Af­ter the Pan­demic: Com­pet­i­tive or Co­op­er­a­tive Fed­er­al­ism?

Policy - - In This Issue - Lori Turn­bull

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.

Lori Turn­bull

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.

Adam Scotti photo.

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.

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