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Freedom, Duties of Care, Principles, Constitutions, and Justice
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Constitutional Issues - Part Six
The Central ist/DecentraIist Dynamic
All of the suggestions made in the previous pages of this document provide for a strong central/federalist presence in Canada. At the same time, the structural character of that presence has been transformed substantially, from what is currently the case in Canada, by the various proposals in this document.
On the other hand, the centralist/federalist presence is counterbalanced with an extremely strong theme of decentralization which is manifested in the form of various kinds of power sharing arrangements and opportunities for participation by a far larger number of the people than is presently the case. Especially noteworthy in this push toward decentralization is the manner in which the constitutional process is made accessible to the people in a variety of ways that permit the average individual a greater array of choices through which to protect and enhance the quality of the individual's sovereignty.
Another way of stating the centralizing/decentralizing character of the proposals being advanced in the present document is in the form of a simile. From the perspective being advocated here, Canada is like an ellipse in mathematics.
The structural character of an ellipse is defined by the mathematical character of its two foci. These foci are the two points of mathematical moment, as it were, about which the perimeter of the ellipse rotates. Alternatively, each point of the ellipse's perimeter can be said to be under the dual influence of the mathematical function being given expression through the two foci.
Translated into concrete terms, the simile means that each social /political aspect of the structural character or form of Canada is governed by the influences of the dialectic of Canada's internal foci-namely, representative and participatory government. Said still less abstractly, from the perspective of the present document, the constraints and degrees of freedom which outline the perimeter of Canada as a social/political entity are a function of the dialectic between the Senate and the House of Commons.
Both bodies of Parliament should give complete expression to a combination of centralizing and decentralizing influences. In the altered character of the House of Commons which has been discussed in these pages, the ratio of centralizing to decentralizing tendencies is weighted in the direction of the former.
On the other hand, in the proposed reconstituted Senate, the ratio of centralizing to decentralizing tendencies is weighted in the direction of the latter sort of influences. In both cases, however, clear centralist/federalist themes are present.
Vested Interests and the Constitution
The proposals in these pages are fundamental in scope, import and ramifications. They call upon Canadians to look at the process of democracy in a way that is quite different from what Canadians historically are used to. In addition, the proposals introduced in this document will alter considerably the way power is acquired, exercised, delegated, distributed and implemented.
There may be many people who, for a variety of reasons, will resist these suggested changes. For example, presently, there are three facets of the Constitution Act of 1982 which cannot be changed without unanimous consent of the provinces, together with the federal government. These three features involve: (a) the continued presence of the monarchy; (b) the composition of the Supreme Court; and, (c) the amending formula.
Each of the foregoing themes is supported by vested interests that will resist any attempt to change the character of these constitutional precepts. How else is one to explain the fact that out of all the, quite possibly, far more worthy themes that could have been considered untouchable with respect to constitutional tinkering, just these three were selected?
All three of these constitutional themes, along with a number of other themes, will be jettisoned if the transformation of the Constitution suggested in the present document were to be adopted. Therefore, one can be sure that the previous proposals will generate considerable resistance. Such resistance, however, is not necessarily based on sound, democratic thinking.
As an illustration of what is meant by the claim at the end of the previous paragraph, consider the following. The idea of the monarchy has absolutely no place in a Canadian Constitution. It is a symbol of colonialism, not Canadian identity or unity. It is an intrusion upon Canadian sovereignty since our loyalties and our duties of care are to other Canadians, not to the Queen or King of England. Monarchy is a relic of history that belongs in the archives of Canada and not in the Constitution.
For those people in Canada who have a deep respect and love for monarchy, let them be free to observe that in their own fashion. Such people should be free to honor the occasions and events that give expression to the tradition of monarchy.
However, there is absolutely no tenable justification that can be given as to why paying homage to the English monarchy is incumbent upon, and must be imposed on, the sovereign citizens of Canada. Canada is a distinct and special society which is functionally, morally, politically, legally and socially independent of the English monarchy.
Similar sorts of arguments can be advanced against other entrenched themes of the Constitution Act of 1982. For instance, on the surface, the amending formula theme which is entrenched in the Constitution would appear to be a safeguard of democracy. In reality, the amending formula protects existing power structures of both federal species as well as provincial varieties.
The Constitution Act of 1982 is a Constitution of the governments, for the governments and by the governments. The vast majority of the people of Canada have no place in the present Constitution. The one area of the Constitution-namely, the Charter of Rights-which pays even token attention to people as people is elsewhere in the Constitution made subservient to the whims of governments.
In effect, the amending formula renders the generality of Canadian people powerless, for they are at the mercy of politicians to "represent" them. Unfortunately, in the political dictionary, the entry under "represents" all too often has a primary meaning of: the act of imposing one's ideas on others.
The current amending formula ensures that the vast majority of Canadians have no direct access to the constitutional process. Everything in that process is mediated through those over whom one has no control.
Contrary to the hype of politicians, elections do not constitute effective control, since, far too frequently, elections are merely the point of contact between a rock and a hard place. In other words, either one can vote people out of office once irreparable damage has been done, or one can vote people into office and watch helplessly as they proceed to do irreparable damage. If Canada is to become a truly democratic society in which more than politicians can participate in a meaningful, fundamental and empowered manner in relation to the constitutional process, then, the amending formula, as presently conceived, cannot be retained.
The final entrenched, untouchable theme of the Constitution Act of 1982 concerns the composition of the Supreme Court. Much already has been said in the previous pages about the problematic nature of using the judiciary as the point of leverage through which the constitutional fulcrum moves Canadian society. Nonetheless, one might repeat the following point.
Let us suppose (and this is a highly contentious supposition) that the Supreme Court jurists could definitely capture the structural character of what was believed, thought, intended and felt by those who created, voted for and implemented laws, statutes and constitutional directives. Let us further suppose (and, again, this is a highly contentious supposition) that the jurists could demonstrate the logical links between present cases and what the "creators" of the past intended. Despite these "givens", the fact of the matter is, all of this is largely, if not entirely, too narrow in scope to be of much value in helping the people of today resolve the issues of sovereignty, social contracts and participatory democracy.
Moreover, in many ways, such legalistic pronouncements are irrelevant since, in effect, they enslave the people of today to what was thought, believed and intended at another time and place. Why should the people of today legally be held responsible for a contract which they had no part in shaping, arranging, ordering or making?
To be sure, there must be some framework which permits continuity of sorts from one period to the next. Otherwise, there would be complete anarchy and chaos.
Nonetheless, the constitutional process we bequeath our children should be one that is flexible; fruitful and fair, rather than one which is stagnant, stale, and star-crossed. Consequently, while one may wish to keep the composition of the Supreme Court intact, the role of the Supreme Court, vis-a-vis the Constitution, must be terminated and replaced with something like the Senate subcommittee on constitutional issues and its associated constitutional forums.
How many people will seek out those alternative constitutional rooms (such as have been proposed in the present document) that have the potential for freeing the former from the shocks and pain caused by the present constitutional set-up remains to be seen. The uncertainty surrounding the willingness and capacity of Canadians to find a 'safe', or safer, less shocking, constitutional context is uncertain. This is the case because the degree to which Canadians have succumbed to a spiritual/conceptual condition akin to learned helplessness is still an open, unanswered question.
On the other hand, the amazing events in Eastern Europe which have taken place relatively recently have proven radical change is possible to achieve peacefully. One might suppose that if the people of those countries have been brave enough to seek to take control of their own lives, can Canadians afford to show any less courage as we step into the future?
Some people may wish to argue that the people of the Eastern bloc countries were in a desperate situation due to the brutal authoritarian, dictatorial manner in which they had been treated by their respective governments. In other words, sometimes desperation drives one to take chances that one wouldn't take under more congenial circumstances such as exist in Canada.
Furthermore, this line of argument might wish to maintain that we already have democracy in Canada, and, consequently, our situation cannot be compared, even remotely, with the situation that confronted the people in the Eastern bloc countries. We are free; they were not. We have democracy; they did not. Therefore, there is no need for Canadians to have courage with respect to our constitutional crisis.
The most difficult shackles of bondage to lose are those that are built from self-deception. In a sense, the people of Canada are faced with a more insidious form of totalitarianism than were the people of Eastern Europe.
In those countries, the enemy was external, concrete and palpable. In Canada, the enemy is internal and invisible. Here, the enemy is a mythology that has shaped and colored how Canadians see themselves and the world.
More specifically, despite the existence of a great deal of evidence that shows each of us to be: (a) powerless in many fundamental ways; (b) marginalized from the real essence of the constitutional process; as well as, (c) lacking in any effective autonomy with respect to the structural character of our own sovereignty, we still believe we are free participants in a democratic society. Consequently, because our political vision is blinkered, colored and distorted by the mythology of democracy which we are fed from infancy, we need even more courage than did the people of Eastern Europe.
We must not only come to grips with our own, internal demons of self-deception, we also must throw off the habits of a false mythology of democracy. Like some incredibly potent narcotic, this mythology binds us to constitutional ways which are not serving the interests of our sovereignty, either as individuals or as a collective.
Constitutional issues are far too important to be left to politicians. The non-elected people of Canada, who comprise over 99.9% of the population, cannot afford any more presumptuous, prematurely self-congratulatory Meech Lake travesties. The idea that politicians should negotiate our future, whether behind closed doors or in open sessions, is no longer, if it ever was, acceptable.
Canadians have an opportunity to do something very special with respect to constitutional issues. Canadians have an opportunity to be a shining example for the whole world. We have an opportunity to undertake a grand experiment in participatory democracy in a way that few, if any, other countries in the world have ever tried, let alone achieved.
The Constitutional Challenge
There has been considerable discussion recently concerning the idea of holding a constituent assembly to deal with the constitutional crisis. This idea has considerable merit, but it also entails a variety of potential problem areas.
For instance, two questions that readily come to mind are the following: Who is to be picked for such an assembly, and who is to do the picking?
The first question raises the issue of representation. Should just first ministers be invited to such an assembly? Should the participants only be elected officials of one sort or another? Should just provinces be represented? What about municipalities or regional governments? Should the invitees only be drawn from recognized political parties? Should partisan politics have any role in the deliberations of the proposed assembly? Are minorities to be included? Will half the delegates be women? Will the people attending the assembly be restricted to experts or professionals? Or, will so-called "common" people be admitted to the proceedings? How many people will be selected for the assembly?
The second question stated above-namely, Who is to do the picking of the delegates to a constituent assembly?-is a process issue. Is selection to be done by election? If so, how are candidates to be identified? Are participants to be appointed? If so, how will the appointment procedure be implemented? Who will make the decisions concerning such appointees? Will appointments be done on a random basis, or will certain kinds of criteria be applied in determining suitable constituent assembly participants?
In addition to the foregoing sorts of questions, there are numerous other problem areas. Each of these further areas involves critical issues. For example: Who is to set the agenda. for the assembly? What is to be the mandate of the assembly? How long will the assembly proceedings last? What procedural process will regulate the assembly meetings? Who will ratify the finished product of the assembly? What if the assembly's efforts are not ratified? Can the assembly's effort be modified in any way? If so, by whom and to what extent? Who will ratify such a modified document? Who will pay for the expenses of a constituent assembly?
Whatever answers one gives to the foregoing questions, there will be the additional problem of having to justify the judgements one makes with respect to each issue. Attendant to the justification issue will be disputes about the degree of persuasiveness of the various justifications that are given.
Finally, as if the foregoing questions, problems and issues are not enough of a burden with which to have to deal, there is one further difficulty. More specifically, none of the foregoing questions addresses the issue of what criteria are to be used to determine the substantive shape and character of a new or modified constitutional package.
In other words, there needs to be an articulation of the principles of democracy that are to be given concrete expression in any proposed constitutional package. Quebec, Native and aboriginal peoples, the status of women, senate reform, the amending process, electoral reform, regional disparities all have been the focus of an underlying desire for change with respect to how the present Constitution Act handles, or fails to handle, these issues. However, there is a need to discuss, in specific detail, the democratic principles and values which will link these issues together in a consistent, comprehensive, equitable and flexible fashion.
As I understand the situation, there seem to be at least four conventional ways of attempting to resolve the current constitutional crisis. Each of these has several variations associated with it.
1. The government in power decides on its own what constitutional course to pursue. This could be done with or without debate in the House of Commons. Moreover, if there were a vote in the House, this could be according to party discipline or a free vote of conscience.
2. The government in power puts forth a constitutional package and seeks ratification either through provincial legislative assemblies or by means of a public referendum. If provincial legislatures are involved, this may or may not involve one or more first ministers conferences.
3. A constituent assembly is selected or appointed to draft a constitutional package. This package, then, would be subject to ratification through: (a) the House of Commons; and/or, (b) the provincial governments; and/or, (c) a public referendum.
4. The status quo is maintained although some minor, cosmetic tinkering would be undertaken in accordance with the existing amending formula.
Although all of the foregoing possibilities have their upsides and their down-sides, I don't propose to discuss them. Instead, I would like to outline a further possibility. One might refer to the suggestion which follows as: the Constitutional Challenge.
In essence, it would be an essay-like competition (20 pages or less) whose theme would be the construction of a Canadian constitution. Anyone, 17 years of age or older who was either a citizen, a landed immigrant or had refugee status, would be eligible for the competition.
Essays would be judged according to a variety of criteria. Among these criteria would be: originality, fruitfulness, clarity, completeness, fairness, feasibility, potential for resolving outstanding constitutional crises, fiscal responsibility, flexibility, capacity for growth, rigor, and simplicity.
The competition would have a deadline, and the jurors would have six months to evaluate the entries. Furthermore, there would be a $20.00 entry fee to help defray the expenses of running the competition.
The jury judging the competition would consist of 13 people. At least six of the jurors would have to be women. The 13th juror's sex would be determined by some random means.
One juror would be drawn from each of the ten provinces plus two territories. The thirteenth person would be drawn from the federal government.
In addition, a number of different political groups would have to be represented. These groups include: Conservatives, Liberals, NDP, Social Credit, Reform, Christian Heritage, Parti Quebecois, Libertarian, Communist, Monarchist, Green Peace, Rhinoceros and Independent.
Furthermore, a number of different religious orientations would have to be included among jury members. Suggested possibilities are: Protestant, Catholic, Anglican, Jewish, Muslim, Hindu, Sikh, Buddhist, Native spiritual traditions, Zoroastrian, Taoist, Agnostic and Atheist.
The people appointed to the jury also should be drawn from a variety of different backgrounds. For example, one might select from among the following areas: business, labor, media, arts, law, medicine, science, humanities, technology, politics, religion, volunteer groups, police and retired people.
Finally, the jury members should be selected to ensure as much racial and ethnic equability as possible. Obviously, not all ethnic and racial groups may be capable of being accommodated on a 13-person jury, but every effort should be made to be as inclusive as possible.
In order to satisfy the foregoing criteria, each juror will have to fulfil multiple roles. For example, a selected juror could be a black female Catholic medical doctor from British Columbia who is a member of the Social Credit party.
The positions of juror would be selected on a random basis. Each time a juror was selected, a number of categories of personnel criteria would be eliminated so that subsequent juror choices would involve a narrower set of parameters that had to be satisfied.
The task of the jury would be to select four finalists from among the competition entries. These finalists would be judged according to the kind of criteria outlined earlier. Once the finalists had been selected, these entries would be forwarded to the House of Commons. The members of the House would debate the pros and cons of each of the candidates.
Eventually, after an agreed upon time limit for debate (set before the competition begins),' the House members would be given a series of free votes of conscience through which two candidates are to be selected from among the four finalists. The two finalists, then, would be subject to a public referendum. The winning entry would have to garner 51 % of the vote in the country.
There would be no provincial distribution requirements with respect to the vote since there would be an agreement by all provinces and the federal government to abide by the results of the competition. The fail-safe point for this agreement would be after the four finalists had been selected by the jury, but prior to the House of Commons debate and vote.
There are several guiding principles underlying the essay competition process outlined above. First of all, politicians and lawyers are not the only ones in Canada who are capable of constructing workable constitutional documents. In fact, there is considerable evidence to suggest that many politicians may be incapable of creating a workable, fair constitutional arrangement since they are too preoccupied with maintaining, or extending, their power base at the expense of, and to the exclusion of, the people.
In any event, there are a lot of talented, creative, intelligent, committed individuals in Canada. Politicians are doing Canada and Canadians a huge disservice if they do not call upon the plentiful human resources that exist in Canada to help resolve our constitutional crisis. The essay competition process provides a way of permitting this to happen in an equitable, representative, practical manner that invites, rather than discourages, the participation of Canadians.
For far too long, politicians have cajoled the sort of trust from Canadians that would enable the former to have virtually carte blanche authority to do whatever they pleased. Very rarely has this degree of trust ever been reciprocated by politicians with respect to the non-politicians of Canada.
In fact, even elections cannot be cited by politicians as an example of how politicians place deep trust in the wisdom of the people. Unfortunately, too many politicians tend to look at the election process as a calculated gamble rather than an exercise in trust.
The time has come for politicians to demonstrate a fundamental expression of trust in the people of this country. To paraphrase Prophet Moses (peace be upon him), I say to the politicians of Canada, let the Canadian people go. Give us an opportunity to resolve our own problems in our own way.
Secondly, the essay competition idea would offer women, Quebecers, Native peoples, minorities, Westerners, Maritimers and others who are deeply dissatisfied with the present Constitution an opportunity to come up with a package that addresses not only their own individual interests, but the interests and problems of Canada as a whole. While the essay competition process is certainly unconventional and non-traditional in style and substance, it offers a plausible and feasible methodology to afford many Canadians the sort of opportunity to participate in the constitutional process that very likely will be denied to them if any of the four conventional choices outlined previously become the method of choice for dealing with the present constitutional crisis.
APPENDIX
THE PURPOSE OF CANADA
Canada is a participatory democracy governed by principles. These principles involve a series of rights, procedural counterbalances, and duties of care which constitute protections and entitlements for, as well as responsibilities of, every resident of Canada.
The aforementioned principles set forth the conditions of social contract that give meaning and scope to the idea of a participatory democracy. These conditions underwrite the sovereignty of Canada as a nation of people who share a common perspective with respect to certain values and who continue to express a collective desire to live in accordance with the values inherent in that perspective.
Chief amongst these values is a commitment to constructively assist one another to develop educationally, economically, emotionally, politically, intellectually, physically and spiritually.
The intent underlying such constructive assistance is to support the development of every individual in Canada.
This assistance should be offered to such an extent that each person becomes capable of gaining substantial autonomy over one's life. In addition, the aforementioned assistance should lead the individual toward being able to constructively contribute to the enhancement of the quality of the various levels of sovereignty of Canada as a collection of peoples and communities.
The sovereignty of the people of Canada is vibrant and viable to the extent that principles of participatory democracy are firmly entrenched in, and rigorously pursued through, the institutional fabric of public life.
The power of government and the authority of law which give expression to that public life are derived from, and are to be critically evaluated in the light of, the principles of participatory democracy in which our sovereignty, both as individuals and as a nation, is rooted.
Consequently, the constraints and degrees of freedom that are established through the exercise of legal authority and government power are themselves circumscribed by the principles governing participatory democracy which are outlined in the ongoing constitutional process that constitutes the social contract of Canadians one with another.
A. THE SOCIAL CONTRACT
(1) No right is absolute. This means that rights are to be acknowledged within the context of a set of constraints and degrees of freedom. The structural character of the aforementioned set of rights and degrees of freedom will be shaped, colored and oriented by the dynamics of the social contract.
(2) The social contract is not a static, fixed document. It is an ongoing dialectic among individuals, communities and governments.
More specifically, the social contract is an agreed upon process that permits Canadians to pursue, protect and enhance their respective sovereignties. However, in order for such a process to be feasible, everyone who seeks to establish sovereignty must understand that inherent in the social contract process is a principle of reciprocity.
Effectively, reciprocity means that, in exchange for the degrees of freedom which are negotiated through the social contract process, each individual will be required to assume a variety of constraints on one's activities under certain circumstances.
(3) The constraints assumed by individuals, communities and governments are an expression of duties of care which are owed to others in order to allow the latter to pursue, protect and enhance their sovereignty.
(4) Social contracts are an attempt to negotiate a balance between rights and duties of care with respect to the issue of sovereignty. This balance is sought across a multiplicity of levels of scale, ranging from individuals to the nation as a whole.
B. DIVERSITY OF EQUALITY
The measure of equality used in assessing the degree of reciprocity and balance present in social contract negotiations is not necessarily a matter of there having to be a sameness of treatment for everyone concerned. The people of Canada should be provided with a constitutional process which is capable of generating an array of alternatives from which to choose.
The set of alternatives generated by the social contract process may not be exhaustive. Moreover, these alternatives will not be capable of satisfying everyone's needs or desires.
Nonetheless, people should be given access to a sufficiently wide array of possibilities in relation to the seeking of sovereignty that the degree of freedom gained will be considered to be worth the constraints assumed in exchange for such freedoms, rights and entitlements.
Such diversity of possibility in the arranging of social contracts increases the likelihood that individuals, communities and governments will believe they have been treated with equality despite differences in those arrangements from individual to individual, community to community, and government to government.
(2) The principle of diversity of equality is capable of being given expression in a wide variety of areas, including: justice, education, religion, economics and politics. Indeed, almost any facet of the social contract is amenable to the principle of diversity of equality.
C. RIGHTS AND DUTIES OF CARE
In accordance with the principles and spirit of the framework outlined in A. and B. above, there are a series of rights and duties of care that provide primary themes for negotiated settlement within the social contract process that regulates the dynamics of life in Canada. In general, every individual has an entitlement to certain degrees of freedom with respect to:
(a) conscience, personal philosophy, political orientation and religious conviction;
(b) speech, peaceful demonstration, organizational activity, artistic expression, media communication, and acting on one's beliefs and values;
(c) assembly and association;
(d) travel, mobility and immigration;
(e) voting and running for elected office;
(f) seeking employment, attempting to establish a business, engaging in business transactions, and receiving a fair return for one's services;
(g) procuring a place of residence.
The precise nature of the degrees of freedom to be permitted in any given area is to be determined by negotiated settlement among individuals, communities and governments by means of the social contract process outlined in the Constitution of Canada.
While constraints can be placed on the degrees of freedom to which one is entitled under various circumstances, the rights listed under (1) above can never be extin-guished, either temporarily or permanently. Furthermore, even when subject to constraints, the degrees of freedom permitted must provide some minimal level of entitlements through which sovereignty can be pursued, protected and enhanced in a substantial, non-marginalized manner.
(2) The foregoing areas, with respect to which individuals, communities and governments are entitled to certain degrees of freedom, also are subject to various duties of care. The constraints associated with these duties of care stipulate that one cannot establish one's own sovereignty while injuring the sovereignty of others due to discrimination, prejudice or bias concerning: sex, religion, political affiliation, economic/social status, age, ethnic background, racial characteristics, nation of origin, and physical or mental disability.
Individuals, organizations, institutions, communities and governments are entitled, under certain circumstances, to appeal to the principle of civil disobedience in order to pursue, protect or enhance their respective sovereignties;
(a) such an appeal is not permitted in any case involving: violence, physical injury, terrorism, property damage, fraud, extortion, theft and illicit drug or illicit sexual activity;
(b) one cannot appeal to the principle of civil disobedience in order to justify overriding the provisions of either C.(1) or C.(2) above;
(c) any action that does not fall under (3)(a) or (3)(b) above, but which involves the violation of municipal, regional, provincial or Federal statute, could be a candidate in relation to which an appeal to the principle of civil disobedience could be made;
(d) all appeals under the principle of civil disobedience are to be arbitrated by the Senate subcommittee on constitutional issues, in conjunction with the appropriate constitutional forum;
(e) if such an appeal is disallowed, the appellant must stand trial for violation of the statute(s) in question;
(f) while the services of the constitutional forums are free of financial charge, a negotiated charge of community service will be exacted from all appellants, win or lose. Payment of this negotiated charge cannot be delegated, nor can a financial arrangement be made in lieu of the service owed;
(g) failure to comply with the requirements of negotiated community service constitutes an act of contempt for the social contract process and is liable to criminal prosecution and/or the forfeiture of future access to the appeal process concerning the principle of civil disobedience;
(h) the arbitrated decisions of a given constitutional forum are considered to be final unless such judgements are revised during a review process by the Senate subcommittee on constitutional issues;
(i) if the arbitrated judgements of a given constitutional forum are revised in any way by the Senate subcommittee on constitutional issues, the matter must be brought before the full Senate for a discussion and vote;
(j) the House of Commons has the right to discuss and vote upon any constitutional issue which has been brought before, discussed by, and voted on by the full Senate body;
i) if the House of Commons chooses not to exercise that right, the decision of the full Senate body will stand;
ii)the vote of the House of Commons on such matters will be a free vote of conscience;
iii) if the House of Commons exercises its right, the electorate is entitled to a referendum on the matter;
iv) if the electorate chooses to exercise its right of referendum, it must choose among four possibilities: 1) the decision of the original constitutional forum; 2) the decision of the Senate subcommittee on constitutional issues; 3) the decision of the full Senate if different from 2); and the decision of the House of Commons if different from 1), 2) or 3). [This issue is explored further in section D.(12), (13) and (14).]
(4) The exercise of all rights, freedoms and entitlements must be done with a concomitant duty of care toward the effect such activity will have on the vitality, stability and preservation of the environment. Ecological issues are intimately connected to issues of sovereignty.
If the air, water, land, as well as the flora and fauna of Canada, are despoiled or economically exploited in an ecologically unsound manner, then, opportunities to pursue, preserve and enhance sovereignty, both individually and collectively, will be severely curtailed and undermined.
Consequently, every individual, organization, business, community and government must be prepared to accept constraints on the degrees of freedom associated with their exercise of rights, freedoms and entitlements with respect to the impact of the latter upon the environment.
(5) Education must be directed toward satisfying a variety of needs on a number of different levels of scale and in relation to a spectrum of social, political, economic, religious and philosophical issues.
More specifically, there must be a concerted effort within the processes of planning and implementing curriculum programs to co-ordinate and balance the needs of individuals, communities and the nation.
This process of educational co-ordinating and balancing must be capable of giving expression to both diversity of perspectives as well as themes of commonality and shared values.
In this sense, there should be a process of parallel initiation which allows individuals to be integrated with his or her own philosophical/ religious community, as well as to be integrated with the themes of commonality which hold the nation as a whole together.
As is the case with all other constitutional issues, education will reflect a dialectic between constraints and degrees of freedom, or between, on the one hand, rights and entitlements, and, on the other hand, duties of care and responsibilities.
D. THE SENATE
Each province and territory will elect four representatives to the National Senate:
(a) within every province or territory, one representative will be elected from each of the three parties that are currently most well established (in terms of numbers of constituents) in the given province or territory;
(b) a fourth representative will be drawn from non-traditional and/or independent sources outside of the three established parties within a given province or territory;
i) (b) will hold even in provinces where the total number of independents is low;
ii) this fourth representative will be an inducement to inviting a diversity of perspectives, as well as of participation, from those outside mainstream parties;
(c) every Senatorial representative will be free to vote according to his or her conscience and, therefore, will not be tied to party discipline unless the individual chooses to be.
(2) The term of office is for a period of six years.
(3) No one may serve more than two terms of office in the Senate.
(4) There will be six areas of Senate responsibility:
(a) government appointments on the federal level;
(b) environment;
(c) education;
(d) basic research and development in science and technology;
(e) budget (and, possibly, some additional financial watchdog duties);
(f) constitution.
(5) For each area of Senate responsibility, there will be a subcommittee which oversees that area of responsibility:
(a) each subcommittee will consist of a minimum of eight members;
(b) the elected members of the Senate will be assigned to a subcommittee by random lot;
(c) there can be no more than one representative from any given province or territory on any given subcommittee;
(d) there can be no more than two representatives from any given party or independent political affiliation per subcommittee;
(e) all votes within a given subcommittee will be decided by simple majority;
(f) in the event of a tie vote, one more vote may be taken after an agreed upon period of further discussion; if the second vote is tied, the matter automatically must be forwarded to the full Senate body for discussion and subsequent disposition;
(g) all members of a subcommittee must be present in order for votes to be considered valid;
(h) exceptions to (g) must be voted upon by the full Senate;
(i) whatever provinces do not have representatives assigned to the Constitutional, Educational, Environmental and/or Basic Research subcommittees in a given tenure of office, will have one representative assigned, on a random basis, to these subcommittees in the next tenure of office.
(6) The votes of all subcommittees, with one exception, are subject to review by the full Senate body:
(a) the exception to the above concerns those votes of the subcommittee on constitu-tional issues who endorse and do not modify the arbitrated judgements of constitutional forums;
(b) the review process of the full Senate body can end in one of three possibilities:
i) endorsement of the subcommittee's decision;
ii) rejection of the subcommittee's decision;
iii) endorsement of the subcommittee's decisions with recommended modifications;
(c) if the subcommittee's decision is rejected, the matter cannot be brought before the full Senate again until a year has passed;
(d) if the subcommittee's decision is endorsed with recommendations, the matter is returned to the subcommittee for further deliberation in the light of the suggested changes;
(e) a subcommittee is not bound to accept the recommendations of the full Senate, but it does so at its own peril since the matter in question may be returned, at some point, to the full Senate for further discussion and vote;
(f) votes of the full Senate must be decided by a two-thirds majority in order to be considered valid;
(g) if a vote of the full Senate fails to produce a two-thirds majority result, the matter returns to the appropriate subcommittee for further deliberation;
(h) a quorum of the Senate will be considered to be seven-eights of the full Senate body;
(i) all votes of the full Senate must be preceded by a debate or discussion;
i) the conditions governing such debates or discussions will be negotiated by the members of the Senate at the beginning of the body's tenure of office;
ii) the conditions governing debates are subject to a mid-term review process (i.e., after three years) in order to determine what, if any, adjustments are necessary to facilitate and improve the quality of Senate activity.
(7) The full Senate body must sit at least once every six months.
(8) Provincial counterparts to the Senate subcommittees on environment, education and basic research will be integrated with, and come under the control of, the relevant subcommittees.
(9) All subcommittees will be committed to, and concentrate primary emphasis on, the exercise of principles of participatory democracy and diversity of equality.
(a) principles of participatory democracy are designed to involve as many people as feasible from across all provinces, territories, regions, communities and municipal-ities, as well as from all strata of society;
(b) the principle of diversity of equality is designed to encourage the creation of alternative routes to, and choices concerning, the realization, protection and enhancement of sovereignty.
(10) The Senate appointments subcommittee must award half of all positions to women.
(11) The budget/finance subcommittee has the right to suggest additions, modifications and deletions concerning any budget proposal submitted by the House of Commons:
(a) upon completing its review process, the subcommittee will forward the budget to the full Senate body for consideration, discussion, debate and vote;
(b) subsequent to the vote of the full Senate body, the budget will be returned to the House of Commons for debate and voting;
(c) upon voting on the budget, the House of Commons will return the budget to the Senate subcommittee on budget/finances;
(d) no budget can be implemented until it has received the majority approval of both the Senate subcommittee as well as the full Senate;
(e) this subcommittee also has the responsibility of reviewing and, within certain limits, regulating the activities of federal financial bodies, such as the Bank of Canada.
(12) The Senate becomes the primary guardian of the Constitution:
(a) all constitutional issues are to be removed from the jurisdiction of the courts-in effect, this means that any judgement of the court which infringes on constitutional matters is, upon appeal, subject to review by the Senate subcommittee on constitutional issues or one of its designated constitutional forums;
i) court decisions on matter of substantive legal issues that do not infringe on constitutional principles are not open to review by the Senate subcommittee on constitutional issues;
ii) the question of infringement will be addressed, initially, by an appropriate constitutional forum only upon appeal by one of the parties of a legal dispute [see Section M - Legal Rights, subsections (2) and (3)];
iii) i) above does not preclude the Senate subcommittee on constitutional issues from reviewing and disagreeing with the arbitrated judgement of a constitutional forum concerning the matter of infringement on constitutional issues by legal proceedings;
(b) proposed amendments to, or modifications in, the character of the written Constitution must be initiated through the Senate subcommittee on constitutional issues;
i) constitutional forums do not have the authority to modify or amend the written form of the Constitution;
ii.) the task of the forums is restricted to issues of interpretation and the arbitrated judgements arising out of this process of interpretation;
(c) one or more constitutional forums will be appointed for each province and territory according to need and demand;
(d) constitutional forums will have the authority to accept or reject applications for review of constitutional issues that are delivered to them by individuals, organiza-tions, courts, communities, or governments;
(e) if a constitutional forum accepts an application for review of a case, it will render an arbitrated judgement within four months;
(f) each forum will consist of thirteen members:
i) forum members must be drawn from a diversity of disciplines and back-grounds, including: science, business, religion, psychology, sociology, economics, education, history, law, political science, environmental science and the media:
ii) half of all forum appointments will be women;
iii) the length of term will be for three years;
iv)no one may serve more than two terms;
v) appointments to the constitutional forum will be made by the Senate subcommittee for appointments;
vi) constitutional forums will operate under the authority of the Senate subcom-mittee on constitutional issues;
vii) no one party, political group, philosophy or religion may dominate a given constitutional forum.
(g) the arbitrated judgements of the constitutional forums are subject to review by the Senate subcommittee on constitutional issues;
(h) sections C.(3)(f) through (j) hold for all constitutional forums;
(i) when the arbitrated judgements of constitutional forums, as well as the correlative votes of the Senate subcommittee, the full Senate, the House of Commons, and referenda, have assumed their final form according to the requirements of the Constitution, these judgements are to be treated as reference points that are to anchor, shape, color and orient subsequent judgements and votes on constitutional issues during the tenure of office of the Senate body;
i) the term "final form" in the above section means those votes that become binding upon the people of Canada;
ii) votes concerning constitutional amendments or constitutional interpretations which take place prior to the last step permitted by the Constitution are not considered to have assumed their final form;
(j) subsequent tenures of office of the Senate body, together with votes of the House of Commons or referenda which occur after the tenure of office of a given Senate body, may be influenced by previous constitutional judgements and votes, but they need not be bound by those judgements and votes;
(k) unless a successful appeal is achieved with respect to constitutional judgements made during previous tenures of the Senate, the constitutional judgements established during the previous Senate tenures of office will remain in effect.
(13) The votes of the constitutional forums, the Senate subcommittee on constitutional issues, the full Senate, the House of Commons, and referenda are all subject to challenge by means of an appeal to the principle of civil disobedience.
(14) In constitutional cases involving disputes between, or among, different levels of government, a special intergovernmental constitutional forum will be convened in order to arrive at an arbitrated judgement with respect to that dispute:
(a) the thirteen members of the intergovernmental constitutional forum will be selected so that each of the provinces and territories will be represented in this forum.
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