The crisis over Bill 21, it is increasingly well understood, stands at the centre of a larger crisis: the crisis of the notwithstanding clause.
Bill 21 would not be the crisis it is, after all, had François Legault’s government in Quebec not invoked the clause within its text. Without this “loophole,” as the Prime Minister has called it, Quebec’s religious minorities could have called upon the protection of the Charter of Rights, and of the courts as its interpreter. As it is, they are on their own.
Nor is this the only recent example of the notwithstanding clause being used not as the emergency safety-valve its proponents intended, but as a crude prophylactic against the Charter. The Legault government has also used it to pre-emptive effect with respect to Bill 96, the language law, while Doug Ford’s government in Ontario has lately deployed it to rescue its campaign finance law, having earlier publicly contemplated its use in another matter.
It is clear the two governments, with the support of conservative radicals in other provinces – it would not be surprising to see the Kenney or Moe governments join them – are bent on normalizing the clause, not merely to preserve this or that bill from judicial scrutiny, but for the purpose of a more general evisceration of the Charter, which they have always disdained as an unacceptable constraint on the sovereignty of their respective legislatures.
No mere controversy of the moment, then, this is a threat to the stability of the constitutional order, as Bill 21 is belatedly compelling us to recognize. Writing in the online magazine The Line, Andrew Potter, the former Ottawa Citizen editor and professor at McGill University, argues that the increasing recourse to the clause amounts to a unilateral amendment of the terms of the 1982 Constitution, and the careful balance it struck – between provincial rights and individual rights, and between the provinces and the federal government.
Mr. Potter makes the familiar argument that 1982 was a compromise between “the original concept of a federal Canada,” where citizens’ political identities are primarily local, mediated through and by their provincial governments, and “a newer understanding of Canadians as individual rights bearers with political and social identities prior to the state,” embodied in the Charter – a consciousness of common liberties that tends, inevitably, to a broader pan-Canadian identity.
The notwithstanding clause was to be the bridge between the two: if the Charter was unacceptable to its critics without it, the clause was acceptable to Charter advocates only on the understanding that it would rarely be used. That understanding having been broken, so, in effect, is the constitutional order created in 1982.
If the Constitution is to be restored to balance, then, the notwithstanding clause will have to be returned to its cage. But how? Abolishing it would require a constitutional amendment, and is therefore – thanks to the provinces’ capture of the amending formula – impossible. But so is any substantial restriction on its use or scope, such as the Quebec Liberal MP Anthony Housefather has proposed.
Mr. Potter suggests that Ottawa “declare its flat, unequivocal, and all-encompassing opposition” to the clause’s use, not only at the federal level, but also by the provinces: “always and everywhere, no matter the province, no matter the government, no matter the reason.” Yet he admits that this, too, would have little effect, beyond the symbolic.
I think we can go further. We can start by reminding ourselves that the tension at the heart of the 1982 constitutional debates was nothing new. It was no less present at the country’s founding. Representative though they may have been of the provinces that sent them, the Fathers of Confederation were also Victorian liberals, as much the disciples of John Locke as the American founders, and as conscious as they of the need to protect individual and minority rights – not only for their own sake, but as the basis of the new “political nationality,” transcending local identities, many of them spoke of creating.
Responsibility for the protection of minority rights from local majorities, they were equally clear, was to be vested in the federal government. And the instrument of this was to be the federal power of disallowance, as described in Sections 56 and 90 of the 1867 Constitution. “Under the Confederation scheme,” Sir John A. Macdonald advised delegates to the Quebec conference in 1864, “we shall ... be able to protect the minority by having a powerful central government.” George Brown likewise defended disallowance as a kind of appeal court for the victims of local injustice.
In the first decades after confederation, disallowance was used dozens of times. Since then, it is true, it has fallen into disuse, in the face of growing opposition from the provinces, and, latterly, the “legal liberalism” movement of the late 19th century, which held that rights were more properly adjudicated by the courts. Over time, and especially after 1982, the original guarantors of rights, the federal government and disallowance, gave way to the courts and the Charter; a new constitutional balance was struck, in place of the old.
But if the Charter, thanks to the increasing use of the notwithstanding clause, has become something of a dead letter – a Charter that cannot protect people from being denied employment on the basis of their religion is not much use at all – then neither the original constitutional balance nor that of the 1982 constitution remain. Perhaps the instrument by which the first was achieved can be the means of restoring the second.
The federal government could declare, ideally in the form of legislation, not only that it would never use the notwithstanding clause itself, but that it would use the power of disallowance to veto any law, passed by any provincial legislature, that invoked the notwithstanding clause. It’s too late to apply that remedy to Bill 21 – the Constitution requires that it be invoked within a year of a bill’s passage. But it could be used to prevent future Bill 21s.
Disallowance has not, as some have claimed, become void from disuse. The last time it was used, it is true, was in 1943 (in defence of another religious minority, Alberta’s Hutterites, whom a provincial law would have forbidden from buying land). But constitutional texts do not simply expire with the passage of time, particularly those, like disallowance, that were an essential part of the original Confederation bargain. Is there, nevertheless, a convention against its use? A convention applies, according to the accepted definition, only if all of the players, on all sides, agree to be bound by it. But the federal government has never acknowledged that disallowance is obsolete.
Invoking disallowance in defence of the Charter would be controversial, no doubt, but so what? So is, or should be, notwithstanding. There is, indeed, a pleasing symmetry between the two. Federalism 101 dictates that disallowance should not be used except in the most exceptional circumstances. Neither should notwithstanding. The point, ideally, is that neither would be: disallowance would be limited to bills invoking the notwithstanding clause. If provinces wish to avoid the former, they need only refrain from the latter.
In time we can discuss removing both from the Constitution. Until then, we might consider the merits of disallowance as an instrument of domestic statecraft: recalling the old constitutional order into existence to redress the balance of the new.
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