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Kristopher Kinsinger: You don’t have to be a conservative to care about upholding the Constitution

Commentary

Constitutionalism remains among the most unexplored of Canada’s core constitutional principles. Though identified as such in the 1998 Secession Reference, the Supreme Court of Canada has said relatively little about the actual substance of this principle, apart from noting that constitutionalism “requires that all government action comply with the Constitution.”

Thankfully, a movement is stirring among Canadian jurists to rigorously understand and faithfully apply the principle of constitutionalism. For instance, Justice Malcolm Rowe of the Supreme Court delivered a timely defence of the role that constitutionalism plays in a free and democratic society in a keynote address at the close of the Runnymede Society’s recent Law & Freedom conference, an excerpt from which was exclusively republished by The Hub.

Not everyone, however, seems to appreciate the importance or content of this principle. Columnist Andrew Coyne, responding to Justice Rowe’s lecture, conflates concern “that ‘unelected judges’ are undoing the work of elected parliamentarians” with conservative ideology.  But his reply misapprehends the essence of constitutionalism. Coyne describes the Runnymede Society as “a conservative legal group” because its members are ecumenically committed to this principle. It’s an imperfect label, at best. 

There are certainly similarities between constitutionalism and conservatism. Indeed, many conservatives are naturally inclined to adopt a constitutionalist outlook. Both conservatism and constitutionalism tend to be defined by a non-utopian realism. For conservatives, this means adopting laws and policies that respond to the world as it is. For constitutionalists, this means faithfully upholding our constitutional settlement as we find it, rather than as we might wish it had been framed. 

Yet it would be a mistake to conclude that because a lawyer or law student identifies as a constitutionalist that they must also necessarily identify as a conservative—even while it’s conversely difficult to see how conservatives could reject the tenets of constitutionalism. It is no secret that conservatives are an important and sizable constituency within the Runnymede Society, which seeks to create a forum where important issues relating to constitutionalism and the rule of law can be openly discussed. But conservatives do not exclusively make up our society’s membership, which also consists of classical liberals, libertarians, and heterodox leftists dissatisfied with the general lack of intellectual diversity within the Canadian legal academy and profession. 

An argument can thus be made that constitutionalism is not an ideology, per se, but rather a general outlook and disposition that can be oriented toward different ideological ends, depending on the context. Constitutionalism is governed by two core dispositional commitments. First, to broadly supporting the tenets of one’s respective constitutional settlement. And second, to ensuring that this settlement is faithfully upheld, specifically by ensuring that the legal instruments which attest to this constitutional reality are rigorously and objectively interpreted. 

In Canada, two corresponding objections to constitutionalism have arisen in recent years. The first is perhaps the most obvious, which is to simply reject the Canadian Constitution outright as an “instrument of repression,” as Justice Rowe put it in his lecture. If nothing else, this objection has the benefit of being more intellectually transparent, since it seeks to discredit Canada’s constitutional settlement on a foundational level: to put it bluntly, if you declare at the outset that the Canadian Constitution is itself a bad thing, you’re far less likely to be concerned with whether it’s faithfully interpreted and applied. 

The second objection to constitutionalism is stealthier since it’s rarely framed as an objection. While purporting to uphold Canada’s constitutional settlement, it sees the Constitution as a screen onto which policy preferences are subjectively projected, rather than a legal instrument from which objective meaning is derived. Proponents of this view are largely disinterested in the constitutionalist’s regard for faithful legal interpretation. While quick to describe the Constitution as a “living tree capable of growth and expansion,” they often neglect to include the latter half of this now-famous quote from the Privy Council’s 1929 ruling in Edwards v Canada, that such growth and expansion occurs “within its natural limits.”

Justice Malcolm Rowe, right, stands before his colleagues of the Supreme Court as he is welcomed during a ceremony at the Supreme Court, in Ottawa, Friday, December 2, 2016. Fred Chartrand/The Canadian Press.

Such was the dissenting opinion in the Supreme Court’s 2021 ruling in Toronto v Ontario, which suggested that courts may invalidate laws for violating the Constitution’s “basic constitutional structure”, even when they’re not actually offside “any express constitutional provision.” A majority of the justices in that decision (including Justice Rowe) instead ruled that, “[I]t is inconceivable that legislation which is repugnant to our ‘basic constitutional structure’ would not infringe the Constitution itself,” precisely because “[t]he structure of our Constitution is identified by way of its actual provisions, recorded in its text.”

To be sure, none of this means (as Coyne implies) that constitutionalists are inherently opposed to the idea of judicial authority—so long as this authority is exercised within the boundaries set by the Constitution itself. On this point, Coyne is correct insofar as he notes that judicial review of legislation is not an innovation that arose with the adoption of the Canadian Charter of Rights and Freedoms in 1982. Since Confederation, Canadian courts have possessed a sovereign authority to invalidate laws that contravene the provisions of the Constitution. 

Likewise, this is not to suggest that constitutionalists never diverge in their understanding of the Constitution’s content, nor that they might not change aspects of their constitutional settlement if given the chance. What unites all constitutionalists is their commitment to reform within the boundaries set by the Constitution itself, rather than by looking to courts to assume an authority they do not rightly possess, when their preferred legislative reforms fail. In other words, ours is ultimately a settlement not of legislative or judicial supremacy, but of constitutional supremacy. Falsely conflating constitutionalism with conservatism undermines this reality.

Joanna Baron: The battles between the provinces and the federal government are just heating up

Commentary

Last week, the Supreme Court of Canada released a major decision, AG Canada v. AG Quebec, which found that the federal government’s exclusive jurisdiction over “Indians and lands reserved for the Indians” allows it to set national standards for Indigenous child welfare services that are binding on the provinces, even though the provinces have jurisdiction over child and family services through their constitutionally-guaranteed powers over “property and civil rights in the province” and “generally all Matters of a merely local or private Nature in the Province.” 

The decision was a pragmatic compromise that stopped short of directly answering broader questions of whether and when the federal government can direct the provinces to implement federal laws. But the issue is bound to return to the Court in the coming years, particularly with initiatives in Alberta and Saskatchewan to carve out greater autonomy from the federal government.

Bill C-92, An Act Respecting First Nations, Inuit, and Métis Children, Youth, and Families, was a response to the commitments Canada bound itself to when it adopted the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP), which broadly calls for autonomy and self-determination for Indigenous Peoples, and calls for reconciliation between the Crown and First Nations, the Inuit, and Métis. It provides a framework for Indigenous Peoples to oversee their child welfare programs and explicitly declares itself to carry precedence over provincial laws.

Quebec referred the question of the Act’s constitutionality to the courts because despite supporting greater autonomy for Indigenous Peoples, it took issue with the federal government’s decision to direct the provinces about how to deliver child protection services where Indigenous children are involved and its declaration that Indigenous laws—even those not yet enacted—could be given the force of federal laws and made paramount over provincial laws. That would seem to represent a deviation from the division of powers between provincial and federal spheres of authority guaranteed in the Constitution, as well as from the general principles of mutual agreement and cooperation between two sovereign and co-equal levels of government. 

The Canadian Constitution Foundation intervened to help preserve the principle that provinces cannot be compelled to administer federal laws or programs, which could be the next big frontier in the federalism wars. The court appears to have preserved that principle—at least for now.

The decision was deliberated upon for a lengthy 14 months and was authored by the Court rather than individual judges, both signals of extensive inter-chambers negotiations and a drive to arrive at consensus. The decision found that the federal law directing the provinces in this particular case was constitutional because the purpose of the law was squarely within federal jurisdiction and the impacts on the provincial public service were “incidental” or relatively minor. 

We can expect the federal government to continue attempting to coerce the provinces into implementing federal laws under their power of legislating national standards.

This issue is bubbling up in provincial legislatures across the country, and will surely land in the courts again soon. When it comes to questions of how far the federal government can go in directing provinces to implement its laws, the elephant in the room is the Alberta Sovereignty Within a United Canada Act. The Act, tabled by Alberta premier Danielle Smith when she formed government in 2022, features a declaration that Alberta would decline to implement federal laws or programs that, in its view, unjustifiably impeded provincial jurisdiction or prejudiced the interests of Alberta.

Prime Minister Justin Trudeau meets with Canada’s premiers in Ottawa on Tuesday, Feb. 7, 2023, in Ottawa. Sean Kilpatrick/The Canadian Press.

Smith gave teeth to this declaration last November when she announced that Alberta would elect not to implement the federal government’s Clean Electricity Regulations, still in draft form, and instead would pursue its own clean-energy initiatives. Smith would seem to be on strong footing to do so, since s. 92(c) guarantees to the provinces control over the “development, conservation and management of sites and facilities in the province for the generation and production of electrical energy.”

This Act’s constitutionality has been the subject of controversy within the legal community. It has been pointed out in support of the Act’s constitutionality that the Supreme Court, while permitting inter-administrative delegation, has consistently emphasized that this delegation occurs on the basis of mutual consent and cooperation with the provinces. Alberta would decline to implement federal laws without disputing their constitutionality but instead require the federal government to implement its law on its own, with its own funds, instead of relying on the provinces to carry out its policies as it normally does.

This view of provincial autonomy within the federation isn’t just gaining traction in Alberta. Saskatchewan has acted similarly in its regulation of firearms, pushing back against the federal regulation of guns by requiring any federal agent that proposes to confiscate a gun in the province to be licensed by the Chief Firearms Officer of Saskatchewan, to provide fair compensation for seized weapons, and give the province wide scope in prosecuting non-violent firearms offences.

The Supreme Court’s ruling last week preserved the principle that provinces can’t be required to implement federal laws— but that won’t prevent a future government lawyer from trying to argue that the decision gives cover for Ottawa to attempt to ram through future laws and dispute the constitutionality of the Sovereignty Act or Saskatchewan’s firearms legislation. The courts ought to reject this. A robust federal structure allows for the provinces to act as laboratories of innovation and pursue different policy priorities in response to the vastly different economic and social conditions throughout the country.