In the latest outbreak of provincial lawlessness, the government of Quebec has introduced a bill purporting to single-handedly amend the Constitution of Canada. Or rather, another bill.
The previous example, you’ll recall, was Bill 96, which among other improbabilities claimed the power to rewrite the Constitution Act 1867 to give formal legal status to the province as a “nation” – with whatever consequences for the federation – whose “common” and “official” language was French, and only French: the previous constitutionally guaranteed equality of French and English in the province’s legislature and courts, as it were, notwithstanding.
Now comes Bill 4, which states in its entirety that Section 128 of the same flimsy document, the one requiring “every Member” of the legislature of “any Province” to swear an oath of allegiance to the sovereign, “does not apply to Quebec.”
Leave aside whether members of the country’s legislatures should be required to swear to uphold the country’s system of government, rather than to destroy it. What is unarguable is that a provision that applies to every province may not be unilaterally amended by one province.
Even if the amending formula for provisions that touch on only one or some of the provinces (s. 43 of the Constitution Act 1982) could be stretched to apply to this case, it would still require the assent of the House of Commons and the Senate. Quebec cannot simply release itself from its constitutionally required obligations on its own. Assuming the Constitution still applies to Quebec.
What should the federal government do about this? We know the answer already. It is the same advice it is given in all such circumstances. It should do nothing. It should do nothing, not because doing nothing is necessarily the best course, but because to do something about it – even to speak against it, in anything but the most respectful tones – might upset Quebec. Or another province, as the case may be.
Which is, you understand, impermissible. Whatever else the federal government may say or do, on no account must it say or do anything that offends the provinces.
What should the federal government do about Bill 21, which prohibits the hiring of members of observant religious minorities in much of the Quebec public sector? It should do nothing. What should it do about Bill 96, and its deliberate flouting of the Constitution – to say nothing of the extraordinary prohibitions on the use of English, even in private conversations, backed by even more extraordinary powers of enforcement, including warrantless searches? Exactly: say nothing. Do nothing.
What should it do about the comically unconstitutional Alberta sovereignty act? Again, nada. To take any action would “only play into Danielle Smith’s hands,” as the government is constantly instructed. It would make her government mad.
And, of course, about the now routine use of the notwithstanding clause to eviscerate Charter guarantees of minority and individual rights – by Quebec, by Ontario, with other provinces soon to follow – yes, you guessed it. When all is said and done, nothing should be said or done.
Not that the Trudeau government is much in need of this advice. Doing nothing, saying next to nothing, in the face of this multiprovince campaign to turn the Constitution to mush has been its preferred course throughout. Oh, it might join a court case against Bill 21, though only after it has assured itself it has no chance of succeeding.
But Bill 96? If anything it is colluding in it: In response to Bill 96′s assertion of a provincial power to regulate the language of work in federally regulated workplaces, the Trudeau government hastened to produce Bill C-13, which would subject them to provincial language law.
The Alberta sovereignty act? “We’re not going to waste a lot of time” on it. The normalization of notwithstanding? Oh, that.
And the reward for all of this punch-pulling and pussyfooting? To be blamed for the provinces’ behaviour, on account of its alleged “aggressive federalism.” What is the substance of that aggression? It seems it made the provinces mad. It was not even necessary for it to confront the provinces for their own extra-constitutional adventures. Even the exercise of its own powers – over the environment, say, or in the spending of federal dollars – was enough.
The people who are making these arguments might at least have the decency to declare themselves. They are usually people who believe devoutly in the divine right of provinces to do whatever they please, whatever the Constitution may say about individual or minority rights or the division of powers – who believe that any exercise of federal power that frustrates provincial ambitions, or any exercise of judicial review, is illegitimate in and of itself.
But instead the argument is invariably framed as if it were federal “overreach” that were at fault for any jurisdictional friction, or federally appointed “judicial activists” who had bent the Charter out of shape – actual examples of either being rare upon the ground.
All that the Smith government is doing, they will say, by asserting an almost limitless veto on the application of federal law in Alberta, is to restore balance to the division of powers that Ottawa had unbalanced. All that Quebec or Ontario are doing, by using the notwithstanding clause to veto Charter rights they dislike, is to restore the Charter to its original intent, before the courts got ahold of it.
Thus is the eleventh commandment, Thou Shalt Not Offend The Provinces, depicted as a legal or even moral absolute, and not what it is really: raw power, on the provinces’ part, and raw fear, on the feds’.
Get this straight: The only reason to have a federation is to have a federal government. It isn’t just about provinces co-operating or getting along with one another: If that were all, they could do it as 10 separate states – exchange ambassadors, send fraternal greetings, the lot. It’s the particular role played by a federal government, invested with federal powers, that marks a federation apart from an alliance.
The Fathers of Confederation knew this. They created a federal government with real powers to do the things the provinces couldn’t or wouldn’t do on their own: to enforce a common market, to safeguard minority rights, and to otherwise ensure the provinces did not, in the individual exercise of their powers, do harm to the whole.
Now it can do none of those things. Nor, thanks to the notwithstanding clause, can the courts. We are told we must simply accept that Canada should be a place where religious and linguistic minorities are banished from the public square, that cannot function as a single economy, that cannot perform the most basic functions of a nation-state – or even call itself a nation. And we must do all these things in the name of national unity!
Only it hasn’t worked out that way, has it? The federal government has spent 50 years tiptoeing about, surrendering powers and money to one province or another, apologizing for its very existence – and the provinces are more aggrieved, more determined to wring whatever life remains out of it, than ever: to the point where they are now openly defying not just the feds, but the Constitution.
But the federal government must continue to do nothing. To do otherwise would provoke a “constitutional crisis.” Provinces emptying the Charter of any meaning, rewriting the Constitution on the fly, proclaiming themselves federal-free soil, that’s not a crisis. But the federal government responds, then it’s a crisis.
All right, then. What might be noticed about previous such crises, on those few occasions – patriation, the secession reference, the Clarity Act – when the federal government has worked up the nerve to proceed over provincial objections, is that it emerged with its authority enhanced, not diminished. Support for secessionism fell, not rose.
Perhaps this is not accidental. Perhaps when a federal government acts like a federal government, it reminds people that the federal government exists, that it has a reason for existing, that it has its own role and its own legitimacy, independent of what the provinces think of it. Constitutional crisis? Bring it on.