices, a longstanding convention in Canada, Stephen Harper publicly complained. His nominee, however, was eventually found not to have the qualifications necessary to be a representative justice from Quebec (which is exactly what McLachlin warned about). And the current system of an Advisory Board with specified consultations is an executive decision only, not enshrined in legislation. A future prime minister could radically change it or do away with the system all together. To guard against this possibility the House of Commons Standing Committee on Justice recommended in 2017 that the system be made permanent.

Patrice Dutil, a noted public administration scholar, outlined how difficult it is for public servants to navigate their way between the demands of political staffers and the norm of good administration. Sometimes, even the most senior officials get caught in this snare. The SNC-Lavalin scandal of 2018-19 turned on the interpretation of the “Shawcross principle” which then-UK Attorney General Sir Hartley Shawcross outlined to the British House of Commons in 1951: that an AG could seek out the policy implications of a prosecutor decision from cabinet colleagues but any decision was the AG’s alone. Attorney General Jody Wilson-Raybould and Justin Trudeau’s PMO disagreed about what constituted undue pressure to assist SNC-Lavalin, with the end result that two ministers resigned, as did a senior official from the PMO and the Clerk of the Privy Council, the Prime Minister was criticized by the Ethics Commissioner and SNC-Lavalin eventually pleaded guilty and was fined $200 million. Who says political conventions are of minor account?

Conventions and traditions, in the words of the Supreme Court, “dictate major elements of the architecture of the Constitution itself and are, as such, its lifeblood.” Our political constitution remains vibrant, but we will have to be vigilant to keep it that way.

Contributing Writer Thomas S. Axworthy is Public Policy Chair at Massey College, University of Toronto. He was Principal Secretary to Prime Minister Pierre Trudeau at the time of the negotiation and adoption of the Canadian Charter of Rights and Freedoms and the Constitution Act in 1981-82.