By Evan Hutchison
Senior Research Associate, Public Policy Research Initiative
The 1992 Charlottetown Accord famously proposed to recognize Quebec as a distinct society, reform the Senate, and constitutionally entrench the Supreme Court of Canada. Among its other, less prominent, provisions was curtailing the federal power of disallowance. Disallowance has not been employed since 1943 (Hogg 120), so its reputation is not proportionate to the power it theoretically affords the federal government unilaterally to revoke any provincial statute within two years of its enactment. Its dilution was far from the most controversial of the Accord’s objectives, but would by no means have been insignificant. The Accord failed, so disallowance remains, at least nominally, available to the federal government, which has continued to abstain from its use. The ascendancy of the federal principle has historically restrained the exercise of disallowance (Vipond 127), but in light of an earlier, successful, amendment of the Constitution in 1984, and particularly, of the Charter of Rights and Freedoms, and its ramifications for federalism, disallowance can now be repurposed as an instrument for the defense of minority rights. In fact, this new use for disallowance closely resembles that for which it was originally devised (128).
The text of the operative section of the Constitution (S. 56) instates no limits to its use, but Robert C. Vipond finds that at least some of the authors of Confederation intended disallowance as an instrument for the protection of civil and minority rights. In this connection, John A. MacDonald averred “we shall… be able to protect the minority by having a powerful central government.” Early in his tenure as Prime Minister, Macdonald indicated that propriety would confine the disallowance of provincial legislation to occasions when legislation was entirely or partly unconstitutional, in conflict with federal legislation in areas of concurring jurisdiction such as agriculture, or deleterious to the interests of the entire Dominion. In short, the Federal government’s veto was intended for the resolution of jurisdictional disputes. The third, most porous criterion for disallowance was still jurisdictional, in the sense that the distribution of legislative power is predicated on the federal government’s custody of the Dominion’s general interests. Signally the conditions Macdonald enumerated omitted the veto’s posited use for the defense of minority rights, so long as provincial incursions were intra vires. The federal government was incapable of adhering to its own rules, however; Macdonald’s habitual recourse to the pretense of national interests for disallowance eventually alerted the government and civil society, of Ontario particularly, to the susceptibility to multiplication of the jurisdictional considerations authorizing disallowance, and consequently, to abuse of the veto. Vigorous advocacy on the part of the provinces, and the revision of the reference procedure for the Supreme Court ultimately reassigned jurisdiction to the purview of the courts, which were generally regarded as more neutral arbiter of disputes among the provincial and federal governments than one of the parties could be. This development eliminated the only politically sanctioned use of disallowance, and the veto subsided in to obscurity (Vipond, 128-47).
The introduction of the Charter of Rights and Freedoms in 1982 has also apparently supplied an effectual, judicial alternative to the mostly hypothetical use of disallowance to secure human rights and on behalf of minorities. The Charter, however, also confers an important prerogative on the provincial and federal legislatures that deliberately dilutes its own guarantee of human rights. Section 33 of the Charter, the notwithstanding clause, can be used to inoculate legislation passed by the provincial or federal governments against many of the human rights provisions of the Charter. Invoking Section 33 will be sufficiently controversial that most governments are cautious of so doing, but it has, and presumably will again be used, effectively to abrogate the rights the Charter purports to sustain. The relevant question is whether this compromise is merely an expedient designed to placate provinces jealous of their sovereignty, at the expense of the principle of the Charter, or has some merit apart from its emollient properties. There is considerable evidence for the former view; the deference of all levels of government to the decisions of the courts in most instances suggests at least their consciousness that the public regards the maintenance of personal freedoms and the government’s freedom to legislate as of commensurable importance. It is difficult to discern any other principle the omission of the clause would frustrate, except that the population of a province should be permitted to enact whatever discriminatory statutes it likes, as long as it wants them strenuously. This position is not tenable, in the first instance because most Canadians would concur that the erosion of certain of the freedoms, the abridgment of which Section 33 might accomplish, (freedom of thought, belief, opinion and expression, for instance) is intolerable, regardless of its popularity (although this argument is apparently contradictory, it should be remembered that two different majorities are at issue, provincial and national, respectively). In any event an analogy to the jurisdictional issues with which disallowance was originally occupied affords a useful insight. Consider that, were a provincial legislature to make a law that was extra vires in the estimation of the courts, no degree of consensus in its electorate would suffice, by revising the distribution of powers, to make the law intra vires; there is no cause to conceive of the area reserved for personal freedoms as in principle different from the areas of legislative competence reserved for the two levels of government respectively. In effect, the Charter has extended the federal principle to include the rights of individuals under its aegis, and so the notwithstanding clause by giving provincial parliaments the power to invade the rights of individuals, rather than enhancing Canadian federalism, actually derogates from it.
Of course the preceding would be irrelevant absent an amendment – practically unattainable – of the Charter abolishing the notwithstanding clause, if not for disallowance, a power that extends to legislation immunized to judicial review by Section 33. While the courts are better qualified to ascertain whether a law interferes excessively with freedoms or the rights of minorities, such laws will only have to be disallowed if they have been passed notwithstanding the Charter, as provincial parliaments are likely to do only if the courts have already found the same law to contravene the Charter, and thus of no force and effect. Even if the notwithstanding clause has been used preemptively, as was the practice of the PQ from 1982-1987, it will be possible to solicit the courts’ perspective by using a reference, so that the expertise of the judiciary will always be available to inform the government’s exercise of the veto. Furthermore, this criterion for disallowance should be less capable of distortion than those postulated by John A. Macdonald, and the veto less prone to abuses, because the federal government will not both participate in and preside over these disputes, as it did when its own jurisdiction was the subject of contention, and because of the residual suspicion incurred in the first federal experiment with disallowance, deference to which should encourage circumspection in the veto’s revival. Were the government to resume abusing it, the public protests that would occasion could easily consign the power to dereliction again. The only remaining question is whether, even if disallowance could be exercised judiciously and beneficially, any federal government is likely to run the political risks its use would entail. There are two pertinent answers to this question: the first is that what is significant in this connection is not the propensity of the federal government to commit to a potentially impolitic defense of human rights, considered in abstract, but its inclination to do so relative to that of a provincial government. As long as the federal government, which will have at minimum a comparatively diverse constituency with disparate preferences, can be expected to be even marginally more solicitous of human rights, generally, than a provincial government with a smaller, less diverse electorate, which is consequently more vulnerable to pressure from pernicious interests and control by homogenous majorities, the availability of a veto on the matter will be salutary. The second answer is that the best and most rapid way to reinstate the confidence of the public in disallowance, and thereby reduce its political repercussions is to reduce its novelty; inertia resists most political innovations, even if they may be benign.
Works Cited
Hogg, Peter W. Constitutional Law of Canada. 4th ed. Scarborough: Carswell, 1997.
Vipond, Robert C. “Alternative Pasts: Legal Liberalism and the Demise of the Disallowance Power.” University of New Brunswick Law Journal 39 (1990): 126-158.
