In the 1980s and ‘90s, governments in Canada wasted oceans of time trying to amend the Constitution. Nowadays they more often ignore it.
Take Bill 96, the government of Quebec’s latest attempt to suppress the use of English in the province, by means of such dubious legality as warrantless searches. That the legislation would trample numerous Charter of Rights guarantees underfoot may be presumed from the government’s pre-emptive invocation of the notwithstanding clause.
But the bill goes much further than merely annulling rights. That is, it purports to insert two clauses into the Constitution Act 1867, one saying that “Quebecers form a nation,” the other entrenching French as “the only official language of Quebec” and “the common language of the Quebec nation.”
Needless to say Quebec has no such power. A single province cannot unilaterally amend the Constitution of Canada, least of all where to do so would override other parts of the same Constitution – such as section 133, which allows for the use of “either the English or the French Language” in the legislatures and courts of both Canada and Quebec.
Meanwhile, in Alberta, the government is preparing to hold a referendum on whether equalization should be removed from the Constitution.
Again, this is not something that one province has the legal power to do, with or without a referendum. But as Quebec has long asserted a similar power to secede – and as the Supreme Court has ruled that, while it could not do so unilaterally, it could use a referendum to force the rest of Canada to the negotiating table – so Alberta has claimed a similar power to compel negotiations on changes to equalization.
These are only the latest outbreaks in provincial lawlessness. At the height of the pipeline wars, British Columbia passed a law asserting the power to block pipelines from crossing its territory; in response, Alberta passed a law asserting the power to deny other provinces access to its oil. Neither had a shred of constitutional foundation.
The notwithstanding clause, intended to be used only in emergencies, is now invoked almost routinely. Quebec has done so, not only with respect to Bill 96, but Bill 21, which imposes an effective hiring bar on observant religious minorities across much of the public sector, while Ontario has deployed it in defense of a bill that severely restricts third-party advertising during elections.
Not that Ottawa’s hands are clean. The Trudeau government’s broad-based assault on free speech on the internet, for example – regulating social media posts, expanding the hate speech laws, even suppressing certain material before it has appeared – is almost certainly unconstitutional.
It would be nice if the courts could be counted on to clean up this mess. But the courts have proved equally unreliable defenders of the rule of law. The recent decision of the Supreme Court upholding Ontario legislation halving the number of seats on Toronto City Council – in the middle of the past civic election – is a case in point.
The decision itself was not the problem. Legally, cities are creatures of the provinces, to do with what they please. It was the narrowness of the decision that was disturbing. The majority of the court were able to discern the required authority in Section 92 of the Constitution, which expressly includes “municipal institutions” among the fields in which each province “may exclusively make laws.”
But four members of the court thought the legislation could be invalidated, not with reference to what the Constitution actually says, but in obedience to certain unwritten conventions – not to assist them in interpreting the text of the Constitution, but as substitutes for it.
And while the majority may have brushed them back this time, the court has not been so circumspect on other occasions: most recently in Comeau, where it could not find a right of goods to be admitted freely into each province in the Constitutional provision that says exactly that, and before then in the Senate reference, in Nadon and the secession reference and the patriation reference and beyond.
A constitution, it is true, is more than the written text. It depends on a cultural consensus that the constitution is something to be respected, and not ignored, or overwritten, or bent out of shape by interpretation. In Canada, the institutions responsible for upholding that consensus – governments and courts – have repeatedly shown themselves incapable of it.
The result is a kind of muted anarchy, where the Constitution increasingly says whatever the most popular premier or determined ideologue says it does. The rule of law is being replaced by the rule of will.
But then the rule of law is one of those unwritten conventions, isn’t it? In the end it’s only a convention that we obey the law.
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