As of this week we will have not one but two provincial governments in this country formally committed to act in defiance of the Constitution, legitimate federal authority and the rule of law.
François Legault’s Coalition Avenir Québec government in Quebec is the first. Returned to power with an increased majority after a campaign filled with appalling attacks on immigrants, Mr. Legault will be looking to build on the signature policies of his first four years – Bill 21, imposing an effective hiring bar on observant members of religious minorities across much of the public sector, and Bill 96, which broadly outlaws the use of English in either the public or the private sector.
Both laws implicitly acknowledged what was obvious to all, their contempt for constitutionally protected minority language and equality rights, by pre-emptively invoking the notwithstanding clause. But no such fig-leaf of constitutionality can be applied to Bill 96′s other provisions, which presume, inter alia, to extend to federally regulated corporations, and to unilaterally amend the Constitution of Canada to invest Quebec with the status of a (unilingually French) nation. The first ignores important sections of the Constitution; the second scribbles over it in crayon.
Still, Mr. Legault is the soul of legality compared with what we may expect from Danielle Smith as leader of the United Conservative Party and premier of Alberta. Where Mr. Legault at least pretended to rewrite the Constitution, Ms. Smith would openly repudiate it; where Mr. Legault’s government took the trouble to preserve its bills from the Charter’s reach by means of the notwithstanding clause – itself a part of the Charter – Ms. Smith’s would excuse itself altogether from federal authority, on the strength of nothing more than its own legislative say-so.
We have yet to see the precise wording of that bill, the preposterous Alberta Sovereignty Act, but as advertised it would pretend to empower the province to ignore any federal law it chose – after a “free vote” of the legislature, speaking of fig-leafs – and to defy any federal court ruling that went against it. Companion legislation would assert the right to replace all federally appointed judges with provincial appointees, to expel the RCMP in favour of a provincial police force, and to collect the tax from the province’s businesses and public employees that they now send to the feds.
It’s nonsense, of course: utterly, vapidly unconstitutional. So is Bill 96. And so both will be found in good time by the Supreme Court of Canada. But whereas the Legault government would probably yield before an inclement Supreme Court ruling – even the Parti Québécois accepted the court’s jurisdiction in the secession reference – the Smith government would more or less be bound to defy a court finding that the Alberta Sovereignty Act was ultra vires the Constitution: The whole premise of the law, after all, is to free the province from such constraints.
So we are headed for major constitutional conflict, on both fronts. If I say the Legault government has given no indication it would not accept a Supreme Court ruling invalidating Bill 21 or 96, that is mostly because it thinks it will not come to that: that Justin Trudeau, rather than risk confrontation with the popular Mr. Legault, will bow to the Premier’s demands, as other prime ministers have bowed to those of premiers before him. After all, hasn’t the Trudeau government made haste to do by its own hand, via Bill C-13, what Bill 96 would do by provincial fiat: subject federally-regulated corporations to Quebec’s language laws?
But of course it will not end there: it never does. Mr. Legault has more demands up his sleeve: for full control of immigration, for example, or for more money for health care with even fewer strings attached. The immigration file is particularly fraught: The Legault government aims to reduce immigration to the province, even as immigration to Canada has soared. Over time, that promises to further reduce Quebec’s already dwindling share of the population, and with it the province’s influence. No problem: Mr. Legault has a solution. Quebec must be guaranteed its current share of the seats in the House of Commons, in perpetuity – as befits its status as a “nation.”
Is anybody ready for this? Are the feds? The most the Trudeau government has said is that it might intervene before the Supreme Court, should a challenge to either Quebec law get that far. No doubt it hopes the court will spare it the trouble of taking on Mr. Legault directly – a strategy it likely hopes to duplicate with regard to the Smith government. But it’s far from clear that either conflict can be contained to the courtroom: not with both provinces challenging the constitutional order at the same time, and not with the high emotions each is likely to arouse.
Of course, the coincidence of the two also presents an opportunity for a federal government that was bold enough to seize it: Were it to take action against both at the same time, neither of the two crybabies of Confederation could claim to have been singled out for harsh treatment. But to do anything of that kind would require not only great nerve, but an immense reservoir of democratic legitimacy – far more than the federal government now possesses.
I am not talking about the Trudeau government’s current low standing in the polls – though that is certainly a factor; neither am I suggesting it seek a stronger mandate via a snap election – though that may well be what it comes down to. I am talking about the legitimacy of the federal government itself, of any federal government – or “Ottawa,” as it is so often, and contemptuously, called.
That epithet speaks volumes. We have allowed the powers of Parliament, and of the members of Parliament, to wither to such an extent – as we have allowed the government, over the years, to remove itself from any serious accountability to Parliament – that much of the population no longer sees the federal government as their government, but as somebody else’s: as “Ottawa,” that far-off place they send their MPs to, never to be heard from again. In any contest for popular legitimacy with a determined provincial government, the feds are at a pronounced disadvantage.
Democratic reform, then – reform of Parliament, reform of elections, reform of how political parties organize themselves – can no longer be regarded as a nice idea, a make-work program for academics and activists. It is an urgent practical necessity. Our existence as a country may depend upon it.