The Slow-Moving, Silent, and Creeping Constitutional Crises facing Canada

Introduction:

Recent laws passed by the Provincial Legislatures in Alberta and Quebec have reignited old, unsettled frictions about the appropriate division of powers between Canada’s Provinces and Federal Government. The following article will be divided into three parts, outlining a) the post-repatriation history of constitutional negotiations, b) recent legislative developments in Alberta and Quebec that have challenged the constitutional status quo, and c) the future implications of these recent laws on Canadian federalism.  

Part I: Scars of the Past

The late 20th century was a tumultuous time for Federalism in Canada. The spark that lit the fire was the Meech Lake Accord, negotiated in 1987 by Prime Minister Brian Mulroney and all ten Premiers of Canada’s Provinces. The overarching goal was to obtain Quebec’s consent to the Constitution Act, 1982, which had been ratified without Quebec’s endorsement. The Meech Lake Accord sought to, among other things, a) recognize Quebec as a “distinct society” in section 2 of the Constitution Act, 1867, operating as an interpretive clause for the entire Constitution, which meant the courts could rely on it to draw further meaning from other provisions in the Constitution; b) provide Provinces with the power to prepare the shortlist of Supreme Court of Canada (“SCC”) and Senate nominees for the Prime Minister to choose from; and c) a Provincial right to reasonable compensation from the Federal Government should they opt out of Federal programs that fell within the exclusive jurisdiction of the Provinces. Nearly three years later, the proposed amendments failed to gain the necessary support for ratification under section 41 of the Constitution Act, 1867.

Following the failure of the Meech Lake Accord, Prime Minister Mulroney yet again attempted to bring Quebec into the constitutional family, restarting negotiations for a set of new proposed constitutional amendments in 1990. An agreement was reached in 1992, known as the Charlottetown Accord, which sought to a) cede jurisdiction for forestry, mining, cultural affairs, and a variety of other areas that were previously Federally regulated to the Provinces; b) provide for an equal, elected, and effective Senate; c) constitutionalize the SCC appointment process; and d) recognize Quebec as a “distinct society” within the Constitution. Despite having the full support of all ten Premiers, the Mulroney government decided to submit the Charlottetown Accord to a national referendum, while a parallel referendum took place in Quebec. Both nationally and in Quebec, the referendums failed. A subsequent independence referendum  — known as the 1995 Quebec Secession Referendum  — took place three years later in Quebec. The referendum was partly a reaction to the failure of either Accord to be ratified but narrowly swung in favour of having Quebec remain in Canada. 

Part II: Cracks of the Present    

The failures of the past have a strong nexus to the challenges Canada now faces in the present, specifically as it relates to recent developments in Alberta and Quebec related to the proper balance between Provincial power and Federal authority.

Unilateralism in Alberta

On October 6th, 2022, Danielle Smith became the new Premier of Alberta, succeeding incumbent Jason Kenney as the leader of the United Conservative Party (“UCP”) (Global News, 2022). Among the many proposals she had fielded during her leadership campaign, the most salient for this article was the Alberta Sovereignty Act [ASA]. Smith argued that the ASA would give Alberta the authority to ignore any Federal legislation or Federal regulatory authority decisions that intrude on Provincial jurisdiction (Edmonton Journal, 2022). Alan Ross (Managing Partner of Borden Ladner Gervais LLP Calgary) described the Act as amounting to what is essentially a “reverse notwithstanding clause” (The Globe and Mail, 2022).

In s. 33 of the Canadian Charter of Rights and Freedoms [“Charter”], Provinces have the power to keep in force and effect (for a period of five years) any Provincial law determined unconstitutional by the judiciary. The ASA, however, would allow Provinces to not abide by Federal laws that had been determined constitutional by the judiciary, so long as the Province deems it ultra vires. Should this legislation pass Alberta’s legislature, it would significantly destabilize the current division of powers, as prescribed in s. 91, s. 92, s. 94 (a), and s. 95 of the Constitution Act, 1867, and s. 24(1) of the Constitution Act, 1982. Section 91 outlines the powers afforded to the Federal Government, while section 92 outlines the powers afforded to the Provincial Governments. Section 94(a) and section 95 provide for shared jurisdiction on a number of matters, so long as both the Province and Federal Government approach the issue in harmony. Finally, section 24(1) provides the judiciary with the power to render any piece of legislation – whether Provincial or Federal – of no force or effect should it be judged to be in contravention of the Constitution.

In providing Alberta with the power to unilaterally immunize itself from Federal legislation – which is distinct from the current arrangement of empowering Provinces to challenge Federal legislation in court should they deem it ultra vires – Alberta is traversing into uncharted constitutional waters. There is no present legal mechanism available to allow the Federal Government to navigate through a situation where a Province refuses to both enforce Federal legislation and, more exceptionally, to do so regardless of the dictates of the judiciary on the matter. The judiciary’s role was inter alia precisely designed to mediate between Provincial and Federal claims of jurisdictional overreach. If they are systematically excluded from exercising this power, what recourse does the Federal Government have to respond to this situation? In this way, the ASA, should it be able to leap over its legislative hurdles, poses a significant destabilizing threat to Canada’s current constitutional stasis.

Unilateralism in Quebec

On October 3rd, 2022, Francois Legault convincingly won a second term as Premier of Quebec (winning 90/125 seats in the Quebec National Assembly), building on the majority he established in 2018 with the party – Coalition Avenir Quebec (“CAQ”) – which he founded in 2011 (City News, 2022). On June 1st, 2022, Bill 96, known as An Act Respecting French, the Official and Common Language of Quebec, was signed into law after being passed in the Quebec Assembly. The law, among other things, amends s. 90 of the Constitution Act, 1867, declaring that Quebecers form a nation and that French is the common — and only— language of the Province. 

While the actual amendments may merely reiterate what all members of the Confederation consider self-evident, it is the instrument used to make these amendments that have caused constitutional scholars to sound the alarm of a brewing crisis. Benoit Pelletier, Quebec’s Minister of Intergovernmental Affairs, justified the amendment by relying on s. 45 of the Constitution Act, 1982, which states that, “subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province” (CBC News, 2022). Pelletier explained that, although the provision specifies that this power applies only to Provincial Constitutions, because it does not affect federal-provincial relations, it is not in contravention of the Constitution (CBC News, 2022). The problem with this argument is that Pelletier provides no jurisprudential, legislative, or constitutional footing for this proposition. As Ian Peach of the Centre for Constitutional Studies explains, the existing legal authorities support the opposite position, asserting that no mechanism in Canada’s constitutional architecture permits Provinces to amend the Constitution unilaterally (Peach, 2022). As Peach explains, the SCC in Reference re Secession of Quebec [1998] 2 SCR 217 [“Quebec Secession”] made clear that “constitutionalism and the rule of law” are fundamental constitutional principles (Quebec Secession, para 70). The rule of law includes inter alia that “the law is supreme over the acts of both government and private persons” and that “the exercise of all public power must find its ultimate source in a legal rule” (Quebec Secession, para 71). Constitutionalism, similarly, requires “all government action must comply with the law, including the Constitution” (Quebec Secession, para 72). The only way to amend the Constitution is through s. 43 of the Constitution Act, 1982, which states:

An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces, including

(a) any alteration to boundaries between provinces, and

(b) any amendment to any provision that relates to the use of the English or the French language within a province, may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each Province to which the amendment applies.

This provision requires that both the Provincial legislature and Federal Government authorize the passing of any amendment with the characteristics of Bill 96. Quebec has provided no legal footing for circumventing this amendment procedure and, by not gaining legislative approval from Parliament, has failed to respect the constitutional texts’ supreme authority. In essence, a unilateral amendment to the Constitution is unequivocally unconstitutional.

Yet, despite this, when Prime Minister Justin Trudeau was asked about Bill 96, he stated that “Quebec, effectively, has a right to modify part of the Constitution” (CBC News, 2022). The opposition party leaders expressed similar sentiments. It is clear that, in the eyes of Parliament, the content of the unilateral amendment lacks consequence, and so there is no impetus to fan the flames of constitutional controversy (and lose potential electoral votes in Quebec) by pushing back against Bill 96. This, however, is a severely short-sighted interpretation of these developments. In terms of the content of the amendment, there is simply no clarity as to what effect the added language will have on constitutional interpretation by the judiciary. 

In addition, on a structural level, two significant hazards arise from Bill 96 functioning unabated. First, the gates are now open for other provinces to amend parts of the Constitution that they believe exclusively affect them. They will expect that the Federal Government will not interfere, lest they raise concerns about preferential treatment. Second, the amendment completely disregards a linchpin of Canada’s system of government: democratic decision-making. The Constitution is a shared document applicable to and built by all Confederation members. The amending procedures built into the Constitution ensure that all members of this Confederation have a say in how it is changed through debate, discussion, and resolution. At a minimum, where s. 45 is involved, it allows Parliament, empowered by the citizens of this country, to have their say before it is executed. To sidestep the deliberately painstaking process of changing the core of the Canadian polity is to open up fissures of circumvention where complete uniformity and compliance are required.

Part III: Ruptures of the Future

In Alberta or Quebec, the seeds have been planted for what could blossom into a full-blown constitutional crisis. There is no precedent in the history of Canada where a Provincial Government has actively, knowingly, and enthusiastically breached its obligations under the constitutionally determined division of powers. Whether it is the Province of Alberta refusing to enforce Federal legislation or the Province of Quebec amending the Constitution without the Federal Government being consulted, the two governments are making it clear that they are willing and ready to engage in seditious activities. 

These developments have coincided with this year’s “Freedom Convoy,” where Canadian citizens decided to engage in disruptive, sometimes dangerous protests in opposition of Federally imposed vaccine mandates. These protests went on for weeks and veered, at times, into active rebellion, prompting the Trudeau Government to invoke the Federal Emergencies Act (CBC News, 2022). It is also worth noting that a large contingent of those protestors travelled from Alberta and Quebec to Ottawa. Moreover, all of these developments have come off the heels of the 2020 Wet’suwet’en protests of the Coastal Gaslink Pipeline project, where Indigenous communities asserted their rights to self-governance and self-determination with fervour and renewed urgency (Al-Jazeera, 2020). These developments have all reignited questions about Canadian national identity, including the carefully brokered conditions on which each Province entered into the Confederation, the relationship between the Crown and Canada’s First Nations, and the nature of Federalism itself. All of which were issues that dominated Canadian politics and the nation’s broader imagination during the late 20th century. 

As the fabric of the Canadian state begins to show signs of small tears in its stitching, it is essential that the Federal Government – whomever is at the helm – grapple with these issues, engage in discussions and deliberations, and fashion solutions, whether legal, political or both, to ensure the Canadian union is preserved. There are no guarantees in the realm of politics and statecraft, even in highly developed Western nations. Just in the 21st century alone, we have seen successful votes for secession in Kosovo, South Sudan, and, most recently, Bougainville, after each country went through their own constitutional crises. To continue as the Federal Government has, taking a hands-off approach to these long-festering Provincial pivots to greater autonomy, is to risk fracturing the Confederation beyond repair.