Painted Into A Corner
Canada's 1982 Constitution Act has broadly been unsuccessful, aggravating problems in five key areas.
In the coming months, I will be preparing several essays on how the Canadian constitution is faring in the 2020s, specifically, how the 1982 Constitution Act is performing. In short, the answer is now well, and the main problem is that a political deal that responded to short-term political imperatives in 1982 created vulnerabilities that the populist politics of the early 21st century are very adept at exploiting.
The central goal of the Constitution Act, 1982, was to “patriate” the Canadian constitution. Prior to that, the constitution was the British North America Act, 1982, an act of the British parliament. It remained one until that time because Westminster retained control of amending it, not because London considered Canada or any of the “dominions” as a colony, but because Canadians themselves could not agree on an amending formula. Westminster amended the BNA upon Canada’s petition, without that having a set formula. To remove the British role, amendment had to become a Canadian process, which meant an amending formula that codified the role of the provinces. Debate over an amending formula lasted for 20 years in Canada, from the Fulton Favreau formula of the early 1960s through the Victoria Charter of 1971. In short, Quebec sought a veto over all constitutional change on the grounds that the Quebec government spoke for the French side of a dual state. Other provinces objected to special treatment for any one province, meaning that a Quebec veto effectively meant provincial unanimity.
The Amending Formula
So the first problem with the 1982 Constitution Act is that the amending formula is ineffective. The basic amending formula is called 7-and-50, meaning that amendments need the support of seven provinces representing half the Canadian population, with no automatic veto for any province. This contributed to Quebec’s rejection–which continues to today–of the 1982 changes. However, on issues involving basic change to the structure of the federation, such as changes to the monarchy or its powers, or changes to the structure of federal institutions, unanimity would indeed be the rule. We saw in the failure of 1987 Meech Lake Accord the rejection of the first set of substantive amendments to the patriated constitution, rooted in the fact that most amendments would turn out to require unanimity.
As an aside that turned out to be significant, the 1982 Act also specifies that “the legislature of each province may exclusively make laws amending the constitution of the province.” The provinces do not have their own written constitutions (as the American states do), but they have laws of fundamental importance that can amount to unwritten constitutions. One could interpret this rule as simply stating that provinces would amend their own laws that formed part of their unwritten constitutions, but Quebec has embraced an interpretation that the provinces can amend parts of the Constitution Act that deal specifically with one province. In Bill 96 changing the Charter of the French Language, the National Assembly amended the Canadian constitution to declare Quebec as a nation whose only common language was French. The issue is electorally volatile and the Trudeau government has avoided taking a position on the validity of Quebec’s “amendment,” or asking the Supreme Court of Canada to rule on it. As we consider this and the other problems with the 1982 Constitution Act (plus the calls for Canada to replace the monarchy with a Canadian head of state), we need to keep in mind that the unanimity requirement potentially makes the constitution unamendable.
Quebec’s Exclusion
The next problem is the exclusion of Quebec from the Constitution Act. Quebec is not excluded in the legal sense–the constitution very much applies to it, and Quebec has seen legislation overturned for being inconsistent with the 1982 changes (Quebec (A.G.) v. Quebec Protestant School Boards, 1984). However, the dualist argument is powerful in Quebec, and has been argued in numerous political writings from the province, most notably in the contributions of André Laurendeau to the Royal Commission on Bilingualism and Biculturalism during the 1960s. The “distinct society” clause of the Meech Lake and Charlottetown Accords was an attempt to insert dualism into the constitution, and dualism is the inspiration of the Bill 96 constitutional language. The 1982 Constitution led to the 1995 sovereignty referendum, which narrowly failed, and it has contributed to the retreat of Quebec from Canadian political life, and a trend toward mutual indifference between Quebec and the rest of Canada.
The Provinces
The 1982 Constitution Act left the question of improving regional representation in and influence over Canadian federal institutions unresolved. Western Canadian provinces, led by Alberta, have sought an elected Senate on the Australian model, one that is elected, able to block legislation passed by the House of Commons, and that has equal representation from each province. Many outside Western Canada have resisted the “Triple-E” model, noting that the American and Australian Senates both contribute to deadlock in their systems. Others have noted that Western Canadian provincial governments have been half-hearted in seeking change to the Senate, favoring instead “province-building” that advances the electoral interests of politicians at the provincial level.
The Notwithstanding Clause
In April 1982, the First Ministers included Section 33 in the Charter as part of a compromise to make the Charter acceptable to several provincial governments. These governments opposed the idea of a charter of rights that permitted judicial review of provincial legislation, and agreed to a charter once they were granted the ability to override court decisions in limited areas. It draws upon the notion of parliamentary supremacy endemic to Westminster-type systems, and many considered it a democratic tool to use to protect the decisions of elected legislatures (for example, campaign finance restrictions) against absolutist interpretations of Charter rights (for example, financial contributions as free speech) by the courts. There was also a belief that the notwithstanding clause would exist as a last resort, or even as a symbolic but unused constitutional tool, similar to federal disallowance of provincial laws. Section 33 was not written to reflect that norm, and on paper allowed legislatures to override the Charter at will, and to do so preemptively. However, in the early years, the clause was used sparingly, and only by Quebec. Beginning in 2019, provincial governments changed the way they approached the notwithstanding clause, and began to use it more freely, and not in response to court decisions. The Legault government in Québec invoked the notwithstanding clause preemptively in Act 21, its secularism law that prohibited certain public employees from wearing religious symbols on the job, and Bill 96, Use of Section 33 also took on a partisan tone, as center-right, or even right-wing populist, provincial governments invoked it as a challenge to the federal Liberal government of Justin Trudeau.
Authoritarian Populism
The last element that this series of papers will consider is that the 1982 Constitution Act became an easy target for authoritarian populists who sought to exploit grievances against central institutions, the outsized role of Ontario and Quebec in Canadian federalism, and the recognition of specific minority groups in the Charter of Rights and Freedoms. There have been two waves of populism aimed at the Constitution Act. The first began in the 1980s, in opposition to recognizing dualism, as Quebec sought. The Reform Party, in its formative years, organized itself in opposition to the Meech Lake and Charlottetown accords, and broadly criticized the Canadian political system for the practice of elite accommodation, which it characterized as undemocratic. Populism returned for a second wave after Justin Trudeau’s election in 2015. While much of the populist reaction to Justin Trudeau has its roots in personal animus and the perceived “wokeness” of his Liberals, there are signs that ordered populists still resent the 1982 Constitution Act, viewing it as obstructing the pursuit of the general will. The Legault government in Quebec reasserted the political dominance of the francophone majority through Bill 21, its secularism law, and Bill 96. When it invoked the notwithstanding clause preemptively, citing au Québec, c’est comme ça qu’on vit in opposition to the Charter. The Ford government in Ontario invoked the notwithstanding clause on two separate occasions, claiming that the legislature is the arbiter of the public good. In Alberta, the Kenney government held a referendum rejecting 1982’s constitutionalization of equalization, and the Smith government passed the Alberta Sovereignty Act, which has undertones of the provincial legislature overriding count decisions.
References:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3641823
https://www.theguardian.com/world/2022/nov/20/notwithstanding-clause-canada-charter-rights
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/26/index.do
https://www.constitutionalstudies.ca/2019/07/bill-101/
https://digitalcommons.osgoode.yorku.ca/ohlj/vol30/iss3/1/
https://www.mqup.ca/trudeau-and-the-end-of-a-canadian-dream-products-9780773513006.php
https://publications.gc.ca/site/eng/9.699861/publication.html
https://www.peterlang.com/document/1067645
https://www.journaldemontreal.com/2019/04/02/au-quebec-cest-comme-ca-quon-vit