We Are In A Constitutional Crisis

We Are In A Constitutional Crisis

Lots of people are arguing that if the Supreme Court of Canada (SCC) rules to restrict the Notwithstanding Clause (S33) or the Governor General dusts of the disallowance powers, that it wil trigger a constitutional crisis in Canada.  They are mistaken.

The minute Alberta and Quebec decided to legislate to unreasonably restrict or eliminate rights guaranteed under the Charter, they thrust a constitutional crisis upon all of us.

Quebec, with its "Bill 21" has imposed an unreasonable limitation on religious freedoms for those who work in the civil service of that province.  Quebec’s CAQ government has wrapped a thinly veiled attack on non-Christian faiths in a blanket ban on religious symbols and public prayer.  I don't care how much you want a "secular society", this is going way beyond anything that is defensible under S1 of The Charter. 

In comparison to Quebec, Alberta has been much more aggressive, using S33 to strip workers of rights to collective bargaining, labour action, etc. and to attack transgender people in Alberta.  Further, several of the UCP's more recent actions involve "invoking" Smith's so-called "sovereignty act" - a piece of legislation where the government claims it can simply ignore laws from Ottawa that it doesn't like.  Arguably, that law is on its face unconstitutional - it's little more than a power grab on Alberta's part. 

Make no mistake about it, we are in a constitutional crisis right now.  The minute that two provinces decided that they could redefine what rights citizens in their provinces could enjoy for purely ideological reasons, we were thrust into a crisis. 

Quebec's use of S33 with Bill 21 does not stand up to scrutiny - especially not when it came out in the wake of a failed bid to ban hijabs and other "traditional" headwear.  Bill 21, although it doesn't say it, attacks those whose religiosity is publicly visible - to what end?  What crisis is this addressing that makes the invocation of S33 justified?  As far as I can tell, there is none.  

Similarly, Alberta's use of S33 are indefensible.  The teacher's strike issue might contain a shred of justification in that it is important to resolve the strike quickly.  However, it fails on a subsequent test of whether the government had used (and failed) all of its statutory options - however the government left any number of instruments on the table, up to and including binding arbitration, and went straight to the nuclear option.  

The Alberta government's anti-trans legislation is based on a horrendous amount of disinformation, lies, and hysteria.  It does not stand up to any kind of scrutiny - the evidence it is based on is largely the same pseudo-science evidence that gave us The Cass Review in the UK.  I cannot imagine any aspect of Bills 26, 27 and 29 standing scrutiny under S1 of The Charter.  Smith went to the Notwithstanding option when it was becoming clear that those laws would collapse in the courts under Charter review.

How exactly does Alberta and Quebec end up in what seems like a most unlikely alliance?  Well - truthfully, I don't know the exact answer to that, but we do have some clues.  Really, it stems back to Kenney courting Alberta's extremist fringes, and then musing out loud about "the flames of separatism".  Kenney would go on to provide political support to the "Yellow Vest Convoy" and the subsequent "Freedom Convoy" protests.  Kenney definitely set the UCP on course to align with a separatist/isolationist government in Quebec. 

It should not come as any surprise that a separatist leaning government in Alberta would pivot towards asking Quebec for advice.  It's an old saw in Alberta politics that Quebec receives unmerited "special treatment".   So, an Alberta government desiring to "have more influence" might well look to Quebec for ideas and political strategy.  

Make no mistake about it, Danielle Smith has played a central role in pushing things to where they are.  It is a crisis, and it is a constitutional crisis.  Just because you aren't directly affected by the rights that have been revoked by the UCP in the last 2.5 months, the fact is that the UCP has declared that they see themselves as the final arbiters of what rights you are allowed in Alberta.  If this is allowed to stand, the use of the language "guarantees" in The Charter becomes meaningless, and that would be the most significant change to human rights in Canada since 1982. 

Consider the implications of major cases before the SCC now:

S33 has been used to limit rights without any kind of urgent situation in play.  Sure, Smith and the UCP will argue that there is "urgency" around Bill 26 because "there might be harm to children", and Legault's government no doubt argues that there is "urgency" in fostering a "secular society" that is free from religious symbolism.  Neither party has shown that they are responding to an actual emergency situation.  The governments in both cases could have taken far less drastic steps than they have to develop a basis upon which to act.  

Having taken the actions that they have, Alberta and Quebec have essentially taken the position that "provincial legislatures get to decide your rights".  Think about that carefully for a few moments.  This means that the entire civil rights regime in Canada for the last 40+ years has just been upended and is now very much in limbo.  Your fundamental rights under The Charter at this point are no longer guaranteed as a Canadian.

I want to be very clear about how dangerous that really is.  The approach being taken by the provinces is essentially "we can legislate however we like, and you have to just suck it up".  This is extremely dangerous for minority rights in Canada - especially gender and sexual minorities who are already subject to significant discrimination and marginalization.  Looking at Quebec's actions, even religious freedoms are subject to arbitrary limitations made by governments who decide that they don't like one religion's practices.  

Pick any other right you can think of, including matters of justice.  A province could decide that it is going to legislate that "anyone accused of a certain class of crime must be held in custody", and presto, there goes your right to bail.  Again, even though that is technically criminal law, the province could still invoke S33 to enforce it.  Similarly, a province could decide that a people with particular characteristics need to be held in custody "for their own good" (see Alberta's approach to addictions), and invoke S33 to prevent challenges based on "security of the person" and other individual freedoms.  

This is very much a crisis.  It might not affect your rights today, after all trans people are only a fraction of a percent of the overall population, and likewise, members of the Quebec civil service are also a relatively small fraction of the population of the province.  You probably know people who are affected by these changes directly, but because they don't affect you directly, it may seem a little abstract.  I encourage you to look through history where governments have chosen to strip people of rights for political reasons, and consider the idea that a government willing to strip one group of rights is more than willing to strip you of yours. 

If allowed to stand unchallenged, Danielle Smith and François Legault may well have ended the ordered constitution of Canada.