A constitutional revolution in the making?

CBA National spoke with Benoît Pelletier in an Ottawa café to take stock of what’s been happening with the Canadian constitution over the past year. The former Quebec Minister of Justice and Intergovernmental Affairs had a lot to say on the topic, as well as on what lies ahead for the Canadian constitution and its interpretation by the courts.

It seems that a “legal revolution” might well be in the cards.

The year of the notwithstanding clause

The notwithstanding clause was very popular in Canada in 2023. This doesn’t surprise Pelletier, despite his disagreement with the reasons why it was invoked.

“I don’t always agree with the use of the notwithstanding clause,” he said. “But then, I don’t always agree with court decisions either.”

This year, the governments of New Brunswick and Saskatchewan were kept busy with issues of gender identity.

In New Brunswick, changes to Policy 713 triggered a political crisis in the Blaine Higgs government. Under the announced changes, school staff can no longer use the preferred names and pronouns of trans and non‑binary students under the age of 16 without parental consent. The premier was upfront about his intention to invoke the notwithstanding clause if needed.

In Saskatchewan, Scott Moe’s government used the notwithstanding clause to pass a bill implementing a similar policy.

When the Canadian Charter was adopted, one theory posited that a government would pay a “political price” to use the clause. According to Pelletier, this is not necessarily true.

“In many cases […] it turns out that government is more popular for having used it than not. The ‘political price’ theory is not always borne out,” he said.

Paradoxically, support for the Canadian Charter of Rights and Freedoms continues to achieve consensus throughout the country. “Support is so broad that it might be the only political issue endorsed by both Québec solidaire voters and supporters of Alberta’s United Conservative Party,” wrote researchers Charles Breton and Andrew Parkin in French in Le Devoir in 2022.

Pelletier agrees. “There’s absolutely no erosion of support for the Charter. […] People are saying how attached they are to it. That’s what surveys show,” he said.

Tense atmosphere?

Despite appearances, Pelletier says that the relationships between the provinces and the federal government are generally good.

“Surprisingly good,” he added.

This is despite the fact that environmental issues caused significant friction between the two levels of government in 2023. After a challenge against the carbon tax was rejected in 2022, Alberta zeroed in on the Impact Assessment Act. This time, it was the federal government’s turn to be shot down by the Supreme Court.

Pelletier is satisfied with the latter decision. “The provinces can also legislate on environmental issues. They have jurisdiction that should not be overlooked. […] If the federal government is sent packing by the courts, that means it’s gone too far,” he said.

Pelletier used the example of the Trudeau government’s carbon tax to show how freely the federal government can act on the environment within its area of responsibility.

“Not only was the federal government able to invoke its environmental jurisdiction [and] the national scope of the fight against climate change, but it was also able to invoke its taxing powers,” he said. “Federal jurisdiction is very clearly established.”

Pelletier makes no secret of the fact that he wants the provinces to remain independent within Confederation at all costs. For him, Alberta’s recent sovereignty act is nothing more than the province reiterating an existing truth. The same is true for The Saskatchewan First Act.

“It is important to understand that sovereignty is a Canadian constitutional principle. The provinces are sovereign in their areas of responsibility. There’s nothing revolutionary here. It’s important to  understand that sovereignty is a constitutional principle. [Their] goal is to block excessive federal incursion into areas of provincial responsibility,” he said. “The idea of recentralizing the Canadian federal structure makes me nervous.”

The former minister found it an opportune moment to share what seemed to be a vivid memory: the federal-provincial constitutional conferences in the 1970s and 1980s. “Those conferences really got things going!” he said with a smile.

“They put a lot of pressure on the federal government,” he added, noting their disappearance from the Canadian political landscape with regret.

Revolution on the horizon

Pelletier expects nothing less than a “legal revolution” in Canada’s future. He pointed to two main trends: the emerging sovereignty of Indigenous communities and a Supreme Court that is slowly but surely starting to examine the concept of co-operative federalism.

“There will be a legal revolution. For example, questions will be asked about Indigenous self-government and how it can be reconciled with Canadian sovereignty,” he suggested.

Pelletier believes that “the principle of the comprehensive distribution of powers [in the Canadian constitution] has been taken for granted. If they have an inherent right to self-government, and if this inherent right ultimately gives them legislative powers, we won’t be able to say that the distribution of powers between the federal and provincial governments is comprehensive.”

As for the issue of co-operative federalism, Pelletier raised the example of countries that have a “federal loyalty charter” that determines the governmental behaviour sought within the federation. Researcher Stéphanie Flizot defined the concept as a principle that requires the “constitutional commitment of a loyal cooperation between all members of the Federation,” citing the example of Germany. 
As Pelletier explained, “For federalism to be applied—we know that federalism is a culture, an overall atmosphere—there are charters like Germany’s, which tell governments how to behave in order to respect the spirit of the federation.”

Canada does not currently have such a charter, but that does not prevent the Supreme Court from taking a stance inspired by the loyalty charter approach in order to protect democracy.

“[Although] the Supreme Court talks a lot about co-operative federalism, it’s not giving the concept any teeth. It’s turning the concept into a politically advisable principle but not a legally coercive principle. I wouldn’t be surprised if the Supreme Court adds content to this concept in the coming years and turns it into a principle of judicial intervention.”

Pelletier closed our Q&A with what he sees as a crucial point: the delegation of legislative power to the executive in the Canadian system. “In some cases,” he lamented, “the delegation of power from Parliament to the executive is so substantial that it ends up stifling public debate.”

“It’s entirely possible that one day, the Court will rule that too broad a delegation of power goes against the principle of democracy,” he concluded.