Political Calculations and the Section 90 Disallowance Power

 Summary so far:

It is my contention that the federal party leaders of Canada (Trudeau, O'Toole, and Singh) ought to make a declaration that the federal power of disallowing provincial laws (found in section 90 of the Constitution Act, 1867) will be used regarding any provincial law enacted (or re-enacted) by a provincial legislature invoking the notwithstanding clause of the Charter of Rights and Freedoms (section 33 of the Constitution Act, 1982). I say this in the context of a teacher being fired, further to Quebec's Bill 21, for wearing a hijab in a Quebec classroom. Bill 21 is able to do this without any real threat of judicial review on Charter of Rights and Freedoms basis because of the use of section 33. It is my firm view, that Bill 21 and all legislation in Canada must be able to withstand Charter scrutiny. 

And I say again, that any provincial government can argue in court that its infringement on constitutional rights can be validated further to section 1 of the charter as "justified in a free and democratic society." I do not say that any rights are absolute. What I do say is that section 33 allows a provincial government to, in effect, target a particular minority, which is exactly what Bill 21 has done. I will never accept that as a legitimate constitutional use of legislative power in Canada. Hence my recommendation to use the sledge-hammer of section 90 disallowance power where the notwithstanding clause is used by a provincial legislature. 

I am satisfied that I have demonstrated that this option is not only principled and non-partisan, but would be a valid, legal, and constitutional action. I understand that it would be extremely controversial and I think that most people object to it on that basis. In my view, Canada could benefit from more controversy arising from a politically risky action to protect minority rights. 

POLITICAL CALCULATION 

As noted above, if use of s. 90 is not really a legal issue, then it is a political issue. So the question becomes, what is the political calculation that the various political leaders ought to take into account when considering it? I provide below the actual advice that I would give each of the three leaders, if asked.  

My advice is based on one assumption: the Bloc will, for the foreseeable future, be a significant presence in federal electoral politics in Canada, feeding and benefiting from Quebec nationalism. 

ADVICE TO TRUDEAU

If, as I sense, you are primarily interested in you and the Liberal Party continuing to stay in office, you will need something like the 35 seats in Quebec that you have now (Dec 2021). If you take action against Bill 21, there will be a backlash in Quebec and that could quite possibly reduce the number of Liberal MPs elected in Quebec in the next election, so conventional political advice would be to do what you are doing now about Bill 21, which is nothing. You will look weak, but what else is new? You can live with being weak. That is, after all, the core of your "sunny ways" appeal to the Canadian electorate and it is working so far. So stick with it. 

If you are interested in the long-term future of Canada as a healthy constitutional democracy, then you should take action. If not the s 90 disallowance idea, then something equally bold. There would be a god-awful fuss, and it might well hurt you electorally in Quebec, but it might benefit you electorally outside Quebec. As with many things in politics, it would be a gamble, but a gamble for a truly noble purpose. 

And what is power for? Doing nothing? 

ADVICE TO O'TOOLE

You need to abandon the hope that soft nationalists in Quebec will rally to the Conservative cause if only the party treads softly enough on provincial rights issues. This hope has led you, like the Liberals, to look weak, and only serves the long-term interests of the Bloc. Canada needs a Conservative Party that is really an option as a government-in-waiting, not simply the comfortable pew for the rural, hard-core conservative base. You need, therefore, to take some really decisive action to lead the Conservative Party out of the shadows and into the bold center of Canadian politics.  Having the Conservative Party act firmly to, in effect, protect the Muslim minority in Quebec would reset the dial in Canadian electoral politics. 

Just as for the Liberals, this would be a political risk for the Conservative Party. The short-term results are impossible to predict. In the long-term, such an action, at least in my view, would benefit the country and the Conservative Party. 

ADVICE TO SINGH

Who is running the party, you or over-paid consultants dreaming of the (unlikely) return of the Orange Wave? My advice: apologize for your failure to stand against Bill 21 in the recent election campaign and pledge to support the use of section 90 to disallow discriminatory provincial laws in the future. 

People understand sincerity. Will this gain you votes? Maybe, maybe not. But it will give you back your self-respect. One would have thought that would be the most important thing.