“Power of Disallowance” A Diversion to Detract from Need to Replace the Constitutional Order
– Pauline Easton –
While the people of Ontario, joined by workers from across the country, took to the streets to denounce the Keeping Students in Class Act, 2022 passed by the Ford government, which invokes the notwithstanding clause, some well-known commentators and high-ranking people called for evoking the powers of the Crown, saying they could be used to overturn the law.
Talk about federal intervention began with Minister of Justice Lametti telling reporters on November 2 that the notwithstanding clause “was meant to be a last word for a legislature to exercise parliamentary sovereignty. If it’s used at the beginning, it guts Canadian democracy, it means the Charter doesn’t exist.”
In other words, the notwithstanding clause should only be used by a legislature to negate rights the Charter purports to enshrine once the courts have declared the impugned law violates the Charter. This is what the Ford Government did when the Ontario Court struck down its “third-party” spending regulations as a violation of the right to freedom of speech.
When asked what the Liberals might do, Lametti said, “There are a number of different things … but I’m not going to discuss my options.”
Justin Trudeau then told reporters on November 4 that his government is one that “stands up for people’s rights and freedoms and we are absolutely looking at all different options.” As he spoke, he condescendingly ignored the fact that thousands upon thousands of education workers and their supporters were assembled on the streets of Ontario to defy the Ford government’s anti-social, anti-worker law. Trudeau said: “It would be much better if instead of the federal government having to weigh in and say, ‘You really shouldn’t do this, provincial governments,’ it should be Canadians saying, ‘Hold on a minute. You’re suspending my right to collective bargaining? You’re suspending fundamental rights and freedoms that are afforded to us in the Charter?'”
This from a federal power all too happy to pass anti-worker legislation when it so decides. But what is significant is the police power both Lametti and Trudeau are evoking: the power of the Crown called “disallowance.” Disallowance is the decision by a representative of the Crown to veto an enactment of a parliament or a provincial legislature, and the enactment ceases to operate as law.
NDP Leader Jagmeet Singh called on the Liberals to use the power of disallowance, while also calling for a Supreme Court “reference case” on the validity of Ford’s use of the notwithstanding clause.
Political analyst and commentator Andrew Coyne wrote in the National Post on November 2 about the increasing use of the notwithstanding clause by provincial governments outside of what he says was its intention:
“If the 1982 bargain is now off — if we are back to the days before the Charter — if minority and individual rights are once again at the mercy of provincial governments, then it falls to the federal government to resume its former role as their guarantor, at least until the notwithstanding tiger can be returned to its cage.
“That the disallowance power has not been used in some time does not mean, as some allege, that it has become void. For such a convention to exist the federal government itself would have had to formally renounce it. No federal government has done that.
“No doubt its revival would cause a flap, and certainly it should be considered a last resort. But the alternative is simply to stand by while the Charter dissolves in front of our eyes. Surely the Prime Minister, of all people, will not wish to preside over the dismantling of his father’s proudest legacy.
“The nuclear option? The notwithstanding clause was supposed to be the nuclear option. Only the bombs are going off with such regularity now we barely notice them. It’s time for a little constitutional deterrence.”
“Disallowance”
The fundamental issue before us is whether we as Canadians and Quebeckers, Indigenous peoples, Métis and Inuit, are going to base ourselves on the fight of the people of this country for the affirmation of the rights of all and a regime and institutions that put that at the centre of our concerns, or we are going to rely on anachronistic colonial institutions, set in place to uphold the colonial power and regime whose main goal is to keep the people subjugated to a sovereign whose decision-making power is not in our hands.
A review of the “power of disallowance” actually makes the case for the need to convoke a constituent assembly and draft a modern constitution. Such a constitution, written by the people themselves, will have as its first act to vest sovereignty in the people, not a fictitious person of state with police powers to declare what the people need and do not need and decide things behind the backs of everyone, sometimes even those in the inner circles of power.
The Centre for Constitutional Studies explains:
“‘Reservation’ and ‘Disallowance’ are often confused, since both derive from the practices of the British colonial empire, but they are actually distinct terms. Historically, ‘reservation’ was the practice whereby a colonial governor, rather than giving or refusing assent to a bill, could refer it to the imperial government for the final decision. ‘Disallowance,’ on the other hand, was the practice whereby a colonial bill could still be declared null and void by the imperial government, even though the colonial governor had given royal assent.
“Sections 55, 56 and 57 of the Constitution Act, 1867 provided that acts of the Parliament of Canada were subject to these instruments of imperial control. A few such acts were reserved or disallowed in the first few decades after Confederation, but the powers passed into disuse as Canada evolved towards independence, even though they were never formally eliminated.
“Section 90 of the Constitution Act, 1867, which adapted the same practices to the purpose of maintaining federal control over the provinces, proved to be of much greater significance. Early Lieutenant-Governors frequently reserved bills for a final decision by the federal government. Although the practice was controversial, and soon became unnecessary as communications improved between Ottawa and the provincial capitals, a Saskatchewan bill was unexpectedly reserved as late as 1961.
“Disallowance, from the federal viewpoint, was a much more reliable instrument of control over the provinces. It was used extensively by the Macdonald, Mackenzie and Laurier governments, particularly against Manitoba and British Columbia, and thus became a source of western discontent with the federal system. After 1911 its use was rare, but the election of the Social Credit government in Alberta in 1935 led to a brief revival. The last Act ever disallowed was a 1943 Alberta statute which prohibited the sale of land to ‘enemy aliens’ or Hutterites.
“The Victoria Charter of 1971 would have eliminated ‘reservation and disallowance’ from Canada’s Constitution, but the extensive changes made to the Constitution in 1982 left both powers intact. Either might still be used to prevent the illegal or unilateral secession of a province, but otherwise their future use is extremely unlikely.”
The Heart of the Matter
What lies at the heart of the matter of the appeal of some for the Crown to use the power of “disallowance” to overturn the Keeping Students in Class Act, 2022 is the need to fight for the claims everyone is entitled to make on society within the context of fighting for a society that affirms the rights of all. Essentially what is unfolding before our eyes is a fight within the ruling class to control what has escaped their control because of unfolding events. The arrangements perfected over the years in the form of liberal democratic institutions have been destroyed because of the drive of the global neo-liberal economic order and striving for hegemony on the part of the big powers with the U.S. emerging as the so-called indispensable nation. All of that has not sorted out the contradictions between the narrow private interests that have formed oligopolies and international cartels and coalitions to seize the state powers of countries that they control.
To now call on the federal executive power to trump an executive power at the provincial level is the formula for a civil war within the ranks of the rulers. We see precisely this taking place in the United States where the federal power and the states’ powers are clashing on every matter facing the polity while they both vie to control the federal executive power.
The power of disallowance essentially uses a superior power of the Crown to nullify another power of the Crown. It is the blatant expression of an overruler. It will not be well received by the peoples of Canada, Quebec or by the provinces, let alone the Indigenous peoples, Métis and Inuit.
Will such powers now overrule hereditary rights when it suits the narrow private interests and the holders of federal office, as is the case with the use of the notwithstanding clause when it suits the holders of office in Ontario and Quebec? This is already taking place with the federal and provincial governments makings deals with band councils under their control or private Indigenous corporations for consent to steal resources on Indigenous territories. Deals are being imposed on those who have never ceded title to their lands. The use of the powers of the Crown will increasingly be used to supersede treaty rights. Will the powers of the Crown now also be used to force the Inuit to accept turning their homeland over to NATO?
The peoples of Canada and Quebec, the Indigenous peoples, Métis and Inuit are under tremendous pressure to be what is called pragmatic as if this is a virtue. To be pragmatic is made synonymous with being practical, realistic, a problem-solver when, in fact, it is to be opportunistic and self-serving in the name of high ideals. All of it is used to disinform the struggle for what belongs to the peoples and workers by right. The people can only be united behind a cause if it is just and accords with their conditions and if they can provide rational, persuasive arguments that help them to fine tune their forward march and to open a path that will guarantee their well-being.
The idea for the federal government to use the “power of disallowance” serves to get the people to rely on the very state that is waging the anti-social offensive and attacking them to save them. The fight against the Ontario Keeping Students in Class Act, 2022 was a political fight against an act of the Legislature that had taken negotiations for wages and working conditions outside the bounds of labour law. It is up to the working people themselves to unite in action and force the government to recognize their right to speak, organize and negotiate their wages and working conditions.
It is also obvious that floating the idea of convoking the “power of disallowance” is to maintain the existing constitutional arrangements that are in fact the problem. Those arrangements can no longer keep the people subjugated to a power that exists above them and deprives them of the ability to exercise everything that belongs to them by right. The power-sharing arrangements contained in Canada’s Constitutions of 1867 and 1982 can also no longer sort out the fights between federal and provincial powers and the peoples of Canada, Quebec, the Indigenous peoples, Métis and Inuit, or the factional fighting within the ruling class that has seized the state powers at the federal and provincial levels.
The arrangements whereby governments at the federal and provincial levels can violate rights in a constitutionally guaranteed manner were never acceptable to the people, who have always fought to have the limitations on their rights removed.
Today, under the pretext of upholding national security and the national interest against enemies as described by the ruling circles and their media, governments of police powers are taking over and deliberations on matters pertaining to war and peace are forbidden. These arrangements are the “constitutional order” called “the King’s democracy” to which elected and appointed officials swear oaths of allegiance to uphold and defend.
(From Renewal Update)