Howard Anglin: Liberals push for constitutional change, notwithstanding national unity

The question that has been dogging me since I read the federal government’s submission to the Supreme Court last week, which asked the Court to restrict the ability of governments to use the Charter’s notwithstanding clause, is: Why? Why would Mark Carney, who has flaunted his nationalist credentials and talked up the need for us to pull together as a country, risk provoking a national unity crisis?

By asking the Supreme Court to rewrite the Charter to give judges even more power to override democratic decision-making, Carney has staked out the most aggressive possible position on the issue, going much further than Justin Trudeau ever did. If the Court accepts the federal argument, it would overturn the longstanding constitutional status quo and directly challenge the positions of the Alberta, Ontario, and Québec governments.

What makes Carney’s move so strange is that it is unnecessary. The current precedent dates back to 1988 and is working just fine. There was no pressure on Carney to do this. Pierre Trudeau’s decision to enact a new constitution without Quebec’s agreement planted a ticking time bomb under the new Constitution. The notwithstanding clause is one of the ways in which we have mitigated this threat.^{1This was the original purpose of the notwithstanding clause and why both NDP and Conservative provincial governments insisted on its inclusion when we enacted a new Constitution in 1982.} Why would Carney suddenly decide to prod the unexploded ordnance?

I have two theories, but before I get to them, I will warn you that they are probably wrong. When I worked in government, I was invariably bemused by outsiders’ attempts to understand the government’s internal motivations and surprised at how far off their guesses were. It is also likely that the decision was overdetermined, with different motives explaining why different factions within the government conspired to open the Pandora’s box of national unity.

My first theory is that some of Carney’s advisors want this constitutional fight. They know that the underlying law in this case, Quebec’s Bill-21, which limits religious freedom, is deeply unpopular outside Quebec. They may also think they can smear as bigoted and intolerant Alberta’s intent to use the notwithstanding clause to defend provincial laws protecting children from radical transgender activists.

As Trump’s power as a political bogeyman declines, a fight over the notwithstanding clause would allow Carney to continue to play Captain Canada. The Liberals likely relish the opportunity to brand themselves as the Charter Party (conveniently ignoring the fact that the notwithstanding clause is not just part of the Charter but its sine qua non). Given the Charter’s popularity, this may be a savvy move—unless, that is, the government is seen as picking an unnecessary fight and inviting a constitutional crisis.

My other theory is that there is a faction of Liberals who still resent that they had to agree to the notwithstanding clause to get NDP and Conservative premiers to sign on to the new Constitution in 1982. They have been biding their time, seething impotently in unread law journals, and now they see a chance to get from the Court the deal they couldn’t win at the constitutional bargaining table, national unity be d-mned. If so, it is a reckless gambit. It’s the kind of ideological obsessiveness I expect from a columnist who sees the death of democracy everywhere but in his own backyard, not from elected officials wielding real power.^{2I don’t mean to be too hard on Andrew Coyne. A country needs traditions, and there are few more consistent traditions than Andrew being stubbornly wrong on matters of constitutional law. It’s as reassuringly Canadian as maple syrup or dying on a surgical wait list.}

As I said, these are just guesses. Perhaps attributing cynical motives gives the government too much credit. Maybe they just blundered into this awkward position and don’t know how to back out gracefully. Sean Fraser’s insipid response under fire this week would support this constitutional cock-up theory. If so, it’s bizarre that no one flagged the risks to the prime minister: if the Court agrees with the government, it will detonate a constitutional crisis the likes of which we haven’t seen since the end of the Mulroney government.

So, what happens if the Supreme Court agrees with the federal government and, for the first time, imposes legal or practical limits on the use of the notwithstanding clause? The best outcome is that it stirs enough provinces to push for a quick constitutional amendment to reverse the Court’s decision.^{3And ideally expand the clause’s scope to cover more of the Charter, eliminate the renewal requirement, and reverse the recent Power decision. The Québec government might be interested in estimating the potential Charter damages in this case.} The alternatives range from a third Québec referendum to an ungovernable country in which courts obstruct effective criminal laws, immigration policy, and laws protecting language and culture, and governments have to ignore court decisions just to keep the peace.

Of course, the Supreme Court can avoid these potential problems by just doing its job. If the Court simply affirms its own precedent and upholds the constitutional settlement that all the political players assumed they had struck in 1982, we can banish Carney’s constitutional theories back to the law journals they crawled out of and get on with the many real problems facing our country.