Though his son is contesting the title of ‘Worst Prime Minster Ever,’ Pierre Trudeau is the winner and will probably defeat all aspiring incompetents for decades. He made many lousy policy decisions that had immediate damage, but for the worst decision, the damage has emerged over the decades. That policy was the repatriation of the Canadian Constitution without a practical amending formula.
Canada and Canadians, were left without a political amending solution to allow change to their constitution: This was an untenable situation; constitutions must change. Judges stepped into this vacuum; they were the only change agent for the constitution.
Unelected judges do not have the skills, incentives, nor balance to make constitutional changes. Allowing judges to make constitutional changes is a policy doomed to fail.
And judges cannot be both change agents and arbiters of differences of opinion.
The Canadian experiment will fail with inappropriate agents of change and an inflexibly brittle constitutional order.
Failure, being inevitable, should be squarely faced and assessed. Let us then squarely face the possibility, look at comparable failure experiences, and take lessons from those experiences to heart.
Our country is, in many ways, a partnership of provinces and regions. Our constating structure is closer to a partnership or joint venture than anything else. And we have experienced and learned lessons from failing partnerships: A critical principle that every lawyer knows is the principle of timing. In a failing situation, the partner who leaves first always does better. But departure too early means you leave something on the table, and too late, there is less on the table to divide in the breakup. Timing is everything. But there is a bias to going earlier rather than later.
The Western provinces can constitute a new state. Even landlocked, the new state would prosper and thrive. And leaving soon would allow us to settle favourable terms with our soon-to-be former partners.
And leaving now would allow us to go on civil terms. We could wish our fellow Canadians Godspeed (which would have the added benefit of irritating the Laurentian Elite) and Fare-Thee-Well. There is, at this moment, enough on the table to allow us to leave.