The return of the constitutional crisis

Hey there, time traveller!
This article was published 01/06/2023 (895 days ago), so information in it may no longer be current.

THERE were times anchoring late-night news in Prince George, B.C., that I swear I began every broadcast with: “Constitutional talks continue today in Ottawa.”

From the mid-1980s until the early 1990s, this country was mired in discussions about federalism, jurisdiction over natural resources, Indigenous governance, Senate reform and bringing Quebec into the constitutional fold.

With the UCP win in Alberta earlier this week, Canada may once again be headed for constitutional crisis. It couldn’t have come at a worse time.

Alberta passed its controversial Sovereignty Act at the end of December 2022. Saskatchewan passed its Saskatchewan First Act in March this year. Both these acts purport to uphold provincial rights over any perceived federal overreach, particularly as it relates to natural resources. While Saskatchewan’s is a much milder version, the idea is that both provinces have the right to defend their own interests.

Earlier, in June 2022, the Quebec government also passed an act that defended its own interests, by implementing Bill 96, known as An Act Respecting French, the Official and Common Language of Quebec. This act amended the Constitution to declare that Quebecers constitute a nation, and that French is the common — and only — language of the province. Prime Minister Justin Trudeau told the CBC that Quebec, effectively, has the right to modify a part of the Constitution. By amending the Constitution using provincial legislation, the situation is ripe for constitutional remapping.

Let’s be clear. Most legal scholars agree that these acts will survive a legal challenge. But Alberta Premier Danielle Smith, Saskatchewan Premier Scott Moe and Quebec Premier François Legault are not shy about pushing their agenda with Ottawa.

This follows three years of policies that underscore the failure of federalism. Canada’s decentralized system demonstrated its deficiencies as the pandemic took hold across the country. A lack of a coherent communication strategy, testing systems, vaccination rollouts and lockdown procedures resulted in a confusion, anger and ultimately distrust as the number of deaths climbed. In other words, provinces acting out of their own best interests didn’t act for the collective good.

Canada had the worst record for COVID-19 deaths in long-term care homes compared with other wealthy countries. The blame, of course, fell at the feet of the provinces, but the federal government was targeted for a lack of adequate funding. The federal government was caught flat-footed in terms of understanding where and how the pandemic raged because the provinces did not keep or share uniform epidemiological data. Provinces themselves did not have reliable data to help target specific vulnerable populations and because of that, there were higher death rates amongst Canada’s disabled and BIPOC communities.

Yet, when the federal government tied increased health-care funding to the need for the provinces to improve their health-care data sharing, both Moe and Smith vowed to fight against a “digital ID.” This opened up a rabbit hole of conspiracy theories that once again made Ottawa the “bad guy” out to steal private information. Nothing could be further from the truth.

Portraying Ottawa as the bad guy was a ploy Smith and Moe (along with Manitoba Premier Heather Stefanson) used again earlier this year when Justice Minister David Lametti addressed the Assembly of First Nations Special Chiefs Assembly, meeting in Ottawa.

Up for discussion was an action plan to align Canadian laws with the United Nations Declaration on the Rights of Indigenous Peoples. Lametti was asked about the Natural Resources Transfer Agreement, a series of agreements negotiated in the 1930s that transferred control over natural resources from the federal government to the provinces. First Nations land was excluded from those agreements. Lametti said that he would look into the issue.

Moe, Smith and Stefanson immediately demanded a retraction, saying: “It should not even be considering stripping resource rights away from the three prairie provinces.” Lametti clarified that the federal government had not promised to reopen the agreements. Once again, an overblown reaction to play to a base.

Canadian political scientist Lisa Young from the University of Calgary suggests that Smith and her strategists (and, I would argue, Moe to a much lesser degree) are fixated by Quebec and will use all the techniques that Quebec has used to their advantage. This now may include using the constitutional opting-out that Legault has strategically initiated, and most certainly portraying Ottawa as the interloper, which Quebec has done consistently since the Quiet Revolution.

How far this will be pushed now that the UCP and Smith have won their new mandate remains to be seen. But with the federal government attempting to reset after three years of pandemic chaos, this will not be doing anyone any favours.

Shannon Sampert is a communications consultant, freelance editor for Policy Options and former politics and perspectives editor at the Free Press. She teaches part time at the University of Manitoba.

shannon@mediadiva.ca