We Canadians like to think of ourselves as law-abiding people. We obey the laws of the land and defer to the courts that enforce them. We respect our Constitution and embrace its Charter of Rights and Freedoms. We worship at the shrine of that holy trinity: peace, order and good government.
We are so enthralled with this image of ourselves that we tend to take the rule of law for granted, even at times when it is under threat. Now is one of those times. In the past couple of years, a new generation of political leaders has begun chipping away at the foundations of our law-based constitutional system.
Let’s look at a few of those threats, moving from east to west on the map. The first comes from Quebec. Its Premier, François Legault, is up for re-election this fall and running on his promise to protect the French language and culture with two contentious bills.
Bill 21 forbids many government workers from wearing religious symbols while on the job. Bill 96 restricts the use of English in the civil service, extends French-language requirements to smaller companies and gives language inspectors extraordinary powers of search and seizure. To shield these dubious laws from the scrutiny of the courts – a fundamental check on government power in any democratic system – Quebec has pre-emptively employed the notwithstanding clause of the Constitution, the – until now – rarely used get-out-of-jail-free card that lets governments ignore constitutional protections for things such as freedom of religious practice. Mr. Legault has even taken the audacious step of amending a part of the Constitution to confirm Quebec’s status as a “nation” whose principal language is French.
Par for the course, you might say. It’s Quebec. But look just next door to Ontario, once a staunch defender of the constitutional order. Almost as soon as he took office, Premier Doug Ford, who shares Mr. Legault’s populist bent, threatened to invoke the notwithstanding clause to defend an arbitrary law cutting the size of Toronto City Council. When a judge dared to block the law, Mr. Ford called it “scary” and “disturbing.” After all, “he’s the judge, I’m the Premier.”
Mr. Ford was at it again last year when he used the notwithstanding clause to force through campaign-finance legislation after another judicial ruling he didn’t like.
Now turn to Alberta. Danielle Smith, a leading contender to replace Premier Jason Kenney as head of the United Conservative Party, says one of her first acts as premier would be to introduce something called the Alberta Sovereignty Act. Its aim is to solve what she calls the “Ottawa Problem” – the federal government’s “continuous economic and constitutional attacks” against her province.
Rather than argue endlessly with Ottawa or challenge its tyrannical edicts through the courts, Alberta would simply stop enforcing any federal policy or law that violated its “jurisdictional rights.” Brilliant. It’s amazing someone hasn’t thought of it before.
Even Quebec has not gone as far as to say it will just ignore any law it disapproves of. But this isn’t separatism, Ms. Smith insisted in a recent news release. It is just Alberta “effectively governing itself as a Nation within a Nation.” Oh, is that all?
Ms. Smith is offended that so many in the “woke media” and political establishment have taken aim at her modest proposal. She laments that some “have resorted to lashing out at the idea as entirely ‘nuts’ or ‘unconstitutional.’ ”
She can drop the quotation marks. Even Mr. Kenney, hardly a friend of Ottawa, has called it a “cockamamie” idea, perhaps unprecedented in the history of the British parliamentary system. If Alberta has any hope of attracting investors, he said this week, it must continue to be seen as a place that respects the rule of law and the authority of the courts, “not one that thumbs its nose, banana republic-style, at those foundational principles.”
The trouble is that, in the current atmosphere, Ms. Smith’s proposal no longer seems like such a leap. The notwithstanding clause, once seen as the “nuclear option,” is becoming as common as field artillery. Quebec is amending the Constitution all on its own. Ontario’s Premier is overruling impertinent judges.
We law-abiding Canadians don’t seem very upset about it. We ought to be. As a great Canadian once said, you don’t know what you’ve got till it’s gone.