Is Canada governed by a strictly enforced constitution and a fixed set of protected rights? Or is all that paperwork just polite suggestion? Looking at recent events across their country, Canadians may be excused for concluding that they’re living under the constitutional equivalent of Calvinball — where the rules of the game are simply whatever the guy holding the ball feels like doing.
Constitutional ambiguities are a long-standing Canadian headache. In 2006, Prime Minister Paul Martin unsuccessfully ran for reelection vowing to scrap the constitution’s so-called notwithstanding clause, which allows the passage of laws that violate civil rights otherwise protected (subject to only a few conditions) by the Canadian Charter of Rights and Freedoms. The clause, which was added in 1982 as a sop to those who thought constitutional rights were too American, seems to have been regretted almost immediately, and never became a commonly used tool. As early as the 1990s, scholars were calling it a lapsed power.
But do constitutional powers fade away just because governments don’t use them? Recently, a pair of headstrong provincial premiers have decided to see.
On Nov. 4, thousands of Ontario education workers went on strike, shutting down many of the province’s schools. Premier Doug Ford responded by using the notwithstanding clause to pass so-called back-to-work legislation, unilaterally imposing a contract on the unionized workers that could not be challenged in court. He was swiftly denounced for trampling the constitutional right to strike — a right that is itself a somewhat shaky piece of Canada’s constitutional architecture.
There are no explicit worker rights in the Charter of Rights and Freedoms, and in 1987 the Supreme Court of Canada declared that the charter “does not include, in the case of a trade union, a guarantee of the right to bargain collectively and the right to strike.” Twenty-eight years later, however, the court said, on second thought, the right to strike is constitutionally protected by the charter’s “freedom of association.”
Ford’s government, in other words, used a power many considered dead to violate a constitutional right that until quite recently was not believed to exist. Got that?
Meanwhile, Quebec’s ardently chauvinist premier, Francois Legault, invoked the notwithstanding clause to grant similar protection to Bill 96, which (among other things) allowed members of Quebec’s infamous “language police” to stage warrantless raids on private businesses to ensure compliance with the province’s strict French-first language laws, and Bill 21, which prohibited religious headwear in the civil service. Legault’s use of the clause was more intuitive than Ford’s, as both bills involved a pretty brazen attack on the charter’s plain text: protection of religious freedoms and from “unreasonable search or seizure.”
In contrast to the rest of Canada, however, where the notwithstanding clause remains taboo, conventional wisdom says it’s okay when Quebec uses it. Before Legault’s 2018 election, the clause had been used 61 times in Quebec — and just three times in the other provinces.
More unusual was the fact that Legault’s Bill 96 also purported to change the Canadian constitution itself, adding new text declaring Quebec “a nation” — a power not previously understood to be within provincial jurisdiction.
Ottawa mostly shrugged. Parliament passed a supportive symbolic motion in June 2021, but the Canadian government’s official online version of the constitution hasn’t changed. In the end, the precise legalities of the situation probably don’t matter. The need to placate Quebec nationalists is clearly a principle that transcends law altogether.
Constitutional ambiguities are causing growing havoc for Canada’s democratic institutions, too.
Offense at Ford’s back-to-work bill provoked one of Canada’s leading unions to suggest that Prime Minister Justin Trudeau use his “disallowance” powers, whereby Ottawa can veto provincial legislation. Like the notwithstanding clause, disallowance has long been dismissed by experts as “lapsed” and not worth talking about, but now people insist on talking about it, so who’s to say?
In Alberta, meanwhile, the lieutenant governor — an obscure and unimportant figurehead ordinarily tasked with cutting ribbons and judging pies — has begun musing that she might use her own veto powers (also widely assumed to be lapsed) to overrule legislation passed by the province’s newly installed populist premier.
And so on. Trudeau’s declaration of emergency powers in response to pandemic-related protests earlier this year introduced many Canadians to the notion that their rights of expression, assembly and due process — even bank account access — can be swiftly revoked if the government deems them a nuisance. And there’s the growing possibility that Trudeau might attempt to cling to power even if he loses his parliamentary plurality in the next election, citing archaic precedents that the nation will be abruptly told to accept as uncontroversial.
While it’s worrying for a country to have so many unanswered questions regarding the rules of its basic operations, such concerns are usually waved away by evoking the generational trauma Canadians of a certain age feel about “reopening” the constitution to do some cleanup. About three decades ago, two ambitious initiatives to substantially reform the constitution ended in acrimonious failure, and this is now constantly cited to imply that any future such effort will initiate a similar era of pain.
There comes a point, however, when a whole different era of pain is the price of this cowardice.