the Disallowance Power and Quebec‘s Bill 21: A Constitutional Tightrope Walk
quebec’s Bill 21, restricting religious symbols in the public sector, has ignited a national debate and raised complex constitutional questions. While the legal challenge currently before the Supreme Court of canada is central, a less-discussed but potentially explosive issue lurks in the background: the federal Disallowance Power. This power, dormant for decades, allows the federal government to veto provincial legislation, and its potential re-invocation could dramatically escalate tensions with Quebec and other provinces.
This article will delve into the constitutional intricacies surrounding Bill 21, the Disallowance Power, and the likely path forward, offering a seasoned perspective on this critical juncture in Canadian federalism.
The disallowance Power: A Relic of the Past?
Historically, the Disallowance Power, rooted in Section 90 of the Constitution Act, 1867, granted the federal government the authority to disallow provincial laws within one year of their passage. However, it hasn’t been used since 1943. This prolonged disuse has led many to believe it has fallen into “desuetude” – essentially, a constitutional convention has emerged that it’s no longer employed.
Invoking it now would be deeply problematic for several reasons:
* Provincial Backlash: It would inevitably provoke strong anger, notably in Quebec, Alberta, and Ontario, fueling separatist sentiments and deepening regional divides.
* Constitutional Convention: The long period of non-use has established a strong convention against its request.
Though, the issue isn’t as straightforward as it appears. Legal scholar James Ross Hurley argues that a constitutional convention requires worldwide consent. As no Prime Minister has explicitly declared the Disallowance Power obsolete, he contends it remains a valid constitutional tool.
The Supreme Court’s Perspective: The Judiciary as Umpire
This argument, though, clashes with the Supreme court of canada’s established view. In R.v. Beauregard (1986), the Court emphasized that the judiciary has become “the ultimate umpire of the federal system.”
This role demands complete independence from federal-provincial disputes. The Court asserted that it, not the federal government, holds the constitutional authority to determine the legality of provincial laws. Essentially, the Disallowance Power circumvents this established judicial role, potentially undermining the foundations of Canadian federalism.
Bill 21: A Legally Formidable Challenge
Quebec maintains that Bill 21 is legally sound, particularly due to the inclusion of Section 33 – the “notwithstanding clause” – which allows provinces to override certain Charter rights. This makes a successful legal challenge exceptionally arduous.
The only truly viable path to overturning Bill 21 would be a formal constitutional amendment removing Section 33 from the Charter. This is a monumental undertaking, given the complexities of “mega constitutional politics” in Canada and the need for broad provincial consensus.
The Supreme Court’s Likely Approach
While the Supreme Court case is ongoing, several scenarios are likely:
* Charter Breaches Beyond Section 33: The Court might identify infringements of Charter rights that cannot be overridden by Section 33.
* Minimizing Infringements: Following the precedent set in Ford v. Quebec (1988), the Court might encourage Quebec to minimize Charter infringements. In Ford v. Quebec, the Court suggested Quebec could achieve its language protection goals with less restrictive measures regarding commercial signage. This would involve a suggestion, not an order, for compromise.
* Unlikely Limits on Section 33: The federal government’s hope for the Court to limit the application of Section 33 is highly improbable.Such a ruling would dramatically escalate federal-provincial tensions and potentially trigger a constitutional crisis.
the Disallowance Power: A Risky Gambit
Given the legal hurdles and the potential for constitutional turmoil, invoking the Disallowance power would be a high-risk, low-reward strategy for the federal government. It would likely:
* Exacerbate Regionalism: Fuel separatist sentiments in Quebec and deepen divisions with other provinces.
* Undermine Judicial Authority: Challenge the Supreme Court’s role as the ultimate arbiter of the Constitution.
* Create a Constitutional Crisis: Trigger a protracted and damaging dispute over the division of powers.
Rather of resorting to this antiquated power, the