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Freedom, Duties of Care, Principles, Constitutions, and Justice
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Constitutional Issues - Part Four
The Judicial Problem
The final area of responsibility for a reconstituted Senate would be as guardians of the Constitution. This suggestion has a number of facets which have tremendous ramifications for how to conceive of, as well as conduct, the process of arranging the social contract that both preserves and enforces our sovereignty as individuals and as a collectivity of peoples in a multi-cultural society.
To begin with, the Constitution must be removed entirely from the judicial system. There are a number of basic reasons for doing this.
For instance, at the level of the Supreme Court, there is much in the judgements of the courts that is, strictly speaking, extra-legal in character. The systems of interpretation, the philosophical assumptions, the theories of law, and the styles of logical mapping which judges employ in reaching legal decisions are part of the practices and conventions which surround statutes, legal rules and the Constitution. Nonetheless, they are not themselves either statutory in character (a legal rule which has been clearly articulated as such and which is legally incumbent upon justices to follow), or constitutional in character.
Justices are, of course, empowered to make judgements on legal issues and are permitted judicial discretion in reaching such decisions. However, the boundaries of this discretionary power are so extremely vague, arbitrary and problematic that, in fact, if the justices had to rule on a statute, for example, that exhibited the same qualities of vagueness, arbitrariness and contentiousness as does judicial discretion, the justices very likely would be unanimous in their opinion that such a statute is unconstitutional.
Although judicial discretion is integral to the process of generating legal decisions, this discretionary exercise is functionally dependent, as indicated above, on a whole set of considerations that are extra-legal in character. Consequently, the time has arrived for us to come to grips with the mythology that permeates Supreme Court decisions.
The mythology tends to claim that there is some self-contained body of law which can be discerned objectively through judicial methods which are entirely legal in character in the sense that those methods are universally agreed upon by all justices and, therefore, are incumbent upon one and all justices to follow. None of this is necessarily true. What justices say is the law is what the law is, but the impression is often given that there is some body of law independent of the judges, and that judges are merely stating what the law is.
Justices of the Supreme Court are answerable to no one except themselves. They give their interpretations of the law. These interpretations have implications for the quality of sovereignty of individuals, as well as many ramifications for the sovereignty of various levels of government and institutions.
Now, the question that must be asked is this: Why should anyone believe that such interpretations will best serve the interests of protecting and ensuring the quality of sovereignty which is at the heart of the social contract that binds individuals together? This question becomes especially critical when one realizes that judicial interpretations hold us hostage to the past in a variety of ways.
More specifically, justices purport to be able to determine what the structural character of legality is in a given issue or set of issues that are before the court. They meticulously map out the web of logic that supposedly links an issue in contention with, say, the "meaning" of the Constitution.
But whose "meaning" is this? Is the meaning that of the people who wrote the Constitution? Or, is the meaning that of those who voted the Constitution into existence? Can we be sure that everybody who voted for the Constitution understood the document in the same way that the authors intended it to be understood? Or, is the meaning of the Constitution that of those government officials who subsequently interpreted the Constitution and, thereby, generated a wealth of documented conventions, practices and methods for doing politics?
Even more importantly, what relevance does the intentions of either: (a) the framers of the Constitution; or, (b) those who voted for the Constitution, or, (c) those who subsequently interpreted it, have for us today if those intentions don't: address our problems, meet our needs, or provide a direction that makes sense in the context of our current circumstances? Why should we be held hostage to what other people in another time believed or felt unless what they believed or felt resolves difficulties to the satisfaction of a majority of the people in the present?
Judicial decisions are, by necessity, narrowly focused in the sense that they are inextricably tied to the past. The precedents justices seek, the logic they attempt to uncover,the meanings they try to unravel have to be justified in terms of legal documents as intended, understood and meant by the people who generated those documents.
However, we can ask whether these historical actors were omniscient. Did they ever make mistakes? Did they subscribe to positions of political/economic philosophy that are unassailable with respect to the wisdom, insight and comprehensiveness to which such positions gave expression?
Were they really clear in their own minds and hearts about what they meant or intended by these documents? Was there a unanimity of opinion, or even a general consensus amongst those actors as to what was meant, understood or intended? Can we be sure that justices have captured what those meanings, understand-ings and intentions were?
Even if, through a miraculous stroke of serendipity, we could get definitive, unambiguous answers to all of the foregoing questions, none of this really addresses the issue at hand: Is the law as determined by justices at all relevant to what is going on today? What requires that we adhere to what people thought, believed or were committed to in the past? Are we under a moral obligation to do so? Is it a legal obligation and, if so, what exactly does this mean? What force is it that requires people today to be bound to the past in the same way and sense in which the justices of the Supreme Court are tied to the past?
To say that we must follow the law because it is the law is both circular and evasive. Besides, law, per se, is not what binds us together. Law itself emerges from, presupposes and derives its authority from the underlying social contracts to which people have committed themselves. Law is absolutely empty without the existence of the underlying covenant that encompasses people's willingness to both place certain constraints on their own sovereignty as well as to extend certain degrees of freedom within which the sovereignty of other individuals may be developed and realized.
That law which is not rooted in the willing compliance of people to adhere to it and observe its requirements will fail. Similarly, that society which is not rooted in the willing compliance of people to establish a social contract that supports the sort of sacrifices, constraints and freedoms which laws require also will fail.
The courts are, in many respects, inherently incapable of addressing the issue of the social contract. The courts are incapable of addressing this issue because they are looking to the past for their answers, whereas the people of today are becoming increasingly disinclined to continue to accept the terms of the sort of antiquated social contract that underwrites the legal issues which defines the parameters of the jurists' world.
The jurists are stuck in another world and time. As a result, they cannot address the political, cultural, sociological, philosophical, economic, religious and psychological issues of today from anything but a narrowly conceived legal focus that is rooted in the past.
In effect, what the justices are saying is this: If you wish to continue to operate according to the conditions of the social contract of a given time and place, then, you must do, X, Y or Z. However, the structural character of the social contract should not necessarily be tied to how things were done in the past. The desirability of doing so depends entirely on the character of how and why things were done in the past and whether or not those ways of doing things have a capacity to arrange and regulate people's lives today in a manner that guards and enhances the quality of the individual and collective sovereignty of people today.
The social contract is a living, breathing, on-going, dynamic entity. It should be capable of being revised, altered, and modified under a variety of circumstances that are not a function of legal considerations.
Moreover, this transformational process should be done according to the discretion and judgement of the people who have to live with, and are responsible for honoring the condition of, that contract in the present. Because the courts are lost in the past, they are not the proper venue for issues involving that contract. At best, they could serve as consultants who would provide expert opinion about what the social contract meant to people at a particular time and place.
Consequently, the mandate of the courts should not be extended to empower them to dictate to people of the present time that the latter must subscribe to the requirements of the social contract as understood by the people of the past. Moreover, the mandate of the courts should not be extended to permit them to generate interpretations of how the social contract was understood and intended by people of the past and, then, proceed to impose those interpretations onto the people of today.
The mandate of the courts should be restricted to ensuring that proper procedures are observed with respect to evidence, testimony, examination and general conduct of all participants, both before and during the trial process, as well as during the sentencing and award phases of legal proceedings. Anything within the context of legal proceedings that raises constitutional issues should be referred to either the Senate subcommittee or its appointed body (more on this in a moment) for dealing with such issues.
The Constitution and Social Contract
The immediate response of some, perhaps many, people to the foregoing position is that constitutional issues will become inconsistent at best and chaotic at worst. Such people may argue that the woof and warp of the Constitution are made of legal materials, methods and processes, or that the design of the Constitution necessarily is a legal one. Such people may argue that only the judiciary is capable of consistently and methodically identifying the nature of the problems inherent in the Constitution, or that only the judiciary is competent to deal with such issues.
Without in any way wishing to impugn the integrity of the members of the judiciary, in point of fact, the judiciary is really not competent to deal with constitutional issues. The judiciary is narrowly focused. They engage, analyze, evaluate and understand constitutional issues only from a legal perspective.
Yet, the Constitution is far more than a document with legal implications. It is a document that is permeated by, and rooted in, a wide variety of political, social, philosophical, emotional, religious, economic psychological and historical influences.
Justices are experts in the law. They cannot claim to be, nor can they be expected to be, experts in all these other spheres of influence that shape, color and orient constitutional issues.
Furthermore, one would be making a potentially disastrous mistake to suppose that, with respect to all of these influences and forces that are entangled in constitutional issues, the only dimension which matters is that which gives expression to the legal perspective. For a long time, this legalistic assumption or bias has veiled and skewed thinking about constitutional matters. In effect, this assumption requires one to suppose that the legal approach or perspective is the only way of trying to resolve constitutional issues.
Moreover, this assumption tends to force one to conflate the idea of a constitution with the idea of law. As such, the assumption is inappropriately reductionistic since it makes the Constitution a function of law when, in reality, law is a function of the Constitution.
The Constitution is the fundamental written expression of the social contract which establishes how people are to arrange their affairs in order to be able to protect, maintain, preserve, develop and realize their sovereignty as individuals, as peoples, as communities and as collectives of people and communities. Law comes into existence as an attempt to reflect certain dimensions of the structural character of this underlying agreement. Without the underlying agreement, law becomes empty, meaningless and a mere exercise in imposed, non-reciprocal, non-participatory power arrangements which have absolutely nothing to do with democracy of any species.
Because the Constitution is an ongoing, dynamic, social, cultural, political, psychological dialectic of individuals, peoples and communities, law cannot possibly keep pace with the changing currents of constitutional issues. The law, relative to the Constitution, is static and backward looking, whereas the Constitution, relative to the law, is dynamic and oriented primarily to the present and the future.
The Constitution is linked to the past only in as far as the past contains the sort of values, practices and insights that may help us to resolve our problems today. Nonetheless, the people of the past have no right to place obligations upon the people of the present with respect to which, if any, values, practices or insights are chosen to assist the people of today in their search for sovereignty.
In effect, the courts are arguing that not only do the people of the past have such a right, but the people of today, as well as the people of tomorrow, are obligated to identify with, honor and actualize such a right. This argument does a great disservice to both the constitutional process as well as to democracy; for, not only does such an argument deny the people of today and tomorrow representation, it also denies them participation except on the terms and conditions stipulated by the people of the past.
As far as the issue of consistency is concerned (in which the claim is made that law is the thread of consistency which alone permits a coherent constitutional fabric to be sewn), there are certain realities which one ought to keep in mind. Justices, lawyers and law professors do not understand constitutional issues with anything remotely approaching consensus. There are areas of agreement, but the history of judicial interpretation is fraught with disagreement, reversals and fractiousness.
The idea of legal consistency in constitutional matters is more akin to acts of prestidigitation than it is to an expression of some incontrovertible truth. As is the case with the weather in Canada, so too in legal treatments of constitutional issues, all one has to do is wait long enough and such treatments will change.
What links the people of today with the people of the past is not law or consistency of law. The link of consistency is that we both have been confronted with the problem of the social contract as that affects issues of sovereignty.
What links us with the people of the past are not judicial pronouncements, but the common desire to have the power and opportunity to help shape our constitutional destinies. The people of the past made their own choices about how they would go about undertaking this shaping process.
The people of today also must make their own choices, irrespective of whether these choices reflect, to some extent, the values of the people of the past or divert, to some extent, from those values. Whatever the character of their choices may be, the people of today are better placed than the people of the past, with more up-to-date, intimate knowledge and understanding of what constitutional choices will be most reflective of, consistent with, and consonant in relation to, the needs, problems, pressures and issues that exist in the modern world.
The Constitution Act of 1982 was a disaster because the people involved in constructing that Act were caught in the past and holding the rest of the country hostage to the past. As a result, the main actors in the formation of the Act attempted to resolve modern problems and issues with antiquated methods, ideologies and processes.
The Constitution Act of 1982 was, and is, a failure because the people responsible for that Act were using representational democratic procedures in a Machiavellian manner when what was called for was a participatory style of democracy that was rooted in reciprocity, duties of care and a sharing of the responsibilities for shaping our Constitutional destiny. The Constitution Act of 1982 was a failure because the people who bequeathed the Act upon posterity failed to address the fact that sovereignty is not just a matter of intergovernmental relations and the distribution of power between federal and provincial governments. Sovereignty is, first and foremost, a matter of people.
Governments exist due to the largesse of the people. Governments exist in order to assist individuals, peoples and communities to manage their social contract, one with another, in terms of how the interactions of people affect their respective sphere of sovereignty.
Unfortunately, the principle actors of the Constitution Act of 1982 somehow became confused and thought that sovereignty was the preserve of governments only. Indeed, even the one area of the Constitution Act of 1982 that purportedly dealt with the issues surrounding sovereignty of people as people-namely, the Charter of Rights-was undermined by the insistence of the political players that sovereignty was, by virtue of the ‘notwithstanding clause’, really a matter of governments, not people.
The reason for reconstituting the Senate along the lines suggested earlier is to re-establish the issue of sovereignty as primarily about individuals and peoples and only secondarily and derivatively about governments. The reason for reconstituting the Senate in the fashion previously indicated is to emphasize the fundamental necessity of providing opportunities and processes of participatory democracy to complement processes of representational democracy.
Constitutional Forums
In keeping with the spirit of the proposed Senate reform and its emphasis upon the participatory aspects of democracy, the Senate subcommittee on constitutional issues would establish a number of constitutional forums across the country. This would include, perhaps, one forum for each of the provinces and territories, for a total of 12. However, in heavily populated areas, more than one forum might be necessary.
The forums would be made up of, say, thirteen people. Half of the people appointed to the forums would be women (Since 13 is an odd number, this provision would refer to the country as a whole, with each province coming as near to this distribution as possible over a given period of time).
These people would be selected from a variety of areas of expertise-both professional as well as qualified "amateurs". These areas of expertise could involve business, labor, law, religion, science, psychology, mathematics, sociology, education, political sciences, philosophy, literature/arts and the media.
Those selected would serve tenures of three years in which, as with jury duty, their places of employment would have to hold open their jobs. In this sense, the places of employment as well as the individuals selected would be providing a community service.
The function of these forums is to hear cases involving disputes concerning the social contract as that contract is given expression in the Constitution of Canada after the Constitution has been rewritten to suitably reflect the themes of: sovereignty, rights, duties of care, participatory democracy, the principle of diversity of equality, a reconstituted Senate, a modified House of Commons structure (more on this shortly), the acknowledgment of the sovereignty of Native peoples, the principle of multi-culturalism, and the transformed character of the election process. Almost all of these themes have been touched upon previously in this document.
The task of the forums would be to resolve disputes, complaints, problems and questions that arise in the course of day-to-day living In a sense, these forums offer a process of binding arbitration concerning constitutional issues Yet, they do so in an extra-legal context since the process, methods of investigation, styles of evaluation, theories of interpretation and so on that are employed will be rooted almost entirely in non-legal perspectives.
Evidence will be sought. Witnesses will be examined. Statements and depositions will be introduced. Arguments and cases will be made and questioned. But, all of this will be done from a variety of different perspectives which reflect the non-legal areas of expertise of the members of the forum.
The members of the constitutional forum have the responsibility of helping to work out the details and particulars of constitutional principles in the context of the present. Nevertheless, these decisions must be arrived at with an eye to the future as well. While later generations are under no obligation to accept the judgements of such forums, nonetheless, the members will be providing a great heuristic service to the community and nation if they can generate decisions that possess a lasting wisdom.
The Senate subcommittee for constitutional issues will have the task of managing and reviewing the conduct, performance and decisions of these forums, but the subcommittee will not be responsible for selecting the members of these forums. That aspect will be handled by the Senate subcommittee on government appointments. In addition, although the Senate subcommittee on constitutional issues is responsible for reviewing the conduct and decisions of the various forums, nevertheless, it has the discretion to bring under further scrutiny only those decisions that seem to leave certain problems unresolved or questions unanswered or which raise problems of consistency across forum decisions.
In the case of the issue of consistency, however, the measure of consistency will not be that of a self-sameness of rules in which one attempts to force a monolithic rule onto all situations irrespective of differences in those situations. Instead, the criterion of consistency will be a matter of the self-similarity of a principle as it is given expression in different circumstances.
As will be discussed in more detail in the section The Quality of Tolerance and the Need for Guidelines, a certain flexibility must be permitted in the way various constitutional forums arbitrate similar constitutional cases. At the same time, one of the tasks of the Senate subcommittee on constitutional issues will be to protect against the occurrence of too much flexibility.
This will be accomplished by placing certain constraints on the degrees of freedom which are to be permitted to various constitutional forums that are arbitrating cases involving similar constitutional issues. Thus, while the judgements of these forums do not have to be self-same, one with another, they do have to exhibit a certain self-similarity within a set of boundaries or parameters that are to be determined by the Senate whenever the need to do so arises.
In disputes between specific provinces and the federal government, or in disagreements among provinces, or among municipalities and the provincial/Federal governments, or among different regions of the country, these sorts of problems would be handled initially by one or more of the constitutional forums. If, for example, an action were begun within a particular province against, say, the Federal government, one of the provincial constitutional forums would listen to arguments on the matter. A decision would be rendered by that forum, together with the reasoning on which that decision is based.
If any of the parties to the dispute were dissatisfied with the decision process and concomitant reasoning, such parties could launch an appeal to the Senate subcommittee on constitutional issues. The subcommittee would have several choices: (a) let the decision of the constitutional forum stand; (b) review that decision to determine if there were any procedural or evidential irregularities or omissions that could have altered the character of the decision; if substantial irregularities or omissions emerge during the review process, the matter is to be returned to the level of the constitutional forum, together with the subcommittee's recommendations for further deliberations; or, (c) initiate a new set of hearings under the auspices of a special intergovernmental constitutional forum that is designed to mediate and, if necessary, arbitrate disputes between provinces and the federal government, or between province and province, or between municipalities and the federal and/or provincial governments.
If choice (c) is made, then, the Senate subcommittee has several more options once a decision is rendered by the special intergovernmental constitutional forum. First, the subcommittee can let that decision stand. Secondly, the subcommittee can review the special forum's decision in order to check for procedural irregularities and relevant evidential omissions. If such problems are uncovered, the matter would be sent back to the intergovernmental constitutional forum, together with recommendations for reconsidering certain aspects of the issue. Thirdly, once the second option has been selected and the intergovernmental forum has given a second decision (which may be the same as, or different from, the initial decision), the Senate subcommittee has the right to accept that decision or put the matter before the entire Senate.
If an issue should be debated within the entire Senate and voted on, then, the House of Commons has the right to (a) let the Senate vote stand; or, (b) discuss and vote on the issue. If option (b) is exercised, then, the people of Canada have a right to seek a referendum on the matter.
In a referendum held under such circumstances, the people have the option of selecting from among four possibilities (a) the position of the House; (b) the Senate's position; (c) the intergovernmental forum's decision; or, (d) the initial constitutional forum's decision. The choice would be yes or no with respect to each of these possibilities.
If the people did not show a two-thirds majority preference for any of the four alternatives, the issue would revert to the full Senate body for further discussion and a new vote. However, both this discussion and subsequent vote should make every effort to incorporate and reflect as much of the voting pattern displayed in the referendum as is possible.
The advantages of such constitutional forums are considerable For example, they will be far more accessible to the community than is the Supreme Court. This is especially true in view of the fact that only lawyers are permitted to argue cases before the Supreme Court. In constitutional forums, on the other hand, people will be permitted, if not encouraged, to advance their cases by themselves or, if they wish, in conjunction with one or more consultants (who would be present on a volunteer only basis).
Moreover, the proposed forum approach likely also would be less intimidating and less inhibiting than courts since none of the formality of courts is to be used or encouraged. The emphasis would be on a serious informality.
Constitutional forums also could take a burden off already overburdened courts. At the same time, constitutional forums will not require complainants or participants to bear exorbitant legal costs since the forums would be conducted free of charge.
With respect to this latter point concerning costs, although the forums are to be run free of financial charges, all participants would be expected to pay some sort of a negotiated "fee". This fee would be paid by the individual through giving time to community service.
Money could not be given in lieu of time. The only acceptable currency would be temporal. In addition, the temporal fee would have to be paid directly. It could not be delegated to a third party.
Hardship cases would affect the character of what fees are negotiated. However, such cases would not affect the fact and manner of how that fee must be paid-namely, by direct, undelegated, temporal service to the community.
None of the decisions of the forum would carry criminal penalties. On the one hand, forum decisions would result in the placing of enforceable constraints on the activities of certain people, or in providing added degrees of freedom for those whose sovereignty had been breached in some unacceptable fashion.
On the other hand, sanctions could be levied in the form of compensatory fines or by requiring the individual to provide some sort of community service (e.g., providing volunteer help for the constitutional forum or during elections, referenda and recall activity) for a period of time. Such community service would be above and beyond the community service "fee" exacted from all forum participants on a negotiated basis.
In all of these cases, the emphasis and intent would be on finding ways of healing and restoring the social contract to a condition of balance where rights play off against duties of care in a more harmonious fashion than was the case prior to the arbitration hearing. However, if people fail to conform to the mediated/arbitrated decision of the constitutional forum, then, pending a review of the case by the forum, they could be faced with criminal contempt charges.
Principle of Civil Disobedience
Part and parcel of the responsibility of both the Senate subcommittee on constitutional issues, as well as the forums to which the former delegates authority, would be cases involving appeals to a principle of civil disobedience. Such appeals may be launched by people in the community as a defense with respect to certain criminal actions directed against them. In order to launch such an appeal, however, certain conditions must be met.
To qualify as a potentially defensible act of civil disobedience, the act cannot involve violence, physical injury or terrorism of any kind. In addition, the act cannot involve damage to private or public property, nor could it involve theft, extortion, fraud, prohibited sexual displays or illicit drug activity. Acts of civil disobedience concern acts that, on the basis of philosophical/religious principles, focus on intentional non-compliance with some provision of the rules and regulations that exist in society.
Generally speaking, the very nature of civil disobedience involves the violation of a law. When tried in court, the case often reduces down to whether or not the person did commit the offense. The reasons for doing so tend to be considered irrelevant or not germane to the evidential issues on which guilt or innocence is established, although such reasons may have some bearing on the kind of sentence given for the offense.
By appealing to the principle of civil disobedience before a constitutional forum, the individual has an opportunity to bring in the relevancy of the reasons or intentions underlying the action in question. Moreover, when such cases are heard by the forum, values, methods and perspectives would become activated which are more flexible and diverse than are allowed by the legal perspective. Nonetheless, if the constitutional forum should reject the individual's appeal to the principle of civil disobedience, then, the individual stands trial for whatever infraction of the law that may have been committed by the individual.
The principle of civil disobedience is intended to provide a venue for permitting individuals, organizations, institutions, associations and governments direct opportunity to help shape and contribute to the structural character of the Constitution. By permitting individuals an opportunity, under certain circumstances, to be able to challenge the law, a recognized procedural means is established for breaking, where warranted, the circularity of legal thinking.
Such thinking tends to be interested only in whether or not a law is broken, and not with whether or not justice is being done or with whether the law is a good one in the sense that the law enhances the quality of the social contract among people. The principle of civil disobedience provides individuals with direct access to the constitutional process, unmediated by judicial biases and preoccupations.
The Quality of Tolerance and the Need for Guidelines
One last point about the Senate subcommittee on constitutional issues and its appointed forums needs to be addressed. There must be a certain amount of willingness to tolerate, and make allowances for, a diversity of judgement from forum to forum with respect to similar constitutional issues. Just as municipal and provincial ordinances differ, respectively, from municipality to municipality and from province to province without everyone supposing that the Constitution, somehow, has been compromised in the process, so, too, lead-way must be given to accommodate the likelihood that not every forum necessarily is going to reach the same arbitrated judgement about one and the same constitutional issues.
Democracy, at its best, is a study in experimental living. Individuals, organizations, peoples, institutions and governments all try things out in order to see: what works and what doesn't work; what brings piece of mind and what brings misery; what is of benefit and what is problematic; what is feasible and what is not practical.
Part of the responsibility of assuming duties of care, as a sort of fee that is exacted for enjoying the fruits of the social contract, is the willingness of all of us to accept, within limits, a certain amount of experimentation in our lives. Nonetheless, there is a big difference in our attitudes toward, and commitment to, duties of care when: (a) such experimentation is imposed on one as the result of some sort of authoritarian power play; and, (b) such experimentation becomes a matter of reciprocity and willing participation by virtue of the degree of control one has over the situation through a properly constructed Constitution.
In order to try to strike a happy balance among: democratic flexibility of experimentation; issues of sovereignty (both individual and collective); as well as the need for a certain degree of constitutional rigor, there should be a provision entitling the Senate subcommittee on constitutional issues to reserve the right to review various cases after a stipulated period of time. This period should be neither too long nor too short-perhaps a year. The cases which would be particularly appropriate for this sort of review process would be those in which an arbitrated judgement was given by one forum that conflicted, in some fundamental fashion, with the arbitrated judgement given by other forums when dealing with the same or a very similar constitutional issue.
If the nature of the constitutional issues involved were too critical, injurious or problematic to make waiting a year feasible, the Senate subcommittee could proceed to render a further arbitrated judgement. This review process could either: (a) endorse a given forum's judgement; or, (b) combine aspects from several forum judgements as a sort of constitutional compromise; or, (c) deliver an entirely different kind of arbitrated judgement.
When finally approved, this sort of arbitrated judgements would become guidelines or parameters within which the different constitutional forums would have to operate during the tenure of the Senate subcommittee. As such, these guidelines and parameters would serve to help delineate the arrangement of constraints and degrees of freedom that generate the constitutional framework out of which, and through which, the forums conduct their business.
At the same time, the constitutional forums should be entitled to make appeals to the principle of civil disobedience if they find themselves in fundamental opposition to the constitutional guidelines set down by the Senate.
Under these circumstances, a hearing would be held before both bodies of Parliament, followed by a combined, free vote of conscience. A two-thirds majority would be required to carry a vote either in favor of the Senate's position or in favor of the forum's position.
If the people of the nation should be unhappy with the combined vote of both bodies of Parliament, then, the people would have the option of calling for a referendum on the matter. 'Depending on circumstances, the referendum could call for: (a) a yes or no vote on the result of the combined Parliamentary vote; and/or (b) a yes or no vote on the Senate's position; and/or (c) a yes or no vote on the position of that constitutional forum which made the initial appeal under the principle of civil disobedience. In this way, the referendum could make clear how the people felt about a given constitutional issue.
However, as indicated previously, if the referendum does not establish any clear-cut, two-thirds majority preference of the electorate, the matter reverts to the full Senate body for additional deliberation and disposition. In addition, the discussion and vote of the Senate must reflect as much of the character of the referendum vote as possible. In order to do this properly, the Senate body may have to employ a variety of post-referendum polls as a means of probing the significance and meaning of the referendum vote.
The results of such a referendum, or of the full Senate's post-referendum vote, would be the final arbiter in all constitutional matters until the next referendum held on that issue. Moreover, such referenda would serve to help spell out some of the constraints and degrees of freedom within which the House of Commons, the Senate and the constitutional forums would have to operate.
Diversity, Equality and the Social Contract
The willingness to tolerate a certain degree of diversity in the constitutional process is not a new practice or concept. In point of fact, Canadians have displayed such a willingness with respect to the manner in which they have tolerated, over the years, various courts giving differential rulings on similar, or the same, constitutional issues, as the compositional character of the philosophies of law characterizing the members of these courts have shifted.
Moreover, not all criminal courts are carbon copies of one another, as far as, what might be termed, their "styles of conduct" are concerned. The same is also true of civil courts.
More specifically, that different judges run their courts differently is a fact of life. Each judge has his or her own set of expectations about how lawyers will comport themselves in the judge's court. Each judge has his or her own set of do's and don't's within the court. Each judge has his or her own set of criteria for determining what they will and will not permit in his or her court.
Some judges run on a short fuse; others are more forbearing. Some judges are willing to provide more leniency and flexibility in the lands of motions they are willing to entertain and under what circumstances; other judges are less flexible. Some judges are more biased than are other judges. Some judges are more stringent in the sentences they give for particular crimes; other judges are less stringent in this regard for the same sorts of crimes.
These differences lead to self-similar, rather than self-same, activity from court to court. In other words, these differences reflect the exercise of discretion which is extended to the judges. As long as the exercise of such discretion does not transgress beyond certain procedural lines, the diversity of conduct is tolerated.
Lawyers also introduce an element of diversity into legal proceedings. Gathering pre-trial evidence, processes of discovery, introduction of evidence, questioning of witnesses, cross-examination, presentation of their client's cases, making objections, seeking motions, and summation are all skills that a lawyer needs.
Not all lawyers have these skills, or, at least, do not have them to equal degrees. However, as long as lawyers do not exceed certain minimum boundaries of conduct, practice and skill that mark the realm of malpractice, then, such diversity of capacity and ability are tolerated by the legal community.
When one combines the diversity of judges with the diversity of lawyers, together with a soupçon of diversity in juries, one gets a diversity of treatment for those who are brought before the courts in civil and criminal matters. To claim that everyone gets the same treatment within the judicial system is a myth that is not true now, was not true in the past, and will not be true in the future.
Furthermore, these differences in treatment are not trivial, peripheral issues. They lead to real consequences in the lives of people ranging from: whether the individual will win or be convicted in his/her case, to whether or not the individual will be sentenced, and, if so, how long the sentence will be. However, such differences of consequences and treatment often are pushed into the background in the attempt to argue that the judicial system constitutes a uniform way of dispensing justice and a uniform way of providing for equality of treatment before the law.
As envisioned from the constitutional perspective advocated in the present document, diversity of judgement need not be a liability as long as certain conditions are satisfied. First of all, people must have a real opportunity to participate in the judgement process. This means that the process must be: accessible, inclined to participatory modes of interchange, inexpensive, and responsive to the needs and concerns of individuals.
Secondly, there must be considerable flexibility in the way the judgement process unfolds. For rules of diversity to be an asset, then, the individual must be provided with a spectrum of alternatives from which to choose the one(s) that are most resonant to the individual's circumstances.
Fairness does not necessarily mean that everything is done the same way, but it does mean that everything which is done will satisfy criteria that help bring rights into line with duties of care. Circumstances vary from place to place, and the balance necessary in one place may not be the sort of balance necessary in some other locality.
Thirdly, the very fact of the existence of diversity in the judgement process must be brought, to front and center stage as a focal issue, rather than as a background issue from which we try to hide or which we try to deny altogether. By being aware of diversity as an issue, we stand a better chance of finding ways to countervail its potentially adverse affects.
Fourthly, there is nothing necessarily intrinsically wrong with the idea of competing systems of justice, as long as people are happy with the sorts of choices and consequences that those competing systems may offer. One of the truly ironic and intriguing aspects of Canadian history is that a Parliamentary and judicial system which has been as concerned, over the years, about promoting and protecting the principle of open and fair economic competition should be so resistant to the idea of competitive fairness in the realm of justice.
The traditional defense for the aforementioned resistance is that our approach to issues of justice and law must be monolithic in character or else we will not be able to provide equality of treatment in different cases, and, surely, so the argument goes, equality of treatment is one of the cornerstones of dispensing true justice. Whether or not equality of treatment is a necessary condition for justice, the fact is, as indicated previously, that if one means by the idea of "equality of treatment", sameness of treatment, then, such equality does not exist in Canada, nor has it existed in the past. Indeed, given human variability, one well might question whether equality of treatment - when construed as sameness of treatment - is either feasible or even possible.
On the other hand, if people are provided with a number of competing perspectives concerning the idea of justice, and if they are aware of the constraints and degrees of freedom associated with each of these alternatives, and if they are aware of the upsides and down-sides of these alternatives, as well as the strengths and weaknesses of such alternatives, then, let the people make their own choices. The important considerations are: (a) that each of the alternatives is a fair process; (b) that a person is prepared to accept the judgement of such a process, irrespective of whether the judgement will turn out in their favor or against it; and, (c) that a person feels their judicial system of choice is reflective of, or congruent, with his or her sense of what justice involves.
Just as is the case with other areas of competition, competition in the area of the judicial system could lead to a heuristically valuable process of cross-fertilization that generates improvements in the respective systems of justice. However, even if there were no process of cross-fertilization, the quality of sovereignty of both individuals and the collective would be enhanced through the diversity of judicial styles which permit selecting the one that was nearest to one's sense of justice.
Thus, if Native peoples have a totally different sense of justice than do, say, English or French Canada, how could anyone feel that one would be justified in imposing on the Native peoples a system of justice that is alien to, and in conflict with, values, beliefs and practices in which the understanding of Native peoples' understanding of justice are rooted? Only the worst, most virulent sort of ethnocentrism could be sufficiently deluded to suppose that such gross intrusions into, and abuses of, another people's sovereignty could be acceptable.
Similarly, if the people of a given province believe that, under certain circumstances, the death penalty is warranted-that the death penalty gives expression to one of the facets of justice, then, what arguments are to be invoked which can be shown, to the satisfaction of one and all, that such a conception of justice is mistaken? One of the truly remarkable aspects of the House of Commons' free vote of conscience on the death penalty is that the result was in opposition to virtually every Canadian poll that had been taken leading up to that vote. The vast majority of people in Canada wanted the death penalty, but the people's conception of justice conflicted with the sense of justice of those members of the House of Commons who voted against retaining the death penalty.
The deciding factor was not necessarily who was right or who had the better concept of justice. The deciding factor was who had power, and, in the case of the death penalty vote, the people were powerless. A small group of people were able to impose their sense of justice on millions of people who had a different conception of justice.
The concept of a social contract does not necessarily mean that each individual signs the same standard contract with some mythical, abstract entity called society. The social contract encompasses the entire realm of dialectical, dynamic negotiations between, and among, individuals.
These constitutional negotiations establish the spectrum of constraints and degrees of freedom that are to regulate to our handling of the issue of sovereignty. There is nothing in the dialectic which demands everyone's contract be the same. As long as the structural character of the social contract is such that it permits alternatives and that people have a right to select from among these alternatives, then, the social contract is fully capable of handling, among other things, diverse approaches to the manner in which justice is implemented.
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Copyright © 2004 Interrogative Imperative Institute. All Rights Reserved.
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