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Joanna Baron: Our fraying constitutional order

Commentary

In a recent podcast interview, my American host asked me to comment on whether Canada constituted a nation, in the substantive sense. Beyond platitudes such as a shared commitment to multiculturalism, general good government, and a thin conception of liberty, there is not much there there, I reflected. No, there isn’t really a singular Canadian nation, I answered.

But I was oversimplifying: the fact is that Canada is a nation that contains many nations. The compromises of federalism as set out in the Constitution were specifically designed to accommodate the vast regional and cultural differences across our equally vast land and, for the most part, have held up well.

However, proposals in Alberta and Quebec are starting to nip at the fabric of our constitutional order. Both provinces are, as one academic recently put it, apparently treating the Constitution as a “buffet that one can pick and choose from”, rather than a blueprint for how power flows in a state.

Let’s take the Quebec s. 96 French language law example: the Legault government’s bill declares French to be the province’s sole official language,An Act respecting French, the official and common language of Quebec http://m.assnat.qc.ca/en/travaux-parlementaires/projets-loi/projet-loi-96-42-1.html bluntly contradicting the Constitution Act’s promise of a bilingual Canada, not to mention the core synthesis and post-bellum political compromise of Confederation.

The bill makes no mere symbolic declaration. Nor does it limit its intrusions to public displays of language such as business and street signage, but purports to regulate private workplaces and conversations. The bill permits the Office québécoise de la langue française the power to enter any building other than a “dwelling house” where there are activities governed by the language law, or where documents or property related to it “may be held,” to get information. It’s a sweeping assault on civil liberties, insulated from judicial review by the notwithstanding clause.

Most brazen from the perspective of constitutionalists, though, is Bill 96’s article 159, which seeks to unilaterally amend section 90 of the Constitution Act, 1867CONSTITUTION ACT, 1867 https://laws-lois.justice.gc.ca/eng/const/page-1.html by inserting the following provisions:

90Q.1.  Quebecers form a nation.

90Q.2.  French shall be the only official language of Quebec. It is also the common language of the Quebec nation.

To be clear, a constitutional amendment cannot be unilateral, even if it applies to sections of the constitution that pertain specifically to one province, as the PM sheepishly suggested. The core raison d’être of a constitution is to create a mutually-binding aggregate of core principles, which if altered in part is altered for all consenting parties.

And then there’s the matter of the Alberta Sovereignty Act which United Conservative Party leadership candidate Danielle Smith recently announced she would introduce if elected Premier. The Act starts from the premise that the application of federal jurisdictional authority is an elective matter and that Alberta can simply opt out where the federal law “interfere[s] with provincial areas of jurisdiction or constitute an attack on the interests of Albertans.”

In other words, the Act would, by sheer political fiat, circumvent the constitutional division of powers into federal jurisdiction (s. 91) and provincial jurisdiction (s. 92), wherever “Alberta interests” were thought to dictate accordingly.

The proposal includes a made-in-Alberta police force, pension plan, scheme for unemployment insurance, and banking regulations.The Free Alberta Strategy https://www.freealbertastrategy.com/the_strategy These proposals range in effect from unlikely to make Albertans any more independent (the presence of the OPP in Ontario, for example, doesn’t render Ontario closer to a sovereign unit), to inviting a superfluous double-layer of bureaucracy: creating an Alberta unemployment insurance program will not eliminate the fact that employment insurance is a federal program, and employers who fail to remit to it will risk federal enforcement actions.

Of course, recognizing that regulations under the hypothetical Alberta Sovereignty Act would inevitably end up in court for judicial review, the proposal, most stridently, also provides for an Alberta Judicial Independence Act, which establishes judicial appointments for all provincial judges.

First, this is blatantly contradictory to the Constitution Act’s s. 96, which makes the Governor-General and federal government responsible for all judicial appointments. Second, if the objective of the proposal is to ensure that the bench is filled with judges who have a similarly novel view of enforceability of federal laws as the authors of the Sovereignty Act— i.e., that Alberta can simply refuse to enforce them— it’s not likely to succeed. I wonder if the drafters of this proposal have met any judges, as they are not generally known for their rank groupthink nor their flippancy about settled bedrock principles, in Alberta or anywhere else.

If these provincial would-be rebels are interested in actually rolling back federal incursions into their jurisdiction rather than playing political brinkmanship, there are other places they might look. Federal power has metastasized beyond the original intention of the constitutional division of powers, and there are serious arguments to be made that the provinces can properly carve out more room to maneuver than they currently enjoy under the guarantees of the Constitution Act.

The Supreme Court’s 2021 Reference re Greenhouse Gas Pollution Pricing Act saw a sweeping federal carbon tax program that clearly interfered with matters of provincial property and civil rights to be a valid exercise of federal power using a lot of what has been called “judicial ad hockery” under the broad Peace, Order, and Good Government (POGG) power.

The Court may soon have opportunity to clarify the scope of POGG. Recently the Alberta Court of Appeal, in assessing the constitutionality of the federal Impact Assessment Act, also known as the “No More Pipelines” bill, made clear that “environment” is not a valid federal power, as the GGPA Reference seemed to imply. It concluded the Impact Assessment Act would “permanently alter the division of powers and forever place provincial governments in an economic chokehold controlled by the federal government.” The case is headed to the Supreme Court.

And in Quebec, the Attorney-General is challenging the constitutionality of an act governing Indigenous child services in which the federal government directed the provincial bureaucracy and executive on how to implement “national standards” within their own programs, effectively coercing the provinces into operationalizing a federal law. That case is also being heard at the Supreme Court this fall.

No doubt the twin phenomena of an overbearing federal government hovering over traditional provincial spheres of jurisdiction and defiant provincial governments declaring themselves exempt from the Constitution feed parasitically upon one another. The answer to restoring balance must be to return to the clarity and balance of the Constitution, rather than force a constitutional crisis for flagrantly political ends.

Karen Restoule: Committing to a more collaborative and ambitious Canada on National Indigenous Peoples Day

Commentary

After learning in greater detail about the experiences of Indigenous children who were forcibly removed from their families and placed in residential schools, and the impacts on them and their families, Canadians have spent the last year revisiting their own thoughts and feelings about this country’s true history and their individual role in advancing reconciliation.Today we reflect on the dark realities that lead to reconciliation https://thehub.ca/2021-09-30/karen-restoule-today-we-reflect-on-the-dark-realities-that-lead-to-reconciliation/ Many people have been left with mixed emotions and a greater motivation to challenge their own long-held beliefs about Indigenous peoples and Canada, as a whole. As a result, there has been hesitation in deciding how to engage with key annual celebrations like National Indigenous Peoples Day and Canada Day. How do we celebrate the positive points of our relationship and reconcile the darker shades of our shared history? 

Today, as we recognize National Indigenous Peoples Day, June 21, let’s go beyond celebrating the unique heritage and diverse cultures of Indigenous peoples. Let’s challenge our assumptions and commit to learning about the unique and outstanding contributions of Indigenous peoples in forming the strong foundational fabric of our country and be inspired by the principles of the original Indigenous-European relationships.

There is a commonly held stereotype that Indigenous peoples have always lived in small, secluded communities, never leaving their patch of land for anything. This couldn’t be further from fact. Prior to Indigenous-European contact, Indigenous peoples throughout these lands had expansive and established trade networks that gave way to the movement of goods and the people who moved them. 

As Indigenous leader Manny Jules recounted to a crowd in 2008 in his role as Chief Commissioner of the First Nations Tax Commission: “There used to be millions of us. Although there were no population counts, best estimates suggest that there were at least 40 million of us in the Western Hemisphere in 1491. […] Market economies are not foreign to us. We created them ourselves. We traded goods over hundreds of miles. How could corn be used all throughout the Americas before contact, if we did not trade? How could pipestone end up in our territory before contact when it only comes from Pipestone, Minnesota, if we did not trade?”First Nations Trade, Specialization, and Market Institutions: A Historical Survey of First Nation Market Culture https://ir.lib.uwo.ca/cgi/viewcontent.cgi?article=1372&context=aprci

Following contact, Indigenous Nations continued to have strong trade relations with European explorers as migration progressed. Research reveals that First Nations held all of the elements that are linked to a successful market culture in the periods prior to and immediately following contact, including specializations ranging from furs to wheat, iron to tobacco, and others. 

Extensive trade networks continued to grow throughout the 16th century and over the course of the next 200-plus years as European colonies continued to expand into the New World. The French and the English formed alliances with Indigenous Nations in an effort to secure commercial interests, and these groups pushed through conflict and war. 

Leading legal scholar John Borrows notes in his 2005 article, “Indigenous Legal Traditions in Canada”,Indigenous Legal Traditions in Canada https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1380&context=law_journal_law_policy that diplomacy was also factored into these trade relationships, whereby the legal customs, traditions, and cultural protocols of Indigenous Nations were observed and respected by European explorers and colonies. In the early 1700s, the French entered into Treaties with the Anishinabek of the Great Lakes by using Anishinabek forms, wampum belts, and ceremonies. European fur traders are said to have conducted commercial transactions in accordance with Indigenous traditions as well, by the giving of gifts, the extension of credit, and the standards of trade based on Indigenous legal principles. Marriages between Indigenous women and European men were conducted according to Indigenous legal traditions. The traces left behind by these interactions over hundreds of years following first contact continue to influence Canada’s fabric today, through symbols, historical celebrations, trade routes, harvesting traditions, traditional clothing apparel, and otherwise.

There was a fundamental shift in the mid-1700s when Britain, through the Treaty of Paris of 1763, ended 150-plus years of war.First Nations in Canada https://www.rcaanc-cirnac.gc.ca/eng/1307460755710/1536862806124 This was quickly followed up by the issuance of the Royal Proclamation of 1763 which, among other points in relation to France and Spain, helped Britain to achieve certainty and stability with Indigenous Nations. It laid out specific protocols for all dealings with Indigenous Nations, making the Crown the primary point of contact between Indigenous Nations and all colonies. While the Royal Proclamation of 1763 aimed to control the western expansion of the colonies, it made clear the parameters on land and trade: only the Crown could purchase land from Indigenous Nations and no settlement or trade could be completed without the permission of the Indian Department. 

The impacts of this legal instrument went beyond ending a war and establishing a fiduciary relationship, it extinguished a rich, mutually respectful, and mutually beneficial relationship that could have built off the early successes and led to a foundation for a different kind of country—a stronger, more collaborative, and more prosperous Canada. 

Today, as we celebrate National Indigenous Peoples Day, and prepare for Canada Day celebrations next week, let’s consider the power of acknowledging the ugly and shiny parts of our shared history. Let’s be inspired by the successes of the original relationship between Indigenous peoples and Europeans that governed these lands for more than 200 years. Let’s commit to a better future, a Canada that is shaped by our foundational relationship of co-existence, collaboration, ambition, competitiveness, and great innovation.