Notwithstanding Canada's Fracturing Confederation
Post 27 | Constitutional and Democratic Rights Pushback Heats Up
Along with repatriation of our Constitution from British control in 1982, Canada introduced the Charter of Rights and Freedoms to supersede the 1960 Bill of Rights. The Charter not only expanded human rights and fundamental freedom protections but added oversight of provincial statutes – a ticklish proposition in a federation of provinces and territories.
At the time of drafting Alberta and Saskatchewan argued for inclusion of section 33 which came to be known as the notwithstanding clause, to protect against potential overreach in the interpretation and enforcement of the Charter by unelected courts. It allows the provinces or federal government to pre-emptively shield a law from judicial action prior to its enactment, or to revive one that has been invalidated or paused by a court in areas that violate specific sections of the Charter - namely fundamental freedoms, legal rights and equality rights. Section 33 cannot be applied to democratic rights, mobility rights or minority language rights.
It has been well documented that the notwithstanding clause was a necessary concession to achieve passage of the Charter by the provinces. And it has been broadly agreed the unwritten spirit is for judicious use, reserved for unusual and extenuating circumstances.
To this day, Quebec has not signed the Constitution Act of 1982 nor the Charter of Rights and Freedoms - upset to have lost their veto over constitutional changes and piqued at minority rights references they disliked. They are still subject to the Constitution but do not recognize the Charter, despite the 1987 Meech Lake Accord and 1992 Charlottetown Accord attempts to bring them onboard.
Meanwhile, the mechanic for applying the notwithstanding clause to a bill requires merely to reference it within the body of legislation and Voila you have tap danced around a Charter issue for an initial period of five years. Upon expiration, five-year renewal periods may then be sought with no cumulative limit.
Notwithstanding Uses and Quebec Precedent
The years 1982 through 1992 saw heavy use of the notwithstanding clause with only a smattering afterward, then nothing for twelve years from 2006-2018, after which we’ve had eight new invocations.
Despite their non-recognition of the Charter, Quebec has been the most avid user of this powerful tool. In 1982 they applied it retroactively to every provincial law, then used it on every new law passed until 1985. They have subsequently invoked it 16 more times plus applied more than 60 five-year extensions. Many of the uses have been in areas of French language protection such as Bill 96 including expansive powers of Quebec's language office. And for protection of what they ironically call social cohesion in Bill 21* that prohibits certain public sector workers from wearing religious symbols in the workplace.
The remaining provinces have collectively invoked the clause ten times – Ontario (3), Saskatchewan (3), Alberta (2), New Brunswick (1), and Yukon (1). Courts intervened in four of these instances and five of the ten instances were dropped prior to royal assent.
The response from our federal governments and press to Quebec’s dozens of uses has almost always been muted, treating them like the drunk uncle at Thanksgiving dinner no one wants to confront. The silence is more deafening when considering the tangential impacts on the unity of Canada and the destruction of Anglophone rights within Quebec enabled by some of the legislation. More pointedly, Quebec’s use set a loud precedent that section 33 could be used as a blunt tool to give the middle finger to the Charter.
Yet when Saskatchewan Premier Scott Moe invoked the clause last October to revive the previously active Bill 137 that had been paused by the court - where that law required parental permission for transgender students under the age of 16 to use different names or pronouns at school - the finger wagging was vigorous. And Doug Ford was pilloried in 2022 when he applied the clause in back-to-work legislation for 55,000 education workers.
Both instances awoke Justin Trudeau and his minions to publicly opine on the dangers of section 33. And the press, led by the CBC, trotted out constitutional academics to hold forth on the matter - and where derogatory and judgmental references to Saskatchewan and Ontario’s use of the clause as being populist and dangerous can be readily found.
But the notwithstanding clause examples represent only one element of the struggle underway to protect constitutional, democratic and provincial rights in Canada.
[*Quebec is about to begin a push for a five year extension to Bill 21. I suspect we’ll hear nothing from our three federal party leaders and little from the press – except perhaps to mouth platitudes about Quebec’s right to use the clause.]
Broader Constitutional Wrangling in the Courts
Post 18 | Dangerous Combo – No Term Limits and Excess Powers of a PM outlined the nearly totalitarian powers of a Canadian Prime Minister. It noted that we have only one elected body in Canada – our House of Commons – while the Senate and powerful Judiciary are appointed, an unelected civil service continues growing in size and control, and our Crown Corporations run almost unfettered.
Our judiciary’s nine Supreme Court justices, 74 federal judges and more than 830 provincial judges are all federal government appointments with no oversight of those appointments beyond the PM and a small cadre of governing party insiders. And while this has always been so, it takes on more weight as we increasingly see constitutional and jurisdictional issues being thrown over to those courts.
There are many issues making their way through our courts, brought forth by provincial governments, corporations and civil groups. Many we never hear of, but a few of the louder and more topical examples follow.
In response to a case brought by the Canadian Civil Liberties Association and the Canadian Constitution Foundation regarding use of the Emergency Measures Act in February 2022, the Federal Court ruled three weeks ago that it violated our most essential rights to freedom of thought, belief, opinion and expression, despite a prior public inquiry ruling otherwise.
In November 2023, the Federal Court ruled in a case brought by several plastics companies that a key aspect of the federal government's actions in support of its zero plastic waste agenda was unreasonable and unconstitutional, paving the way for us to again drink from something other than soggy paper straws.
In 2023 Alberta won a Supreme Court action to limit application of the federal Impact Assessment Act on provincially controlled natural resources projects – the Act being deemed largely unconstitutional.
Quebec just lost a Supreme Court case that will impact all of Canada – where they sought to limit federal Bill C-92 (An Act respecting First Nations, Inuit and Métis children, youth and families) giving indigenous communities control over how indigenous child welfare is to be handled, despite child and family services being within provincial jurisdiction.
Last April, Saskatchewan passed Bill 117, a law requiring federal firearm seizure agents to be licensed by the provincial firearms office when applying the federally mandated gun buyback program. Unrelated, Saskatchewan also announced in January they would not collect federal carbon tax on home heating in their province.
The canary in the coal mine for a potential reshaping of federal/provincial relations will be eventual court outcomes of the Alberta Sovereignty Within a United Canada Act passed in December 2022, where Alberta declared a blanket instrument through which to ignore federal laws of its choosing if they are deemed to encroach provincial jurisdiction or endanger Alberta’s wellbeing.
It seems Canadians have had sand kicked in their face too often by a bullying government and are beginning to push back.
Where is our Confederation Headed?
Our Charter begins with, “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
This nods to the social contract written of by political philosophers Thomas Hobbes and John Locke in the 17th century - that we are willing to surrender some personal freedoms for the judicious management of our well-being by the state. Given the fracturing in recent years of that social contract due to government overreach and unconstitutional behaviour, we face some big challenges in this country. But Canada retains a strong majority desire for unity, supported by constitutional tools enabling us to create a better balance of federal/provincial powers, and solidify our reasonable and justifiable rights.
Canada is now 156 years old and continuing to change and reshape itself. The question is whether we should be afraid of dynamic changes in federal/provincial relations or accept them as the natural course in a young country.
Some changes being sought are a response to ongoing economic disparities, including disproportionate contributions by some regions and continuing welfare of others. Some is genuine concern for provincial wellbeing, while some could be labelled as political muscle flexing. And some is undoubtedly a reflexive pushback against the last nine years of federal rights overreach, economic destruction and cultural manipulation - inspiring an enough is enough reaction by provinces and citizens.
Premiers like Danielle Smith in Alberta and Scott Moe in Saskatchewan seem prepared to take on the fight, and others like Blaine Higgs in New Brunswick offer hope that some pragmatists are in positions of power.
This country is entering times of significant change – court battles will be fought, more challenges will arise as to where and how federal powers can be applied, and our comfortable reliance on Canadian unity as we’ve known it may be severely tested.
We should be candid, however, that we are not currently the poster child for a united country and are not the single nation we believe ourselves to be. Refer to the 2006 non-binding vote in Parliament that, “The Québécois form a nation within a united Canada” and the now commonplace references to the Nation of Quebec used by politicians. And look to Canada’s signing of the sweeping 2022 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) Act, further ensconcing the concept that Trudeau has been pushing during his time in office - that Canada and indigenous groups should have a nation-to-nation relationship. Despite voting down both issues in the 1992 Charlottetown Accord Referendum, these realities have been foisted on us.
While my greatest hope is for Canada to become more unified and strong I must accept that it is not currently the case, with the genie already out of the bottle. In that light, the fact that our country may look yet different in twenty years seems less of a rub.
Along that road, we should welcome strong provincial leaders and citizens willing to stand up for our democratic and jurisdictional rights, applying constitutional tools available to them with goodwill and restraint – as a check and balance against outsized federal control. And perhaps we can forgive them some hyperbole and mild excesses in that pursuit.
One of the tools to be employed is the notwithstanding clause. Indeed, it must not be used flagrantly or with casual regularity that may erode our Charter’s value as has been arguably done in some instances. Yet it is an important option in our Canadian democratic toolkit and unlikely to be rescinded or diluted any time soon.
I worry little that the recent spate of notwithstanding uses and provincial challenges represents a major threat to our democracy and Charter – concerning myself more with the growing violations of the social contract and what that means to our democracy if left unchallenged.
If we also one day elect a principled and pragmatic federal government that understands its responsibilities, executes well, and stays in its lane then we have a good chance to right this listing Canadian ship.
Stay tuned and stay pragmatic.