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Geoff Sigalet: No housing plan is effective without the provinces


Over the coming days, The Hub will publish mandate letters for the incoming cabinet ministers that set out a series of bold policy prescriptions that would cumulatively tilt Canadian politics towards a different and better future.

The best antidote to anger and frustration is aspiration and purpose. The campaign has demonstrated how urgently Canada’s body politic needs such a remedy. There’s no time to waste. It’s time to get to work.

Dear Minister of Intergovernmental Affairs,

I am honoured that you have agreed to serve Canadians as the Minister of Intergovernmental Affairs.

As you know, Her Majesty’s government faces many challenges that will require co-ordination, trust, and respect between federal and provincial authorities. We cannot manage the COVID-19 health crisis, encourage economic recovery, nor tackle issues such as unaffordable housing, threats to the environment, divisions in national unity, and reconciliation with indigenous Canadians, unless we co-ordinate federal and provincial policies. To that end, we must build trust with the provinces and territories and respect the Constitution’s division of powers.

We must also remember that the 2021 election once again revealed the stark challenges facing Canada’s national unity and reconciliation with indigenous Canadians. The Western provinces have once again voted overwhelmingly for the Conservative Party as an expression of their frustrations with the way the federal government has treated Western interests. Quebecers have elected numerous separatists to Parliament in a renewed demonstration of concerns about their unfair treatment in our confederation. And new discoveries about the past injustices on Canada’s Indian Residential Schools have underlined the need for redoubling our efforts to achieve reconciliation with indigenous Canadians.

  • Co-ordinate healthcare policy with the provincial governments to ensure the health and safety of Canadians, and to do so with special concern for fighting back against the COVID-19 pandemic. You must accomplish this with upmost respect for the provinces’ exclusive rights to legislate on the management of hospitals and municipal institutions.
  • You will also need to proactively respond to provincial needs. For example, Alberta’s Minister of Municipal Affairs has written to the federal Minister of Public Safety to request assistance in increasing aero-evacuation capacity and augmenting Alberta Health Services staff. COVID-19 has hit Alberta hard, and as Minister of Intergovernmental affairs I ask that you work with the Minister of Public Safety, the Minister of Health, and provincial counterparts to establish a COVID-19 emergency response committee for assisting provinces that find themselves in Alberta’s situation. The committee will help foster clear lines of communication between the federal government, provinces in crisis, and those with more manageable hospitalization numbers, and will also develop measures for what kinds of resources will likely be required in different scenarios. We must learn from the COVID-19 crisis as it develops and enters new phases.
  • COVID-19 has exacerbated the economic challenges facing Canadians, especially the middle class. A swift recovery requires that our economic policies must be enacted in partnership with provincial governments. You must work with the Minister of Finance and the provinces to find ways of incentivizing and supporting Canadian workers across the country. This work will involve encouraging free trade between the provinces by inviting the first ministers to renegotiate the Canadian Free Trade Agreement and encouraging the removal of more barriers to inter-provincial trade in exchange for significant reforms to transfer payments and tax swaps (e.g. the elimination of the GST).
  • In the 2021 election it became clear that Canadians of almost every political party supported reforms addressing the increasing unaffordability of housing. No housing policy plan will be effective at making houses more affordable without the involvement of provincial governments. One of your key tasks as Minister will be to meet with the premiers to negotiate standardizing provincial taxes on foreign buyers of residential property in tandem with new exemptions for out-of-province Canadian home buyers. The new tax regimes should be agreed to alongside federal commitments to encourage the construction of residential housing.
  • It is also important to work with the provinces in designing policies that will help Canada protect its environment, which requires meeting its commitments at the Paris Agreement. That means reducing greenhouse gas emissions. In the References Re. Greenhouse Gas Pollution Act, the Supreme Court upheld the constitutionality of federal legislation imposing a pricing backstop on greenhouse gas emissions in the provinces. But the decision also highlighted just how narrow the federal government’s jurisdiction is under the “Peace, Order, and Good Government” clause of the Constitution Act, 1867. As minister, you must work with the provinces to ensure that the regulatory backstop is not applied arbitrarily in ways that devolve into the kind of punitive taxation that the Supreme Court suggested would be unconstitutional.
  • But there is much more to protecting the environment than climate change. Other threats to the environment will require you to work with the provinces for constitutionally respectful solutions. For example, Pacific salmon and steelhead stocks have declined in many areas. Provincial and federal policy must be co-ordinated to ensure that salmon and steelhead stocks are protected. This will require you to better co-ordinate policy with the Department of Fisheries and Oceans and British Columbia’s Ministry of Forests, Lands, and Resource Management. Funding for the federal Pacific Salmon Initiative and efforts should be increased in tandem with increased provincial involvement and the project’s mandate should be extended to protecting wild steelhead stocks. Wild Pacific salmon and steelhead populations must not be allowed to collapse the way that Atlantic cod populations did in 1993.
  • To resolve Western alienation, you must organize a constitutional convention to negotiate with the provinces to amend section 36 of the Constitution Act, 1982 to make Canada’s equalization payments scheme more equitable, and to clarify how the division of powers relates to environmental matters. As part of these negotiations, you must also seek to have the other provinces agree to constitutionally recognize Quebec’s status as a nation and the primacy of the French language in that province. Together, these bold constitutional amendments promise to unite our country. And a meeting of the first ministers offers an exciting chance for the representatives of indigenous Canadians to make their own constitutional concerns heard.
  • Finally, as a gesture of good faith to the provinces, and in the interest of ensuring that federal policymaking respects the constitutional division of powers, you must work with the Minister of Justice to develop a “Federalism Statements” program akin to the current “Charter Statements” measure. The Department of Justice Act currently requires that every government bill is accompanied by a “Charter Statement” from the Minister of Justice explaining the effects of the proposed bill on the Charter of Rights and Freedoms. The Act should be amended to require a joint “Federalism Statement” from your Ministry and the Ministry of Justice attesting to the effects of government bills on the division of powers.

I know I can count on you to fulfill these responsibilities and help to deliver a different and better future rooted in prosperity and opportunity for all Canadians.

Howard Anglin: Today’s Supreme Court ruling is vindication for Doug Ford


Like light from a far-off star bringing us images of the distant past, today’s Supreme Court of Canada decision takes us back to a more innocent time, when what passed for political controversy was a decision to reduce Toronto’s bloated city council from 47 to 25 members just as a city council election kicked off.

Ah, those prelapsarian summer days of 2018! Which of us wouldn’t happily return?

The real controversy, you will recall, the thing that elevated the matter from a routine provincial political controversy into a national talking point, was Ford’s willingness to use section 33 of the Charter of Rights and Freedoms to re-enact the law after it was initially struck down by the Ontario Superior Court. This, predictably, sent all the usual suspects into an ignorant tizzy.

It is one of the more curious aspects of Canadian politics that so many Laurentian luminaries, and Liberals in particular, who are supposed to be the party of the Charter, are so easily triggered by the invocation of section 33. Section 33, is after, all part of the Charter and it preserves at least a residue of the centuries-old democratic powers of our legislatures, including those powers essential to the the principle of Responsible Government.

I am honestly perplexed by this quintessentially American zeal for judicial supremacy within a group of people that is typically reserves the label “American-style” for its ultimate pejorative.

If it were a popular phenomenon, I would blame our abysmal record of civic education, but surely section 33’s high-profile opponents, which include many law professors and former elected officials, know that most of the countries who share our political system — not the U.K, not Australia, and not New Zealand — allow judges to strike down democratically enacted laws in the first place. Section 33 just preserves some of the legislative powers still enjoyed in full by our peer countries.

I am forced to conclude that the allergy to section 33 is part of a latent anti-democratic streak within Canadian liberalism that surfaces whenever a politician or party that is outside the Laurentian consensus has the temerity to win an election. It is part of the assumption by the Rosedale-Outremont axis that “we know best” combined with the sense that the sort of people who get appointed judges are part of that “we” in a way that a grubby provincial legislature may not be.

Ignorance or arrogance, it is a strangely persistent phenomenon that was on full display in 2018 when Doug Ford invoked section 33 to overcome a, shall we say, “novel” interpretation of the Charter by Judge Belobaba of the Ontario Superior Court to strike down the Better Local Government Act, 2018.

There may have been political reasons to oppose the Act, but in this case the judge’s rushed decision ignored two inescapable facts: municipalities, including the megacity of Toronto, are creatures of provincial law; and the political rights in section 3 of the Charter that the judge invoked to strike down the Act do not apply to municipal elections.

The court’s ruling was so constitutionally unorthodox that it’s hard to avoid the conclusion that, faced with the problem that the text of the Charter did not provide a reason to strike down the law, the judge simply decided to rewrite the relevant (or, rather, irrelevant) provisions.

As I wrote at the time: “This impression was reinforced by a smattering of injudicious asides, like his description of the government’s failure to respond to a relatively minor question as ‘Crickets’, and the snide observation that Bill 5 had been drafted ‘more out of pique than principle’ – a charge that could be applied equally to the judge’s opinion.”

When Ford proceeded to use section 33 to allow the Act to proceed over Judge Belobaba’s creative objections, the reaction of the commentariat was furious. But instead of directing their ire at the court that had warped and abused the Charter, these self-styled defenders of the Charter attacked the government that had twice exercised its clear constitutional powers: first in the original Act and then by invoking Section 33.

These fair-weather Charter champions continued to grumble even after the Ontario Court of Appeal overturned the obviously incorrect lower court decision, which obviated the province’s need to rely on section 33. Now, three years later, Ford’s government has been vindicated again as the Supreme Court of Canada has upheld the Ontario Court of Appeal’s decision.

The Court reaffirmed that section 3 does not apply to municipal elections (which is clear from the text) and that the rights contained in section 3 can’t be smuggled into section 2, which protects a completely different set of rights. For good measure, it also explained that unwritten principles of the constitution like “the principle of democracy,” which judges may divine lurking below the actual text cannot be used to invalidate laws.

This is as it always should have been.

Finally, the Supreme Court’s decision should put to rest the two misunderstandings that turned a piece of routine provincial law into a three-year legal odyssey. First, in light of today’s decision, there are limits to judicial creativity when it manipulates the text or relies on “unwritten principles” of the Charter to overturn democratically-enacted laws; second, the need for section 33 will remain strong for as long as courts don’t learn the first lesson.