We Already Have A Constitutional Crisis

Last week, Alberta conservatives in the governing UCP, elected a new leader, Danielle Smith, who was sworn in as premier on Tuesday. She rode to power touting the proposed Alberta Sovereignty Act which she almost immediately started walking back after her leadership victory, other more pressing matters to set on fire. Still, the idea ignited a disquiet throughout the rest of the country, fretting over yet another ‘constitutional crisis’ for those who lived through the agonizing referenda of 1995 and 1980, the peaks and heartbreak of Quebec nationalism.

Me? I say, ‘Bring on the constitutional crisis, baby! Bring it on!’

As a city dweller, I think it’s well past time Canada reimagines its mode of governance. Much has changed since 1867 when a majority of the population was rural, and the constitutional notion of municipal powers didn’t warrant much more than an after-thought and throw-in. A subsection of section 92 that lays out the areas of jurisdiction exclusive to the provinces, number 8, Municipal Institutions in the Province, mainly ‘the incorporation of municipalities and the design of municipal systems’.

That’s pretty much all they wrote. A ‘creatures of the province’ doctrine evolved from there, to my very untrained mind, arguably, more by legal rulings rather than original legislative intent. I mean, Dillon’s Rule? A U.S. statute from 1872 cited in a Supreme Court of Canada ruling in 1993 in case about sidewalk t-shirt vending in Toronto. Go figure. Municipalities as ‘creatures of the courts’. Precedent set. Established precedent.

Because the shape, form and function of cities great and small are subject to provincial jurisdiction, that shape, form and function differs throughout Canada. Civic governance varies from province to province. What’s good for Moose Jaw, Saskatchewan, isn’t necessarily good for… a-hem, a-hem… Gander, Newfoundland. (Wait… Wait… Wait…) In a country now predominantly urban, there is no uniform access to or guarantee of local democratic representation and participation.

Now, I’m no Perry Mason, my legal knowledge so questionable I can’t even name a more recent fictional lawyer, but this sounds almost unconstitutional. If cities had any constitutional standing which, evidently, they don’t, according to recent judgements. They should, a constitution being a living document and all, nothing ever absolute, certainly not absolute in terms of a 150+ year-old world view. But they don’t. But they should. But they don’t.

“Municipalities are entirely the creatures of provincial statutes,” Supreme Court Justice Frank Iacobucci wrote in 1993. “Accordingly, they can exercise only those powers which are explicitly conferred upon them by a provincial statute.”

Again, in 1997, dismissing the former Toronto municipality East York’s case against forced amalgamation by the province, Ontario Court Justice Stephen Borins reasoned:

“It is clear from the judicial and academic authorities referred to in the respondent’s factum that there are four principles which apply to the constitutional status of municipal governments:

(i) municipal institutions lack constitutional status;

(ii) municipal institutions are creatures of the legislature and exist only if provincial legislation so provides;

(iii) municipal institutions have no independent autonomy and their powers are subject to abolition or repeal by provincial legislation;

(iv) municipal institutions may exercise only those powers which are conferred upon them by statute.”

Not so much as a judicial budge away from the 19th-century Canada Act in terms of the role and position of municipalities in the governance and legislative framework of the country.

So, let’s open up the constitution and update a few things, why don’t we.

A can of worms.

A kettle of fish.

Playing with fire.

You got yourself in one hell of a stew.

There simply isn’t that kind of political will to risk whatever fallout may come from a constitutional revisit and reworking. Certainly not on behalf of the most junior level of government, entities mentioned by the document’s writers just above Shops, Saloons, Taverns and Auctioneers. In all likelihood, that would entail a ceding of certain powers, mostly by provinces, and what sort of provincial official would be willing to do that? Especially if it favoured a place like Toronto.

As Professor Kristin Good wrote in February 2021, there are easier, less disruptive fixes, through provincial legislation. But again, what’s there to gain for the provinces, legislating more autonomy to their cities? Aside from a sense of democratic fairness and a nod to our modern reality. Cities are where the majority of the population reside. Cities are the economic engine of our federation. City governance is the closest to the ground to the residents of this country.

Even the best-intentioned provincial governments balk at any notion of true power sharing with its municipalities. In the early-50s, in establishing the political entity of Metro Toronto, Premier Leslie Frost shied away from a fully regional level of governance by stopping the boundaries of Metro at the 416 area code, sensing that the GTA in its entirety would grow in power to rival Queen’s Park. Probably not incorrectly but, equally, detrimentally, in hindsight. One just has to look at our mish-mash of regional public transit systems to wonder if there might’ve been a much better way.

What we’re left with are municipalities, hobbled and hamstrung (or neither, depending on the province), dependent on the goodwill, good wishes and good governance of what are, with no hyperbole, provincial overlords. Here in Ontario over the course of the past 25+ years, municipalities have been subject to overt malignant interference from Queen’s Park, sandwiching in a period of calculated political self-interest above all else. If cities were people, they would’ve sued to gain their custodial rights a long time ago, and probably been granted them. Unfortunately, cities aren’t people. They are just full of them.

Such a grossly democratic imbalance, I offer, has an ill-effect on our overall democracy as seen by this graphic of seat distribution in the National Assembly after the most recent Quebec provincial election.

Blue represents the increased majority of François Legault’s CAQ government, red is the reduced opposition. Note the pattern? The bigger cities, especially Montreal, with scant representation in the new government. Ontario faces a similar, if not as stark, situation after its most recent election in June. A non-big city majority government headed, ironically, by a premier from Toronto who bears nothing but enmity to the city that sent him to Queen’s Park.

So if you live in places like Toronto, Montreal, Quebec City, Laval, Gatineau, Ottawa, Hamilton, London, you have few seats at the power table, leaving your city at the mercy of whatever whims and fancies, almost always politically motivated, the provincial governments are subject to. And at the municipal level, comes a certain shrugging apathy. Why bother when the decisions your city government makes can be dismissed, disregarded and overturned, unchecked and unchallenged because of a historical quirk and rigid judicial interpretation?

It doesn’t make for a healthy democracy. If cities continue to grow in size, diversity of demographics and economic importance, the problem will only become more acute. Increasingly, ‘That’s just the way it is’ is becoming an unsatisfying response.

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