Wednesday, January 05, 2022

Does disallowance -- disallowance! --have a future as well as a history?

The most provocative historical essay I saw over the Christmas period was a column by Andrew Coyne in the Globe and Mail in which -- bear with me here -- he called for the return of disallowance to Canadian political life.

I admit, I had to get over the "Disallowance? Are you kidding me!" reaction to start appreciating the argument.  

The essay starts with Quebec's anti-hijab Bill 21.  Coyne posits, first, that patriation and the Charter in 1982 imbedded a new rights guarantee for all Canadians that would limit the freedom of action of provincial governments. The notwithstanding clause provided an emergency clause for provinces against overzealous application of the new rights guarantee. Second, from 1867, the federal power to disallow provincial legislation had been an analogous kind of emergency clause, giving the federal government its own emergency brake against provincial actions that curbed minority rights.  

Therefore, he goes on, if provinces are now beginnning to use notwithstanding not as an emergency brake, but as a backdoor abolition of the whole Charter and its rights guarantees (a valid fear, not only with the Legault government, but in Ontario and possibly soon the west as well), then the feds should bring back the older emergency brake: federal disallowance of provincial legislation that offends against rights principles. (All this, presumably, setting up a kind of mutual deterrence: we won't disallow if you won't notwithstand, and vice versa.)  You might read the whole Coyne column for a full elaboration of the argument.

It won't work as a matter of law, I've come to conclude. When bits of the constitutional text disagree with each other, the Supreme Court tends to adopt an "architectural" approach:  things that are essential to the constitutional architecture must prevail over things that are not.  (E.g., there's a section called s.101 that free trade zealots sometimes point to as reason to pretty much veto all business regulation by provinces, but the Supremes tend to find s. 91 and 92, which set out the division of powers that is the basis of federalism, must prevail.) Disallowance by the federal government (though text for it survives in the constitution) is so anthetical to the federalism principles of the constitution that it seems very unlikely that the Court would tolerate its revival. Notwithstanding, on the other hand, seems very much part of the architecture of the Charter -- there's no evident "architectural" argument for overruling it.

In any case, the historical basis of the disallowance/notwithstanding analogy is not as good as it may at first seems. Coyne quotes John A. Macdonald (okay, and George Brown too) as evidence that disallowance was understood as a means to protect minorities from oppression. But in his forty years on the hustings, Macdonald said a great many things that should not be taken as canonical constitution interpretation. Historically, disallowance was used more against things that were (or were said to be) ultra vires -- beyond provincial powers -- than to protect minority rights, and clearly courts were better than the feds at giving dispassionate verdicts on what was or was not within provincial powers. Disallowance's real threat was not to anti-rights legislation, but to federalism and the provincial powers. A great deal of anti-rights legislation by provinces was never disallowed, even when disallowance flourished, because the feds often appreciated its political popularity of bigotry as much as the provincial governments did. 

Disallowance, though it existed in the 1867 constitutional text (and endures in the 1982 one as well) was exposed as a tool for placing provincial governments under federal supervision. It was antithetical to the federalism principle at the heart of confederation, so it had to go and it can't come back. That's not the situation with notwithstanding.

In the end, (ab)use of the notwithstanding clause to exempt provincial governments from rights considerations will have to die as disallowance did, politically.  Bill 21 does not take rights from Muslims and Sikhs alone, it takes rights from all Quebeckers. Already two Quebec political parties, representing about 40% of the Quebec population, have taken positions against it. That argument can be won.  

The argument to bring back disallowance?  It's not a winner, either constitutionally or politically -- and shouldn't be. 

P.S. I'm not a big fan or follower of Twitter. But I do follow Coyne when I look at Twitter, and lately I have been astonished at the amount of hysterical, vituperative abuse he seems to endure there, mostly but not only from anti-vaxxers. He seems to take it in good humour -- indeed I see them because he retweets them with lighthearted responses.  But boy, it ain't easy being a public commentator trying to make reasoned arguments (even ones I might not agree with) these days.   


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