Donald J. Trump has become a major historical figure, towering over the first quarter-century of the third millennium of this uncommon era. He is the disruptor of the American republic, of the world economy and of the basic conventions of international relations among democracies.

Historical comparisons are made to the decline and fall of the Roman Empire. The Emperor Nero was said to fiddle while his capital burned to make way for his new palace. Trump prefers golf, but like Nero is obsessed with real estate and gold. In Washington now as in Rome then, a subservient Senate failed to act as the realm was threatened.

Written constitutions are the tip of the iceberg

Formal constitutional texts are the tip of the iceberg, making comparative constitutional law a tricky business. Constitutional law is a collective belief system. What makes a living and breathing constitution is largely unwritten. The key is the political culture in which a constitution plays a sometimes central, sometimes diminishing role. A constitution is an expression of national identity, which is never fixed. It reflects a particular social contract; if the terms of that contract change extensively and the constitution does not keep pace, it may be left behind, formally by being replaced in whole or in part, or informally by being paid what amounts to lip service.

In Rome, the ancient constitutional liberties were cited with reverence long after they were gone and replaced by an all-powerful emperor. “L’État, c’est moi” only applied as long as other political actors and the French people were willing to accept it. The centrepiece of a British royal coronation is still a ritual expressing the divine right of kings, which is politely ignored.

The United States has been undergoing a fundamental institutional and cultural transformation, a key dimension of which is presidential predominance. This executive takeover constitutes such a major revision of the living practice of the written Constitution that it may lead to its marginalization or irrelevance. What is striking is that a Supreme Court that prided itself on a return to the vision of the Founding Fathers of 1787 has done so much to undo that vision.

An acute crisis of constitutional legitimacy is now taking place in the United States as it approaches the 250th anniversary of its Revolution. It is, as often happens, caused by internal contradictions that can no longer be kept in check. Some, if not most, current constitutional norms will likely not survive unscathed.

An increasingly ignored Constitution

President Trump has demonstrated an unwillingness to leave power democratically. He has intimated that he would seek a third term in 2028. This would be clearly unconstitutional since it is prohibited by the 22nd Amendment adopted after Franklin D. Roosevelt died in office in 1945 at the beginning of his fourth term. No other president had dared to counter the tradition set by George Washington, who stepped down after two four-year terms – although some had considered it. This is a case of a democratic political practice hardening into a constitutional norm, one that is now again threatened.

Roosevelt justified his unprecedented decision to breach traditional political culture and stand for the third time in 1940 by invoking extraordinary circumstances: the invasion of France and the Blitz on London at the onset of World War II. American isolationism came to an end in December 1941 with the Japanese attack on Pearl Harbor and Germany’s declaration of war, just under a year after Roosevelt’s third term began. During World War II, the American presidency acquired temporary exceptional powers, as it had during the Civil War and World War I, and the imperial presidency reached its international zenith. Pax Americana prevailed over the entire world in its aftermath.

Richard Nixon in the 1970s and Trump in his first term undertook Illegal measures, but it was not until recently that the constraints of the rule of law came under direct attack. The outcome of the 2024 election brought a much more perilous and ominous, and perhaps irreversible, challenge to the foundation of the constitutional rule of law in the United States.

The King can do no wrong – or can he?

On December 17, 2024, the New York Times published an edited transcript of an episode of a noted podcast, The Ezra Klein Show. The guest host was constitutional scholar Kate Shaw, a professor of law at the University of Pennsylvania, and her guest was Gillian Metzger, a professor of law at Columbia Law School. What follows is an excerpt from their conversation:

SHAW: President-elect Donald Trump will enter office in January 2025 with more power and with fewer constraints than any other president in modern U.S. history. Agree or disagree?

METZGER: I agree.

SHAW: One of the most important decisions that I think operates as both sword and shield is the court’s immunity ruling from earlier this year, Trump v. United States, in which the Supreme Court handed Donald Trump sweeping new immunity from criminal prosecution for virtually any official acts taken as president. So what did you think was the most significant consequence or implication of that ruling?

METZGER: I think it’s really an unprecedented expansion of immunity for the president. The court divided up the instances when the president would be immune into a couple of camps.

One of them has to do with what we might call core or exclusive presidential powers, where the president has authority and it can’t be intruded on – for example, by Congress. In that area, what was really striking was how broadly the court viewed what counted as core power, including things like prosecution and investigation, suggesting that maybe Congress can’t impose restrictions on how those are undertaken – which would really be quite novel.

The other aspect was about how broadly it viewed official acts and the tests it established as to when immunity would apply. And it said the immunity would be presumptive. But it’s kind of hard to see how those presumptions are going to be overturned because immunity is going to be there unless it can be shown there’s no intrusion on the president’s power.

That’s a really high bar. And so for a vast area of actions, anything up to the outermost perimeter of the president’s official authority, all of that are areas in which the president is going to be immune.

These are restrained academic statements. They understate the reality of a lawless state that, in the early months after the Inauguration, is before us. The Supreme Court of the United States has done what the highest court of the Weimar Republic in 1932 did not do – pave the way for dictatorship. The case referred to in the above discussion came out of the January 6 prosecution, involving an attempted coup when the same President refused to leave office after his first term ended in defeat through the democratic process. In Trump v. United States the Supreme Court helped him effectively overthrow the U.S. Constitution by making prosecution for January 6 impossible after his reelection.

It is said that Benjamin Franklin was asked what kind of constitution the Founding Fathers had devised in Philadelphia in 1787. His answer was “A republic, if you can keep it.” Washington and Jefferson did not equate a republic with the rule of a strong man but with the rule of law provided by democratic institutions. The American Founding Fathers feared such a man as Donald Trump taking power and sought to divide power in the Constitution to prevent a takeover by a new executive monarchy such as had existed in the United Kingdom. The Canadian Founding Fathers did not fear such an occurrence because they placed implicit faith in the British parliamentary system.

What the Supreme Court of the United States did is discard the founding principles of the rule of law on which the Constitution of that country is based. It bestowed immunity in advance on a criminal and incompetent President, effectively becoming an accomplice in what would follow. This is not constitutional law: it is the law of the constitutional jungle, a return to a more primitive social contract reminiscent of Hobbes’s Leviathan. The irony is that the Republican Party that Trump leads has traditionally been the party of limited government.

The worst part of the Supreme Court decision is not its bestowing immunity for core presidential functions. One can understand the need for temporary limited immunity in wartime or comparable conditions, even if morally controversial decisions taken at the time turn out to have been unjustified. The U.S. Supreme Court in 1942 approved internment camps for Japanese Americans, for which official excuses were made decades later (Canada, which followed a similar policy, also apologized). It is legally justifiable that President Obama was not prosecuted for ordering the killing of Osama ben Laden or other terrorists, even ithough in one case the victim was an American citizen.

A related question can be asked about President Harry Truman for ordering the nuclear bombing of Hiroshima and Nagasaki and about Prime Minister Winston Churchill for approving the firebombing of Dresden. Were they guilty of war crimes? The answer of both British and American law is that they were not, but international law ruled at the time that the Nazi and Japanese leaders were responsible for war crimes. Under pressure of current events in the Middle East and Ukraine, the evolving answer of international law now appears to be that there would not be legal immunity were such tragic events to be repeated. On the criminal responsibility of heads of governments, international law and constitutional law are headed in opposite directions.

Note that last year’s U.S. Supreme Court decision applies only to the chief executive. Cabinet members and other public officials remain bound by traditional law. Generals or legal advisers, for example, do not benefit from presidential immunity. Under both international and constitutional law, there is still, as at the Nuremberg trials, no legal defence against criminal liability for following illegal orders.

According to the Supreme Court ruling, in many cases presidential immunity is absolute; in others, it will be presumptive but to overcome it a high bar is set. No wonder the January 6 charges were dropped. Apart from the fact that Trump was reelected and would have ended the prosecution against himself, the Supreme Court decision offered no assurance that he would have been convicted under such heavy legal constraints. This has now led to the most lawless and corrupt administration in American history, as suggested by another constitutional law professor, Leah Litman of the University of Michigan, in an April 14 podcast with host Greg Sargent of the New Republic:

SARGENT: Maybe the rule of law emerges bruised and battered but still subject to rehabilitation; and then on the other side, the rule of law ceases to exist. Where are you leaning right now?

LITMAN: I honestly don’t know. And that itself is extremely terrifying. I’m not getting a ton of sleep these days.

Litman’s new book, Lawless, came out in May and was described by the host as being “about the Supreme Court’s descent into darkness.”

Canada as constitutional hybrid

Jurists must tread lightly when they compare constitutions, but still the effort may be useful. Canada’s Constitution is a hybrid. Canada inherited the parliamentary system from Britain but also, because of its outsized geography, the principle of federalism from its neighbours. Its Constitution was negotiated under the shadow of the U.S. Civil War, in a series of conferences beginning in 1864. The autonomous state of Canada, known as a Dominion or self-governing colony, came into being through British legislation in 1867, the year the United States bought Alaska from Tsar Alexander II of Russia. That same year, Emperor Maximilian, put on the Mexican throne by his uncle Napoleon III following a French invasion, was executed after a short reign. It was a momentous time for the three countries of North America, just as our own time is.

The Canadian Founding Fathers did not look on the U.S. Constitution favourably. It was understandably seen as having failed. They rejected the separation of powers among the three main branches of government, and the American division of powers between the federal and state governments. Instead, they favoured parliamentary supremacy and a more balanced vision of federalism.

In 1900, the Australian Constitution, also created by the Westminster Parliament, established another federation. British jurists rejected federalism at home but, influenced by the United States, did not hesitate to set it up in the colonies.

Though the American, Canadian, Australian and Mexican divisions of powers are all different, they are nonetheless all federal because each country’s constitution prevents the legislature from changing it unilaterally. Criminal law falls under state jurisdiction in the United States, with some exceptions; it falls under federal powers in Canada. Public lands are mostly federal property in the United States, provincial in Canada. That is why we have provincial utilities but no Hydro-Canada.

The enhancement of judicial power in the American Republic began with the addition of the U.S. Bill of Rights to the 1787 Constitution. It was initially adopted by Congress in July 1789 before its ratification by the states. The French Declaration of the Rights of Man, whose first draft was written by the Marquis de Lafayette with the help of Thomas Jefferson, was adopted by the new French National Assembly in August of that year. The Bill of Rights was adopted by Congress with the blessing of George Washington, who, after being the commander-in-chief in the American Revolutionary War with the critical support of the French who had been mostly led by Lafayette, was serving as the first President. Washington received the keys to the Bastille, which had been stormed in July, as a gift from his former deputy a few months after his Inauguration. The overthrow of the French monarchy echoed the successful revolution against George III, though the French Declaration of Rights remained primarily moral and symbolic and of little legal effect under the many French constitutions that followed.

In the United States, quite to the contrary, the Supreme Court assumed in 1803 in the seminal case of Marbury v. Madison that it implicitly and logically had the power to strike down legislation so as to enforce the Bill of Rights. This was a second American revolution – of a legal character and totally unprecedented anywhere. The Canadian Supreme Court, upon its creation in 1875, only obtained similar authority under British supervision in relation to the federal division of powers. It assumed responsibility for application of the Canadian Charter of Rights in 1982 and thus became a coequal branch of government on the U.S. model. This is a status still not enjoyed by British courts, although – much to the chagrin of nationalist British politicians – the European Court of Human Rights comes close.

A basic maxim of 20th-century American constitutional law was that the judiciary was the least dangerous branch of the state because its sole function was to provide safeguards against the excesses of the other two. Now the Supreme Court, like Congress, shows signs of abandoning this honourable legacy to an all-powerful executive. At the time of writing, a standoff between the President and the judiciary over the deportation of immigrants is taking shape. The Supreme Court may well reap the poisonous fruit of the rotten tree it planted in 2024. Like Dr. Frankenstein, it is now attempting to curb some of the arbitrary measures of the constitutional monster it has created. It is not clear that it will succeed.

Prime ministers are not kings even if presidents tend to be

With respect to the chief executive, while the powers of the American president are defined in the Constitution, those of British and Canadian prime ministers are nowhere to be found in a constitutional or other legal document. They are entirely the product of political culture, known in legal parlance as constitutional conventions, a term which has a markedly different meaning in the United States.

Constitutional conventions in Canada are unwritten norms at the core of the British and Canadian parliamentary system. They provide for collective responsibility of Cabinet to Parliament, the executive powers of the prime minister, the need for government to maintain the support of a majority in Parliament and the obligation for government to resign if this support is withdrawn.

Thankfully, there have so far been no parallels in Canadian law to the troubling immunity decision in the United States. Canadian law is going in the opposite direction. Crown immunity has steadily declined in the past century, and it has never provided prime ministers with a legal status that would put them above the rule of law.

Crown immunity has declined even with respect to extensions of the royal person. In Quebec recently, a former lieutenant-governor, Lise Thibault, sought to avoid prosecution for fraud in her expense accounts by claiming sweeping Crown immunity. The court’s response was that the time for such a legal position was long past. The Supreme Court of the United States has handed American presidents a legal immunity Canadian prime ministers have never had and British monarchs and their representatives have lost.

The Declaration of Independence of July 4, 1776, was personally directed at King George III. It is said that had George Washington wished it, he could have become king and remained in power for life. He retired peacefully, in sharp contrast to Napoleon Bonaparte who, like him, had been the providential saviour of his country’s revolution. Also in sharp contrast fo Donald Trump. Trump recently said that men who save their countries cannot be said to act illegally, a line apparently taken from a film about Bonaparte.

George III went mad and never accepted the reality of American independence. He spent the last ten years of his life in an asylum for the insane. Indigenous peoples say that time moves in a circle. The United States began by removing a king who went mad and now needs to get out from under a President mad enough to believe he should be king.

A republic of Quebec?

Quebec will one day be a republic. About 70 per cent of its people reject the British and Canadian monarchy. They dislike it viscerally with almost the intensity (though without the anger) of the Irish, and for the same reason: it is the palpable symbol of British conquest. Moreover, monarchy is profoundly incompatible with Quebec’s evolving national identity, which is moving closer to the modern French values of republicanism, social democratic liberalism and secularism that emerged after the Conquest.

Québec’s National Assembly recently abolished its members’ oath of allegiance to the King. Support for the abolition of the monarchy is a constitutional wedge issue. It is currently more popular in Québec than sovereignty, defence of the French language, secularism or the environment. Other unilateral measures may soon follow in a provincial constitution. Unclear is whether an autonomous nation-state of Québec will ultimately take the form of a republic within or outside Canada, and whether it will keep the British and Canadian parliamentary system or choose an American- and French-style dominant executive system that can one day degenerate into strongman rule.

What is happening in the United States should provide valuable lessons to proponents of a republic in both Canada and Quebec. The need to rein in the chief executive under the rule of law is as pressing now as it was in the 18th century. The failure of the American Constitution, like the fall of Antarctic ice into the ocean, has historic implications. As in 1867, the British parliamentary system, despite its failings, is more appealing.

The constitutions of the United States and of Canada are both under pressure because of underlying changes in the fundamental social contracts, although for opposite reasons. The American people appear open to having a king. More than ever, the people of Quebec, and Canada, do not.

Image via Wikimedia Commons.

If Justin Trudeau is still Prime Minister on November 4, 2025, he will mark his tenth anniversary in office, joining his father along with John A. Macdonald, Wilfrid Laurier, Mackenzie King and Jean Chrétien in the exclusive ten-years club. All those other prime ministers had a historic impact on Canada. Can the same be said of Justin Trudeau?

The lifework of Macdonald, Laurier and King was the establishment of the Canadian state and its journey from the status of a British self-governing colony to independence and world influence. Trudeau the Elder and Chrétien’s names will be forever associated with major constitutional reform and winning two referendums on the sovereignty of Quebec. Has Trudeau the Younger accomplished anything of a constitutional nature which would give him similar stature in Canadian history?

I would argue that in at least one area and in a more low-key and less spectacular fashion, he has. The transformation of Canadian Aboriginal law under his government is much more than an extension of the past.

In the greatest U-turn in Canadian constitutional history, his father constitutionalized Aboriginal rights in 1982 after having proposed their suppression in 1969. Since 1982, judicial activism has been as pronounced in the enforcement of that new mandate as it has been for the individual rights protected by the Charter of Rights.

These are two distinct areas of constitutional law because the section of the Constitution guaranteeing Aboriginal rights is not part of the Charter,¹ and because by nature Aboriginal rights are collective rights, a concept that was initially abhorrent to Pierre Trudeau’s ideology. Justin Trudeau has not only embraced that collective nature but also directly inspired the expansion of Aboriginal rights in ways not contemplated by the framers of either the initial Canadian Constitution of 1867 or the modernized Constitution of 1982. This expansion has now reached the point of beginning a restructuring of the Canadian state. This is a more fundamental process than simply trying to correct the many injustices of the past. The Canadian state has entered a new, much deeper, phase of Aboriginal law where it is now attempting to counter its own colonial nature.

This process may be considered humanist and laudable, and a significant Canadian contribution to the advancement of universal human rights. Notably, however, the Canadian people know next to nothing about it, and it is taking place without any formal change to the Constitution. It involves a fundamentally different political and legal reading of Aboriginal rights, a historic rethinking of the Canadian legal imagination. In this way, Justin Trudeau has not only added to his father’s legacy but carved one entirely his own.

He has also pushed to new heights his father’s disdain for constitutional bargaining, and unilaterally effected major constitutional change that will gradually, significantly and increasingly weaken provincial autonomy. Not only has he not sought provincial consent to this restructuring, but he has also silently gone about it with little democratic debate. In this manner, he has proven to be at least as elitist as and even less forthright about his intentions than his father, who was accused, at least in Quebec, of achieving formal constitutional reform through deceit based on a political philosophy that the moral end justified the deplorable means.

If Trudeau the Elder was Canada 2.0, Justin is clearly Canada 3.0 in both Aboriginal and constitutional law. Indeed, he has made the traditional distinction between those two major areas of the law antiquated and largely irrelevant. This constitutional sleight-of-hand for ostensibly noble purposes is the Trudeau dynasty trademark, but on a level Justin’s father did not achieve.

The uncomfortable matter of Aboriginal rights

French colonizers never recognized Aboriginal rights within their legal system, regarding them instead as a matter of foreign relations with allies or vassal nations. The Treaty of Paris of early 1763, which made the British Conquest final, said nothing about the rights of Indigenous peoples. Indigenous peoples in Michigan and Ontario rebelled under the leadership of Pontiac, who had been an ally of the French. To appease Pontiac, the British government issued the Royal Proclamation of late 1763, the first major legal instrument of the new constitutional regime. The Proclamation recognized, for the first time, Aboriginal rights within the legal system of a European colonizing state in the Americas.

The Royal Proclamation remains a foundational part of the Constitution of Canada to this day, and was expressly preserved by the Constitution Act of 1982. It is what makes the Canadian state legally colonial. It is also a radical departure from British law applying in the U.K., although it became an important element of British imperial law.

For over two centuries, Aboriginal rights were honoured in the breach. British, and later Canadian, colonizers paid lip service to these rights to satisfy the Royal Proclamation. The Proclamation stated that Aboriginal rights could only be surrendered to the Crown, never sold to individual settlers, and that Canadian occupation of Indigenous land could only be made legal through domestic treaties. The result was an initiative to obtain the surrender of Aboriginal rights, derived from immemorial occupation, through such treaties. This was deemed necessary to legally gain access by the state and European settlers to vast areas of Canadian territory and its natural resources, including western wheat and oil.

Historic treaties (“numbered” treaties), concluded between the late 18th and the early 20th century, covered Ontario and the Prairies. These treaties were fraudulent. They were deemed legally necessary to make non-Indigenous occupation a product of fictional Indigenous consent. They dispossessed Indigenous people who could not read or write and had no legal counsel of vast lands and countless wealth for derisory pseudo-compensation. In any civilized legal system such disparity between the parties would make any such agreements null and void. They were, and remain, a massive violation of human rights.

Those treaties are applied to this day. The Canadian legal system has not yet reached the point of putting them in question, but it undoubtedly and inevitably will at some point, with major economic and political consequences.

The territories that became the provinces of Quebec and British Columbia, with the multigenerational concurrence of British and federal jurists, long claimed that they were exempt from the Royal Proclamation and never even bothered to sign fraudulent treaties. Canada’s highest court eventually decided, with respect to B.C., that the Proclamation applied in the entire country and, with respect to Quebec, that under current Canadian law Aboriginal rights could only be abolished explicitly. This meant they were considered to have been dormant under the French and reactivated by the British, although no one knew this until the Supreme Court said so centuries later. Unlike other areas of the law, Canadian Aboriginal law is routinely applied retroactively under today’s more exacting legal standards. Canadian legal history is constantly being rewritten backwards, and this extraordinary process, which can be called judicial decolonizing, appears to be gaining speed in the 21st century.

Colonial treaty making came to a stop in the 1920s. These immoral treaties closely tracked settlement and, even more, the expansion of natural resource extraction. The Indian Act served as a necessary adjunct to provincial laws on natural resources, which could only be effective, it was thought then, if the Indigenous question had found its final solution: forced removal into tiny reserves. Indigenous occupation of land was seen as a major impediment to provincial ownership of, and exclusive legislative power over, public lands, a major feature of the Constitution Act of 1867.

Canadian Aboriginal law is the poor relation of Canadian natural resource law. To this day, there is no greater structural racism in federal and provincial legislation, which still largely ignores both international and constitutional guarantees of Aboriginal land rights. This is what the current federal government’s initiatives begin to put into question.

After numbered treaty-making stopped, the very existence of Aboriginal rights was challenged. The Indian Act was gradually made more flexible starting in 1951, but the federal and provincial governments of the time took the position that further treaty-making was unnecessary. Major natural resource extraction projects, such as the first dams built by Hydro-Quebec in the 1950s and 1960s on the North Shore of the St. Lawrence on Innu lands where no treaty existed, were undertaken in complete disregard of Aboriginal rights with the concurrence of the federal Department of Indian Affairs.

In 1969, one year after he took power and named Jean Chrétien to the Indian Affairs portfolio, Trudeau the Elder’s government issued an infamous White Paper on Aboriginal rights, or rather the lack thereof.² Claiming that a just society could no longer accept systemic discrimination, it stated that Aboriginal rights were a quaint leftover from Canada’s past. With a nod at Quebec, it dismissed the notion of collective rights as abhorrent to a modern Western society.

The solution proposed was the end of the Indian Act and of reserves, followed by the integration of Indigenous people under provincial law without, it was expected, discrimination and without, it was emphatically announced, federal protection. The federal government was getting out of its uncomfortable Indigenous business without any intention of correcting the innumerable injustices of Canada’s past, present or future.

First Nations and the Canadian judicial system had other ideas. First, the scale and intensity of the protests from Indigenous groups and communities across the country soon led Trudeau to withdraw his White Paper. He did this with disdain by declaring that Indians could keep their ghettos. His government announced a fundamental rethinking of its Indian policy.

Meanwhile, an even greater blow came from the Supreme Court of Canada. In a historic decision in early 1973, the Court held that Aboriginal rights still existed and had full legal value, because the Royal Proclamation still applied and had constitutional significance.³ A few months later, the federal government reversed course and announced its intention to negotiate new modern treaties. Aboriginal rights, however, remained subject to unilateral federal suppression until they were constitutionalized under the Constitution Act of 1982. Section 35 of that act, which is not part of the Charter of Rights, was light-years away from Trudeau the Elder’s initial position 13 years earlier.

The first modern treaty under the new federal policy was the James Bay Agreement of 1975, which covers two thirds of Quebec’s land mass, almost one million square kilometres.⁴ It is the only treaty signed by a provincial government and one of its entities, Hydro-Quebec. It binds three of the eleven Indigenous nations recognized by Quebec’s National Assembly: the Cree, the Inuit of Nunavik and the Naskapi.

The James Bay Treaty was made necessary for three reasons. First, technology had reached northern Quebec and Premier Robert Bourassa had made building huge dams on the rivers leading to James Bay the centrepiece of his political program. Second, the Supreme Court’s 1973 decision had transformed the legal landscape.

Third, when Laurier added northern Quebec to provincial territory, the federal government had inserted a unique clause in its legislation that put the onus on the province to obtain the surrender of Aboriginal land rights. This was still, after all, the period of fictitious treaty-making. Quebec ignored that clause as long as the northern two thirds of the province remained inaccessible to white Quebecers. It was rediscovered, much to the dismay of Quebec jurists, in 1973. The Aboriginal land rights clause was then worth hundreds of millions of dollars – billions when the James Bay Agreement was amended in 2001.

The main purpose of treaties made by Canada with First Nations remains the surrender of Aboriginal land rights, specified in section 2.1 of the James Bay Agreement. It is the prototype of all the treaties signed by the federal Crown with First Nations in B.C., Yukon, the Northwest Territories and Nunavut since then.

Treaties remain to be negotiated with other First Nations in B.C. and Quebec, some of which have refused to do so if Ottawa continues to insist on surrender of what they consider fundamental human rights. Justin Trudeau has promised alternatives, but so far none seem to have emerged.⁵

Enter Justin Trudeau

Trudeau the Younger’s specific contribution is derived from an unprecedented convergence between an entirely new reading of section 35 of the Constitution Act of 1982 and emerging international law relating to Indigenous peoples. This convergence has now been taken up by the Supreme Court and can be expected to lead to structural changes in the Canadian state, including the creation of a third order of government by judicial fiat at provincial expense. This undemocratic process of major informal constitutional amendment through the judicial process was beyond the constitutional pale in the recent past. It is now underway.

In this major historical change, Justin Trudeau has not only named the judges, in the Supreme Court and lower federal courts, who are making this change in the law and constitutional interpretation, but caused Parliament to adopt crucial legislation to accelerate the process. He has also aggressively used federal power over Indigenous affairs granted in the 1867 Constitution to make a third order of government possible and to elevate Indigenous laws to the level of federal legislation, giving them primacy over provincial laws.

All of this, which is more than enough to cause alarm in some provincial capitals, came about outside the democratic process. The ultimate targets of this new judicial dynamic will be provincial ownership and exclusive power over natural resources, as well as the validity of the numbered fraudulent treaties that are the legal basis for the existence of the Canadian state over half its land base.

Section 35 protects the Aboriginal and treaty rights existing in 1982 from incompatible federal and provincial legislation. Treaty rights were then limited, since the era of modern treaties had barely begun and numbered treaties were not taken seriously in most cases. The real issue was the extent of Aboriginal rights, which remained largely undetermined. In a series of major cases, the Supreme Court set out to define them.

What was left out of the judicial process until 2024 was the Aboriginal right of self-government, which logically is a precondition for the exercise of all other Aboriginal rights. The reason it was not contemplated by the courts was the consensus among elites, including Indigenous elites, that such a fundamental restructuring of the Constitution was beyond the capacity of the Supreme Court. Until the advent of the Justin Trudeau government, it was felt that such a restructuring could happen only if the Constitution was reopened to negotiation – that is to say never.

Indigenous government was seen in 1982 as the most pressing constitutional business left over from patriation. The Constitution Act itself promised three further conferences to find ways to include it in the Constitution.⁶ This was an admission by Indigenous representatives themselves that section 35 was not sufficient to include Indigenous self-government, a view that was widely shared at the time. Those three constitutional conferences were held, and their failure created a major constitutional impasse at a time when the Supreme Court was busy reinforcing those Aboriginal rights that had been protected by section 35.

Simultaneously, the attention of the country was turned to the Meech Lake Accord, which tried to address the matter of Quebec by recognizing it as a distinct society. This created such understandable frustration among Indigenous peoples at the failure of the Canadian state to accommodate their priorities that an Indigenous member of the Manitoba legislature helped sink the Accord.

Another attempt was made to accommodate both Quebec and First Nations in the Charlottetown Accord, which was rejected by Quebecers and Canadians in parallel referendums in 1992. The negative majorities were decisive although not overwhelming. In constitutional parlance, there was a relatively clear question and an undeniably clear result. The effect was that there were no longer two solitudes in Canada: there were three.

This is when some legal writers began to suggest that what had always been intellectually possible could be judicially achieved: go around the formal constitutional amending process, which had proved inadequate after many good-faith efforts, and ask the courts to include self-government among Aboriginal rights.⁷ In the 1990s this marginal view was still political anathema, but it would grow over the years.

In 1990 the Oka crisis, just after Meech failed, led Brian Mulroney’s federal government to establish the Royal Commission on Aboriginal Peoples (the Erasmus-Dussault Commission). This commission’s very substantial report, issued in 1996 when Jean Chrétien was in power and the country was still reeling from the effects of the almost-tied result of the second Quebec sovereignty referendum, was shelved on the day it was issued because it contained some novel ideas that were then still unacceptable to the major parties in Ottawa. Among them was the idea that self-government had been protected by section 35 since 1982.⁸ Only in 2024 would the Supreme Court begin to accept this idea after Justin Trudeau gave it a significant prompting in 2021.

The UN sends a message

In 2007, another milestone was reached when, after decades of discussion, the United Nations General Assembly finally adopted the Declaration on the Rights of Indigenous Peoples.⁹ This Declaration has similar legal value to the Universal Declaration of Human Rights, to which Canada proudly contributed in 1948. Legal scholars see it as a fourth-generation extension of human rights that finally reached the most oppressed peoples on the planet.

The 2007 Declaration, however, creates an uneasy tension between universal and specific rights. In addition to universal rights against discrimination, it affirms the Indigenous right of self-determination, which is very largely congruent with the Canadian concept of self-government in domestic law. It also affirms Aboriginal land rights that clearly go beyond existing Canadian law. Moreover, these land rights are racially based, a concept that the Western world has almost universally rejected since the European Enlightenment and especially since the Holocaust.

For these reasons, plus the challenge the Declaration represented to to the numbered treaties and the natural resource sector that has always been at the heart of the Canadian economy, Canada was one of only four countries that voted against the Declaration. The other three holdouts were all beneficiaries of the British colonial empire that feared a resurgence of Aboriginal rights in their internal legal systems: the United States, Australia and New Zealand. Notably, South American and African countries, also the product of colonization, supported the Declaration, and some have made important constitutional changes in accordance with it.

Canada’s position was unsustainable in the long run. A strong supporter of the UN and international law generally, it was proud to be a middle-power state with a nearly flawless record in defence of human rights. It always wished to be a shining example to the world. Even the Conservative government of Stephen Harper felt the pressure. It tried to confuse the issue by accepting the Declaration with many reservations, which rendered its official consent meaningless.

At the same time, Australia and New Zealand, which also felt intense international and Indigenous lobbying, reversed their position and ratified the Declaration unconditionally. Only the United States, a nationalistic superpower whose view of international law is more suspicious than Canada’s and whose domestic Aboriginal law is a world of its own which contains the good, the bad and the ugly, remains apart. Canada, not being such a superpower, had to give in at some point.

It did so immediately after Justin Trudeau came to power in 2015. A new generation of Liberals, different from Dad’s and Uncle Jean’s, was in town. These were 21st-century Liberals who saw provinces as obstacles to morally imperative constitutional change. They were horrified by the foredoomed constitutional processes of the past. They had learned from Trudeau the Elder that Canada’s federal courts, which they staffed with ideological friends, could usually be relied on to implement their basic constitutional agenda.

One major legal hurdle remained. Canada’s legal system, derived from the British, did not apply international law domestically even after ratification of a major treaty or covenant. Federal, and in some cases provincial, legislation was necessary to introduce such international rules into Canadian law. Otherwise, Canadian courts could only be inspired by them at their discretion in a haphazard, indirect and unpredictable way, which was unsatisfactory for the activist Justin Trudeau government.

At any rate, the UN Declaration was not a treaty. A declaration of the UN General Assembly may carry great moral weight, as did the Universal Declaration of 1948, but it is soft international law. The 1948 Declaration had no direct legal effect in Canada, but it inspired renewed sensitivity to human rights in the Canadian Supreme Court in the 1950s, the adoption of the Diefenbaker Bill of Rights in 1960 (which had limited impact) and numerous federal and provincial laws, including the Quebec Charter of Rights of 1975, probably the most comprehensive provincial legislation in this field. This process culminated in the adoption of the Canadian Charter of Rights, a major part of the Canadian Constitution, in 1982.

The Charter can be seen as the grandchild of the Universal Declaration of 1948. Section 35 of the Constitution Act of 1982 can also now be seen as foreshadowing the UN Declaration of 2007. Canada can reclaim its moral standing on this issue at the heavy price of challenging its inherent nature. Canada has begun to decolonize without telling the Canadian people.

The last turning point came in 2021 when Parliament introduced the 2007 Declaration into Canadian law.¹⁰ This short piece of legislation has outstanding constitutional significance. As of 2024, it is bearing judicial fruit in Canada’s highest court. This confluence of emerging international law and constitutional law is undoubtedly progressive, and of such legal force that a future Conservative government may only be able to slow its pace.

If 1982 was a constitutional coup, the 2021 federal law ranks right up there beside it. Both were highly undemocratic in that the Canadian people did not vote for either of them. The Trudeaus have both changed Canada fundamentally, in different ways, and it will take many years to fully understand what they have accomplished.

This was made clear in a decision of the Supreme Court in February 2024, which can only be described as a turning point with major implications for Canadian federalism and the structure of the Canadian state.

The Supreme Court’s contribution

Parliament passed legislation in 2019 that purported to redress severe suffering in Indigenous communities over many decades in the matter of social services for children and families. It chose to reach that objective by handing over jurisdiction in this matter to Indigenous communities, as several experts and studies had proposed.

But Parliament went further than simply delegating this additional responsibility under the Indian Act. It declared that social services were a matter of Indigenous self-government and that the right to self-government was constitutionally protected, which meant it was no longer subject to federal or provincial legislative delegation of power to Indigenous communities. It was a legislative power that flowed directly from section 35 of the 1982 Constitution, creating in effect a – racially based – third order of government.

The Attorney General of Quebec challenged this act before the courts, stating that this goal could be achieved only through the formal amendment process, and that Parliament did not have the power to enact the 2019 legislation. This challenge led to the Supreme Court’s 2024 decision in the Reference re An Act respecting First Nations, Inuit and Métis children, youth and families,^¹¹ in which it validated this first exercise of federal legislation that created a third order of government. By its approval of the unprecedented use of the legislative power over Indigenous peoples granted in 1867, the highest court agreed that Parliament could unilaterally:

• eject provinces from the field of providing social services to Indigenous youth and families,
• recognize that the Indigenous right of self-government in this area now flowed from section 35,
• decree that there would now be such a thing as Indigenous laws in Canada,
• declare that such Indigenous laws would be an extension of federal legislation, and
• grant such laws the same paramountcy over provincial laws that federal laws have always had.

This is a fundamental departure from Canadian constitutional law known since 1867, and a radical new dimension of the already major constitutional change brought about in 1982.

In doing so, the Supreme Court heavily relied on the UN Declaration of 2007, unusual for what can only be considered a rather weak international instrument. Major changes to the Canadian legal order flowing from the 1948 Declaration only came about when Canada subscribed to much more precise international covenants of the 1960s that gave effect to the Universal Declaration and adopted federal or provincial legislation of its own. In comparison, we have here a rush to fundamental legal change that would have been inconceivable a few decades ago.

This is the new intellectual framework of the Court, which will lay the groundwork for its jurisprudence for many years to come:

The Act¹² is part of a broader legislative program introduced by Parliament to achieve reconciliation with First Nations, the Inuit and the Métis “through renewed nation‑to‑nation, government‑to‑government and Inuit‑Crown relationships based on recognition of rights, respect, cooperation and partnership” (preamble). The framework serving as the foundation for this reconciliation initiative by Parliament is the United Nations Declaration on the Rights of Indigenous Peoples …, adopted by the United Nations General Assembly in 2007. That international instrument provides that “Indigenous peoples, in exercising their right to self‑determination, have the right to autonomy or self‑government in matters relating to their internal and local affairs” (art. 4). Among the matters dealt with in the Declaration, the provisions setting out “the right of indigenous families and communities to retain shared responsibility for the upbringing … and well‑being of their children, consistent with the rights of the child” (preamble; see also art. 14) are of particular relevance to this reference …

While the Declaration is not binding as a treaty in Canada, it nonetheless provides that, for the purposes of its implementation, states have an obligation to take, “in consultation and cooperation with indigenous peoples, … the appropriate measures, including legislative measures, to achieve the ends” of the Declaration (art. 38). Recognized by Parliament as “a universal international human rights instrument with application in Canadian law”, the Declaration has been incorporated into the country’s positive law by the United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14 (“UNDRIP Act”), s. 4(a).1³

No one questions the morality of such a federal undertaking, or the pressing need for better social services for Indigenous people. It is obvious that the federal and provincial governments, the colonial Canadian state at it has so far been conceived, has utterly failed in this regard.

What is startling is that a fundamentally new Canadian state is now emerging without the use of the formal amending process adopted in 1982, without the consent of the provinces and at their expense, and without any larger public debate about the creation of a third order of government.

The Supreme Court explicitly stated that it had little concern for provincial resources that will now be required to put Indigenous laws into effect. It said nothing about the consequences of concurrent and different Indigenous laws applying within provinces or across the country, nor problems flowing from their application outside Indigenous reserves, since a majority of Indigenous people now live in cities and Indigenous jurisdiction clearly does reach that far. The city of Montreal’s social services, for example, may now be called on to apply different sets of Indigenous laws based on racial distinctions. This is not only alien to the Constitution of 1867, but was also never contemplated by the drafters of the Constitution of 1982.

Following this decision, the federal government promptly announced it would soon introduce further legislation removing the entire field of Indigenous health care from provincial jurisdiction. There is now no constitutional obstacle to going much further into other formerly exclusive areas of provincial jurisdiction as long as they have an Indigenous component. Natural resources, dealt with explicitly in the UN Declaration of 2007, inevitably come to mind.

The Supreme Court was disingenuous enough to write, in response to the Attorney General of Quebec, that it was not tinkering with the fundamental architecture of the Constitution, which would have triggered the formal amendment process. That has to rank with the most deceptive statements made by politicians in the Trudeau the Elder era. The best that can be said is that that the highest court has now inaugurated a period of transition that will make the Canadian state unrecognizable.

Justin Trudeau has introduced an entirely new dimension to Canadian nation-building. The legal changes he has brought, through major unilateral reinterpretation of constitutional law based on fledgling forms of international law, mean that the traditional division of powers between Ottawa and the provinces has been set aside. Canadian federalism in the 21st century now has three orders of government, in which Indigenous laws are legal norms superior to both provincial legislation and municipal ordinances. This monumental constitutional change has been brought about without federal-provincial conferences or constitutional bargaining. Justin Trudeau has outdone his father quite significantly. Trudeau the Elder would be impressed.

Unlike his father’s, Justin Trudeau’s coup was under the radar. He has added a third order of government to Canadian federalism without an unattainable amendment to the Constitution. This is high constitutional art. It will change the country at least as much as his father’s Charter of Rights, or the mass immigration Trudeau the Younger has also brought in undemocratically.

Continue reading “Justin Trudeau’s Constitutional Coup” →

The Quebec National Assembly’s use of the notwithstanding clause, contained in section 33 of the Charter of Rights and Freedoms, is highly controversial. While this use is undoubtedly legal under currently applicable case law, considerable effort is spent to bring the Supreme Court of Canada to reverse its interpretation of section 33, which authorizes the use of the notwithstanding clause under purely formal conditions.

In this regard, the political cultures of Canada and Quebec stand in sharp contrast to each other. While Quebec has invoked the clause in a variety of contexts, debate has centred on legislation relating to religious freedom and language issues. The intensity of this controversy can be traced to the circumstances surrounding the defeat of the constitutional reform package known as the Meech Lake Accord in 1990.

In effect, Quebec is using the notwithstanding clause as a partial substitute for the distinct society clause, the most vilified section of the Meech Lake Accord. Many in Quebec thought that the Accord would have changed the judicial interpretation of different aspects of the constitution with respect to Quebec, which considered itself a distinct society. These hoped-for objectives are partly met by use of section 33.

Quebec is also using the notwithstanding clause as a shield against the Constitution Act, 1982, which was adopted without the consent of the National Assembly and without a referendum, and is therefore widely seen as lacking democratic legitimacy.¹ This lack of legitimacy was exacerbated by the defeat of the Meech Lake Accord, which despite its insufficiencies was meant to restore that legitimacy.

Quebec regards language and religious issues as vital elements of its national identity, and Canada as having inadequately accommodated these concerns. Quebec’s identity continues to evolve. At present, based on the indifference of non-francophones to the decline of French-language minorities outside Quebec, the majority in Quebec feel that the French language in Quebec is under existential threat.

The debate over the notwithstanding clause in the Canadian constitution is not merely a continuation of the constitutional wars of the years between patriation of the constitution in 1982 and Quebec’s referendum on sovereignty in 1995, marked by lack of progress toward the satisfaction of Quebec’s basic grievances. The more recent debate also raises major questions about varying conceptions of liberalism and the possibility of their cohabitation within a single Western state.

Quebec’s distinct society and the Supreme Court

The Supreme Court does recognize at times that Quebec is a distinct society. For example, in Ford v. Québec in 1988, it acknowledged that Quebec is distinct and that the predominance of French as a public language is part of this distinctness.² Therefore, maintaining it is a “pressing and substantial objective” that would justify infringements on the freedom of expression of people like Valerie Ford.

More recently, in the Reference re Supreme Court Act, ss. 5 and 6,³ which dealt with a completely different part of the Constitution, it went further. In that extraordinary case, the Supreme Court deemed that the nomination of one of its own members was unconstitutional because it was incompatible with Quebec’s nature as a distinct society. Prime Minister Stephen Harper had selected a Federal Court judge, Marc Nadon, who was from Quebec but had no professional experience in Quebec civil law. This is what six of the seven members of the Supreme Court sitting in that case had to say:

The purpose of s. 6 is to ensure not only civil law training and experience on the Court, but also to ensure that Quebec’s distinct legal traditions and social values are represented on the Court, thereby enhancing the confidence of the people of Quebec in the Supreme Court as the final arbiter of their rights. Put differently, s. 6 protects both the functioning and the legitimacy of the Supreme Court as a general court of appeal for Canada. This broader purpose was succinctly described by Professor Russell in terms that are well supported by the historical record:

The antipathy to having the Civil Code of Lower Canada interpreted by judges from an alien legal tradition was not based merely on a concern for legal purity or accuracy. It stemmed more often from the more fundamental premise that Quebec’s civil-law system was an essential ingredient of its distinctive culture and therefore it required, as a matter of right, judicial custodians imbued with the methods of jurisprudence and social values integral to that culture.⁴ (emphasis in original)

The Supreme Court is telling us here that it does not need a distinct society clause to apply those parts of the constitution that already reflect the distinct nature of Quebec. By using the notwithstanding clause, Quebec is saying it needs more to adequately protect its distinctness and, in many cases, cannot rely on the Supreme Court to do so.

What is a notwithstanding clause?

A notwithstanding clause, also known as a clause dérogatoire or non obstante clause, allows the legislative branch to immunize laws from constitutional review by the courts by using explicit language that the law will operate “notwithstanding” some entrenched constitutional principle. Notwithstanding clauses are common in modern charters of rights. There is thus nothing unusual about having included one in the Canadian Charter. But the breadth and unevenness of section 33’s applicability are somewhat troubling. It punches a hole in the Charter of which it is a part. However, to state that this hole is unconstitutional is a contradiction in terms. The clause is a major component of the Canadian constitution. It is a defining feature of the Charter, which probably would never have been adopted without it.

Section 33 of the Canadian Charter of Rights and Freedoms reads as follows:

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

(3) A declaration made under section (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

(4) Parliament or the legislature of a province may re-enact a declaration made under section (1).

(5) Section (3) applies in respect of a re-enactment made under section (4).

The scope of section 33 is more evident when it is compared with other modern charters of rights.

Under international law, a notwithstanding clause can be found in article 4 of the International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly in 1966 and ratified by Canada 10 years later. The Covenant is therefore legally applicable in Canada.

Article 4 can only be invoked in a time of public emergency which threatens the life of the nation and is officially proclaimed. Derogating measures must be strictly required by the exigencies of the situation and may not include discrimination. Here, international law is clearly more strict than Canadian constitutional law. On the other hand, Canada’s Emergencies Act, adopted in 1988 and applied in 2022 to deal with a group of truckers and their allies known as the Freedom Convoy, states that it does not curtail the application of the Charter, and does not invoke the notwithstanding clause.

Two other major contemporary treaties under international law whose purpose is to affirm fundamental human rights also contain notwithstanding clauses: article 27 of the American Convention of Human Rights, which applies to most countries in the Americas; and article 15 of the European Convention of Human Rights. These are regional legal instruments which are not applicable in Canada, but are relevant for comparative purposes.

Article 27 of the American Convention is titled “Suspension of Guarantees.” Its first paragraph reads as follows:

1. In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin.

Article 27 is similar in this regard to article 4 of the International Covenant and to article 15 of the European Convention. Section 33 of the Canadian Charter is more permissive and falls short of international standards. It is not limited to times of war, public danger or other emergency that threatens the independence or security of Canada or one of its provinces. Indeed, unlike section 1 of the Charter, which provides for “reasonable limits” on rights and freedoms, it does not require the government to justify infringements at all. Once section 33 has been invoked – at least on current doctrine – the courts have no further business inquiring into why.

It also falls short in another sense. It states that a notwithstanding clause can be included in legislation exempting sections 2 and 7 to 15 of the Charter from judicial review. Such a provision cannot apply to section 23, which guarantees official minority language of education rights, nor to aboriginal rights preserved by section 35 of the Constitution Act, 1982 (the Charter stops at section 34). The problem here is that sections 2 and 7 to 15 cover the most basic and universal individual rights and that international treaties forbid any derogation or notwithstanding clause in many of these cases.

In Canada, official minority language of education rights are better protected legally than fundamental freedoms. This is rarely seen elsewhere and reveals a curious hierarchy of rights that ought to raise questions of principle.

Section 2, which provides both for “freedom of conscience and religion” (s. 2(a)) and “freedom of expression” (s. 2(b)) is a universal right, but it is not universally understood the same way. Quebec’s use of the notwithstanding clause in Law 21 on secularism is designed to prevent the application of section 2(a) as interpreted by the Supreme Court. This would be impossible under the American Convention which governs the Organization of American States, to which Canada is not a party, because paragraph 2 of article 27 quoted above exempts the guarantee of freedom of conscience and religion from the possibility of derogation. Similarly, the International Covenant does not allow derogations to its article 18, which also guarantees freedom of religion and conscience.

These treaties allow for reasonable limitations to guaranteed rights, which are also permitted under section 1 of the Charter. Limitation clauses are quite different from notwithstanding clauses because the reasonable character of such limits is debated before the court. Notwithstanding clauses preclude the possibility of judicial scrutiny altogether. Limitation clauses in a constitution are so logically necessary that, in cases such as the U.S. Bill of Rights where they do not exist, courts are forced to invent them jurisprudentially.

Similarly, the Supreme Court of Canada added a jurisprudential limitation clause to the interpretation of aboriginal rights guaranteed by section 35 of the Constitution Act, 1982, to which the limitation clause of section 1 of the Charter does not apply. Courts never invent notwithstanding clauses because by doing so they would deprive themselves of jurisdiction. Limitation clauses are an aspect of judicial scrutiny while notwithstanding clauses are its antithesis.

The international treaties mentioned contain derogation or notwithstanding clauses that are clearly not limitation clauses. They, along with the Canadian and Quebec charters, were all adopted in the wake of the Universal Declaration of Human Rights, enshrined by the newly minted United Nations in 1948 to reaffirm the dignity of human beings after the horrors of World War II. The Universal Declaration does not contain a notwithstanding clause. However, it does limit the definition of some fundamental rights, as in article 14:

1. Everyone has the right to seek and to enjoy in other countries asylum from persecution.
2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Such restrictive definitions, which can also be made by the courts, can have the effect of a notwithstanding clause. On the other hand, courts, including the Supreme Court of Canada, have also often expanded the generally understood definitions of fundamental rights. Such unexpectedly expanded interpretations may trigger the use of the notwithstanding clause by politicians uncomfortable with them, which is the democratic justification for section 33 in Canada.

For example, the Supreme Court of Canada, following the U.S. Supreme Court, greatly expanded its definition of the constitutionally protected expression in section 2 of the Charter to cover commercial speech in advertising by business entities a few years after the adoption of the Charter. Simultaneously, it gave corporations, as well as labour unions and nonprofit organizations, the right to the protection of the Charter, which was also unknown in Canadian law in 1982. These actions triggered Quebec’s use of the notwithstanding clause to protect its language legislation.⁵

The notwithstanding clause in Canada

The progressive Saskatchewan government led by Tommy Douglas did not wait for the UN’s Universal Declaration of 1948. It adopted the Saskatchewan Bill of Rights a year earlier. This was the first human rights legislation enacted in the Commonwealth since the English Parliament’s original Bill of Rights in 1689. It was also the forerunner of modern human rights legislation in Canada.

The Saskatchewan Bill of Rights continues to be in force, through incorporation into the Saskatchewan Human Rights Code, the provincial statute protecting human rights since 2018. The 1947 Bill of Rights did not have a notwithstanding clause. The Human Rights Code does, in section 52, and it is even more sweeping than section 33 of the Charter since it may apply to all guaranteed rights without exception and without any time limit. The same is true of the Ontario Human Rights Code, enacted in 1962, in section 47, and Quebec’s Charte des droits et libertés de la personne, adopted in 1975, in section 52.

Canadian law is riddled with notwithstanding clauses. At the federal level, the Canadian Bill of Rights, which applies only to federal legislation and was adopted by Parliament under the Diefenbaker government in 1960, is no different. It contains a notwithstanding clause in section 2 which is as wide-ranging as the provincial clauses. Indeed, section 33 of the Charter may be seen as progress when compared to these earlier efforts because it is limited to a five-year period unless renewed and because it can only impair a restricted number of rights in the Charter, although these are the most fundamental.

The single use of the notwithstanding clause in the Canadian Bill of Rights came in the War Measures Act, which was invoked in the October Crisis of 1970. This act had been adopted in 1914 and was in effect in both world wars. It was used in peacetime in 1970 because of an apprehended insurrection in Quebec. This measure, which suspended habeas corpus for all the citizens of Canada, is now generally seen as excessive. The most notorious user of the notwithstanding clause was Pierre Elliott Trudeau.

In 1960 the Bill of Rights had amended the War Measures Act to insert a pre-emptive notwithstanding clause in it. This version was the most far-ranging notwithstanding clause in Canadian history since it sought to shield not only the War Measures Act itself from scrutiny, but also all police or military action which derived from it. Section 33 of the Charter does not go that far, since it only protects legislation, which includes regulations, but cannot be used to prevent people from getting remedies against executive action that is otherwise incompatible with the Charter.

It has been commonplace since the adoption of the Charter for abusive police measures to be struck down by the courts even if the sections of the Criminal Code that authorize them are unchallenged. It may therefore be asserted, although it has not yet been decided, that administrative or state action that is not compatible with the Charter cannot be protected by a notwithstanding clause even though its authorizing legislation is.

The judicial scrutiny of laws or regulations is clearly distinct from judicial control of administrative action, such as inspections by Quebec’s Office de la Langue Française under Law 96, adopted in 2022. Law 96, which substantially amended Law 101, the Charter of the French Language adopted in 1977, is at the time of writing before the Superior Court. If this view is correct, specific inspections by the Office de la Langue Française could be successfully challenged under the Charter even if the notwithstanding clause protecting Law 96 turns out to be valid.

Human rights and constitutional democracies

Seven English Canadian premiers agreed to the Charter of Rights and Freedoms in 1981 only because the notwithstanding clause was included. That package became known in English Canada as the Kitchen Accord, and in Quebec, which was excluded from the accord, as the Night of the Long Knives. Widely different perspectives on a foundational constitutional moment were apparent at the outset. More than 40 years later, this polarization has not been resolved. It has crystallized around the use of the notwithstanding clause.

It was clear at the time that what became section 33 of the Charter was a key element of the accord which allowed the federal government to obtain substantial support of the provinces, which had been required by the Supreme Court in the Patriation Reference that came down shortly before the final negotiations.⁶

Trudeau Senior briefly defended the notwithstanding clause he agreed to include in the constitutional reform package negotiated in November 1981 – which became the Constitution Act, 1982 – since his use of the notwithstanding clause in 1970 had not been controversial.

Trudeau changed his position when a few months after the Constitution Act, 1982, was signed by Queen Elizabeth on April 17, René Lévesque’s National Assembly inserted a notwithstanding clause into each of Quebec’s hundreds of laws as a form of political protest. The Supreme Court validated Lévesque’s use of section 33 almost unconditionally in the Ford case in 1988, which holds as the applicable precedent to this day. It refused, however, to allow Lévesque to make the notwithstanding clause retroactive to April 17, 1982, and it declared the section of Quebec’s Charter of the French Language which had been challenged in that case invalid under the Quebec Charter because Lévesque had not used Quebec’s own notwithstanding clause in that charter, section 52.

By this time Quebec had a Liberal government led by Robert Bourassa, who had let Lévesque’s numerous notwithstanding clauses lapse. Bourassa nevertheless added one to Law 101 after the Ford decision as a short-term stopgap measure on the issue of the language of commercial signs. This infuriated English Canada and significantly contributed to the demise of the Meech Lake Accord, which Trudeau Senior actively opposed. From that point, the distinct society and notwithstanding clauses became intertwined. Quebec was denounced in English Canada as a society where distinct meant illiberal.

Interestingly, the notwithstanding clause is one of the few longstanding disagreements between Trudeau Senior and his trusted lieutenant Jean Chrétien, who in 1981 was the Justice Minister who negotiated with the provinces on his behalf. Chrétien has always defended the notwithstanding clause. According to him, in 1992 Trudeau blamed him for the notwithstanding clause, saying, “You gave them that.” Chrétien replied, “Sorry, Pierre. I recommended it. You gave it.”⁷

This disagreement reflects the difference between political and legalistic notions of constitutional democracy. In the United Kingdom, the struggle against royal power was ultimately understood in terms of parliamentary supremacy: the elected House of Commons, not the King’s judges, were thought to be the best guarantors of liberty.

By contrast, the American Constitution of 1787 placed the judicial branch in a coequal relationship with the executive and legislative branches. The Bill of Rights that was added to it a couple of years later was designed to restrain both. The American Founders, influenced by political philosophers of the French Enlightenment, rejected British-style parliamentary supremacy.

In 1803 the U.S. Supreme Court, in the celebrated case of Marbury v. Madison, decided that this structure of the Constitution gave the court the implicit power of judicial review that could lead it to declare federal laws that were incompatible with the Bill of Rights or other parts of the Constitution null and void. Marbury is regarded as the single most important decision in American constitutional law. It established that the U.S. Constitution is actual law, not just a statement of political principles and ideals, unlike the contemporaneous French Declaration of the Rights of Man. This was accepted by the political class. French courts did not reach that point until the latter half of the 20th century.

A few years after Marbury, the British Parliament created the Judicial Committee of the Privy Council to serve as the highest court of the Empire. The Judicial Committee followed the lead of the U.S. Supreme Court and assumed as a matter of course that it could strike down colonial legislation incompatible with British laws – something the House of Lords, the highest court in the British Isles, could not do for lack of a written constitution in the United Kingdom. Since Canada’s founding constitution, the British North America Act, was an imperial statute, federal or provincial laws thought to be “repugnant” to it could be struck down. The tradition of constitutional judicial control over both the executive and legislative branches was therefore long set in Canada before the adoption of the Charter of Rights, which greatly reinforced it by giving courts the ability to strike down laws based on substantive values, not merely which level of government had jurisdiction to enact them.

The insistence by most premiers from English Canada that a notwithstanding clause be included in the Charter of Rights was therefore a throwback to the British legacy of parliamentary supremacy. The premiers opposed the massive transfer of power to the judicial branch which had taken place in the United States almost two centuries earlier. This transfer of power had also partly taken place in Canada since 1867 because the Judicial Committee played a great and often critical role in shaping the distribution of powers in Canadian federalism, often to the advantage of the provinces.

It was clear from the American example that a Charter of Rights would greatly increase judicial power. The notwithstanding clause was the last hurrah of the British system in which bills of rights were seen as counterweights solely to the executive branch. A Charter of Rights that would replace the supremacy of Parliament with the supremacy of the constitution brought in a considerably different constitution that relies more than ever on an independent and legitimate judiciary. Would-be authoritarian governments that seek to weaken the rule of law in a democracy attack the independence of the judiciary by changing the process for naming judges (Poland and Hungary), attempt to limit the jurisdiction of the courts (India), or try to enact unlimited notwithstanding clauses that would apply to the entire constitution (Israel).

Canada is heir to the most significant developments in the history of constitutional democracy in the Western world. The issue here has been complicated by Quebec’s efforts at self-determination. Quebec now sees itself as a distinct nation rather than a mere distinct society. This has legal consequences, because a distinct society is not a concept known to the law while peoples and nations have the right of self-determination. Law 99, which proclaimed Quebec’s right of self-determination, was declared valid in its entirety by the Quebec Court of Appeal in 2021.⁸ Quebec now in effect equates the notwithstanding clause with internal self-determination.

This is really a battle of two nationalisms in legal clothing. One of the most potent tools of Canadian nationalism is to deny its own existence and to claim that Canada has moved beyond such a primitive state of political consciousness while Quebec has not. This is a favoured ideological position of the Trudeau political dynasty. From Quebec’s perspective, it is a Canadian Big Lie, and the Canadian Charter, as interpreted by the Supreme Court, is often seen as the product of an alien form of nationalism. Another Big Lie in Quebec’s view is that Quebec can join Canada’s so-called postnationalist project without renouncing its own national identity.

This very basic misunderstanding is so deep outside Quebec that even moderate forms of Quebec nationalism open to multiracial diversity are frequently distorted. Quebec’s basic laws on language and secularism are routinely condemned in the House of Commons or in national political debate as being tinged with racism.

One particularly silly statement came from Prime Minister Justin Trudeau in response to Law 21 on secularism when he said that Canadian law does not tell women how to dress, when in fact it does in very many ways from construction wear to army uniforms. Such statements are often seen in Quebec as expressions of a deluded form of nationalism that the notwithstanding clause, provided by some sort of poetic justice, can brush aside. Freedom of religion of teachers is ranked lower than freedom of conscience of children in Quebec, and that is a justifiable and ethical position to take in a modern liberal society, whatever pious Canadian wokism says. Frequent accusations of racism and intolerance are widely seen as a form of intellectual mediocrity that disqualifies those who make them from Quebec political discourse because they are perceived to be reflections of Canadian irrationality.

Ultimately, the notwithstanding clause is a safety valve for Canadian unity. Efforts to shut it down or to make it more difficult to use only reinforce the argument that Canada is intolerant of its own diversity in its wilful lack of understanding of the unique situation of Quebec.⁹

Continue reading “Safety Valve for Canadian Unity” →