After the Pandemic: Competitive or Cooperative Federalism?
In Canada, the debate about temporary restrictions on mobility and other rights has been largely ruled by public health factors. Sooner or later, it will shift to the Charter of Rights and Freedoms enacted by the current prime minister’s father.
In the effort to use physical distancing to stop the spread of COVID-19, politicians and public health officials have made frequent appeals to our sense of community. Phrases like “we’re in this together” and “protect yourself and others” resonate with our sense of individual responsibility for public health and safety. We have been asked to resist self-interested impulses to socialize in favour of protecting not just ourselves but our neighbours.
If the empty parks, restaurants, offices, and campuses are any indication, there has been an enormous amount of goodwill from the public regarding compliance with physical distancing rules.
The restrictions on these rights vary considerably depending on the jurisdiction, which creates an inconsistent application of Charter rights.
Of course, governments have not relied solely on moral suasion, a form of soft power, to uphold the rules. Police in different jurisdictions have issued tickets and fines for non-compliance. in April, Ottawa issued over 100 tickets for violations of a bylaw on emergency orders related to COVID-19.
It has been suggested that the use of emergency orders, to the extent that they restrict our ability to move across provincial borders and gather together in groups, run afoul of our Charter rights; of our constitutional rights. Our freedoms of assembly and mobility, for example, have been restricted as never before. Further, the restrictions on these rights vary considerably depending on the jurisdiction, which creates an inconsistent application of Charter rights. There have been police checkpoints at some provincial borders but not others. At these checkpoints, some travelers get turned away but some do not. As provinces re-open at different paces, freedoms to gather and travel are restored on different schedules.
The interjurisdictional inconsistencies with respect to restrictions on civil liberties make complete sense to the extent that they reflect the significant differences among local, provincial, territorial, and regional jurisdictions with respect to the presence and spread of COVID-19. Locations that have been deemed “hot spots”, including Montreal, will face restrictions longer than other parts of Quebec. The restrictions on rights are being justified, in public at least, by the need to protect communities from the spread of COVID-19.
However, these emergency orders have, for the most part, not been tested in court. Once the acute public health crisis is behind us, much of our energy will shift toward a critical analysis of how governments managed the COVID-19 crisis.
There will be intense scrutiny of economic stabilization measures, including the Canada Emergency Response Benefit (CERB), as well as supports for Indigenous communities, small businesses, the agricultural sectors, students, and others.
Elected governments and public health officials will face questions about the timing and consistency of public health warnings, as well as the quality and consistency of treatment and care throughout the pandemic for conditions unrelated to COVID-19. As well, governments across the country will face questions about their compliance with the Canadian Charter of Rights and Freedoms. Some advocacy groups have begun this work already.
Most of the coverage on non-Charter compliance because of the COVID-19 crisis has pertained to emergency limitations of inter-provincial and even in-province travel. For two months, the Sureté du Québec stopped thousands and thousands of cars crossing the five bridges between Ottawa and Gatineau. One woman in Nova Sco
tia was prevented from traveling to Newfoundland for the funeral of her mother.
The Charter is clear in Section 6 (mobility rights) that Canadians and permanent residents have the right “to reside in any province” and to “pursue the gaining of a livelihood in any province.” The constitutional override in the Section 33 notwithstanding clause does not apply to Section 6, as it does to Sections 2, and 7 to 15 on fundamental and legal rights. However, governments would likely pursue a defence of emergency orders under Section 1, the reasonable limits clause. There is bound to be a legal battle on this, probably ending up in the Supreme Court.
Given the possibility of a second wave of the pandemic, which could force us all back into lockdown at some point in the future, answers to the questions above cannot come soon enough. The nature, substance and seriousness of these questions has the potential to trigger a new era of constitutional politics in Canada centered around a critical discussion of the role of the state, its responsibilities to citizens, and the parameters of its power.
A constitution has many purposes, but a central one is to define the mandate and powers of governments. The COVID-19 era has seen an expansive role for the state in the lives of Canadians. There could be a strong appetite for some of this to continue. For instance, there is support for CERB payments to transform into a basic income program, which would have transformative implications for other elements of the social safety net. On the other hand, suppressions of Charter rights are not popular, particularly when the time frame is medium- to long-term in nature and there are significant inconsistencies in the applications of Charter rights.
The COVID-19 recovery and rebuilding period will necessitate discussions about the constitutional division of power (read: constitutional division of labour) because no order of government can solve this alone. Many of the issues that are arising, including the notion of universal paid sick leave, are within provincial jurisdiction, but will never advance without federal support (read: federal money).
So, despite the exhaustion following the constitutional debates that dominated the 1980s and 90s, we are headed into another such round of talks. The urgency is different this time in the sense that there is not a crisis around Quebec’s place in the federation, but there is an intergovernmental conflict in the offing, waiting to explode.
The economic impact of COVID-19 will create even more urgency around conversations that had been happening already regarding the fairness of the equalization formula. The growing sense of resentment in the West will add to this urgency.
The constitutional dialogue will be informal rather than formal. We won’t change the wording, because the political will for that won’t be there, but we will talk about what the wording means. We could enter into a new stage of cooperative federalism, in which governments share responsibility and cost, or we could go in the opposite direction of competitive federalism in which governments pass responsibilities and costs back and forth like hot potatoes. Either way, Charter politics and intergovernmental affairs are going to be hot again.
The nature, substance and seriousness of these questions has the potential to trigger a new era of constitutional politics in Canada centered around a critical discussion of the role of the state, its responsibilities to citizens, and the parameters of its power.
Contributing Writer Lori Turnbull, co-winner of the Donner Prize, is Director of the School of Public Administration at Dalhousie University.
Justin Trudeau watches in his home study as the House committee discusses Ottawa’s pandemic response—much of it with the provinces, where a new federalism, either cooperative or competitive, may emerge.