Has cooperative federalism become permissive federalism?

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The provinces have been pushing the federalism envelope in recent years, passing unilateral amendments to Canada’s Constitution and insisting they were merely amending their own provincial constitutions.

In 2022, Quebec enacted Bill 96, which added two new sections to the Constitution Act, 1867, using section 45 of the Constitution Act, 1982. The legislation said that “Quebeckers form a nation” and “French shall be the only official language of Quebec,” while declaring the oath to the king “does not apply” in the province.

In 2023, the Saskatchewan First Act asserted the province's exclusive legislative jurisdiction and autonomy over its natural resources and economy.

In 2022, Premier Danielle Smith’s government passed the Alberta Sovereignty Act, and recently held a referendum on whether to seek permission to join other provinces in forcing constitutional negotiations to gain greater powers from Ottawa.

For its part, the federal government has said almost nothing about any of this, other than some bromides about “cooperative federalism.”

Lawrence David, head of the Public Interest Litigation Institute and a professor at the University of Ottawa’s law school, says it appears that the provincial governments taking more assertive action see this as a way to fight back against federal intrusion into their provincial spheres of power.

“We see that in Alberta, we see that in Saskatchewan, we see that in Quebec as well. But in Quebec there is the added element of nationalism and separatism, which we now see in Alberta.”

Some provinces claim the Canadian constitutional framework has somehow frustrated their growth, even when this can be attributed to factors such as a decline in global oil prices.

“It’s ironic that at a time when Canada is under unprecedented threats from external actors seeking to shatter our unity, this has encouraged greater assertion of sovereignty by provinces who undermine the Canadian unity that we need right now,” David says.

A failure to defend the Constitution

There’s a sense that this has been allowed to continue by a permissive federal government that has refused to push back against these provincial moves. That lack of action has prompted David and his Institute to challenge the unilateral amendments in the courts. That effort has become much more urgent with a new Parti Québécois government in Quebec, which has relied on unilateral amendments to claim its members are exempt from swearing the oath of allegiance to the king to take their seats in the legislature.

David filed an injunction with the Quebec Superior Court to force members of the National Assembly to swear the oath. That’s in part to ensure there won’t be a situation when his full challenge of the constitutional amendments is heard, where bills passed in the legislature are deemed illegitimate because nobody was actually eligible to take their seats.

“The federal government has failed in its obligations to stand up to defend the Constitution of Canada and (ensure) that provinces in their spheres of jurisdiction do not exceed their powers,” he says.

In an ideal world, the federal attorney general would have taken steps to ensure that the Constitution is respected, including through a reference to the Supreme Court of Canada. David says given the federal government’s failure to do so, it is named as a party in the Institute’s court filing in Saskatchewan.

“When provinces enact legislation that purports to amend the Constitution unilaterally, Canada has an obligation to take steps and measures to ascertain whether the province is acting within its powers,” he says.

“Otherwise, we end up in a situation of permissiveness, and permissiveness only encourages further encroachment and excesses.”

In general, he questions the federal government’s litigation strategy. With Bill 21 in Quebec, the province invoked the notwithstanding clause to ban religious symbols on public servants. The federal government waited for civil society groups to challenge the law rather than immediately refer it to the Supreme Court of Canada. David says that same strategy has played out with the amendments, prompting him and the PILI to step in.

“Nip it in the bud, especially if it’s around the notwithstanding clause or constitutional amendments,” he says.

Feds complicit in vandalization

University of Waterloo political science professor Emmett Macfarlane says that the federal government’s reluctance to start a fight over these changes was exemplified by the Department of Justice’s decision to include Quebec and Saskatchewan’s unilateral amendments to the Constitution in its updates of the consolidation of the Constitution Acts, albeit with italics and notes that these are considered changes to the provincial constitution.

“That is just question-begging because the national constitutional text is not the same thing as the constitution of a province,” he says.

“The DOJ, and indeed the federal government itself, were basically complicit in vandalizing the Constitution, or at least enabling Quebec and later Saskatchewan to vandalize it without any objections.”

While it’s important to distinguish some of the Quebec government’s actions as part of its longstanding efforts to protect the province’s language and culture, Macfarlane says the federal government seems to have lost the ability to strike the kind of balance that the Chrétien government did, particularly in the aftermath of the 1995 referendum. That involved a dual-track approach: trying to accommodate and make federalism flexible, while facing a demand for more clarity and transparency about the limits of that willingness to accommodate.

The 1998 Reference re Secession of Quebec at the Supreme Court of Canada was an example of that — seeking clarity and willing to fight for a perspective that Quebec can’t just run roughshod over the rest of the Constitution.

“That seems to have been lost over the past five-to-ten years,” he says.

While the Quebec factor explains part of the federal government’s permissive approach, it was also unduly silent in the face of the Saskatchewan First Act and the Alberta Sovereignty Act, which Macfarlane says laid claim to a perverted understanding of what the provinces can do.

“The Alberta Sovereignty Act purports to allow the province to determine the constitutionality of federal legislation and then act on that basis. So whatever debates there were over the constitutionality of that, at the very least it was a gateway to unconstitutional action, and really a disruption of what federalism actually means.”

Beyond a federal state

Errol Mendes, a University of Ottawa law professor and chair of the Canadian Bar Association’s constitutional law section, says even the name of the Alberta legislation is a concerning development.

“When you start claiming sovereignty, you are going beyond saying you are part of a federal state. You’re starting to move in the direction of saying you have independence from the federal state.”

While the text of the act was tamer than what Smith initially proposed, the provincial government continued to push the envelope with its nine constitutional referendum questions. Mendes is concerned that the “yes” answers to the five immigration questions and the distinction between who are “real” Albertans will lead to a confrontation among the province, other jurisdictions that share the same anti-immigration sentiments, and the federal government. Even before the referendum in October, the province has begun to legislate new identification requirements for non-citizens, while the premier gunned for more control over immigration.

“There will be Charter challenges against the provisions, and it’s that part of Pandora’s box that will be triggered with Alberta saying they want to be like Quebec, and it’ll continue,” he says.

“If we start loosening our ability to, essentially for the long term, plan our demographics, we’re not a federal country anymore.”

As for the Saskatchewan First Act, David says it was a direct response to the Supreme Court of Canada’s reference decision regarding the Greenhouse Gas Pollution Pricing Act, where the province lost “spectacularly.”

“A lot of it is sour grapes,” he says.

While that may be the case, Macfarlane is concerned Alberta and Saskatchewan have decided they no longer have to enforce federal laws that they don’t want to. Instead of turning to the courts to adjudicate disputes over the division of powers, they’re writing laws to justify their decisions.

“I don’t see how our federal system can persist with that attitude,” he says, noting that as long as a government is operating within its jurisdiction, the laws of the land matter and need to be respected at all levels.

That holds whether it’s environmental regulation and criminal justice policies a province doesn’t like, equalization, or support for equity, diversity, and inclusion policies.

To date, these unilateral amendments have largely been symbolic, whether it’s Quebec declaring French as the province’s sole official language or Saskatchewan asserting control over natural resources.

However, the problem with the attitude that this is just symbolic is that it suggests the Constitution’s text and amending formula don’t matter, Macfarlane says.

“This is not just symbolic,” he says.

“This is about whether we adhere to the rule of law and basic principles about the Constitution itself. This is our higher law and who gets to write the higher law of the land is the most important type of rule of law question you can have in a democracy.”

We could end up in a situation where provinces want to insert any clause they want and call it the provincial constitution.

That would be an “utter mess,” and he says the longer the federal government acquiesces to this view, the more entrenched it becomes.