When Finance Minister Chrystia Freeland testified before the Public Order Emergency Commission in late November, she emphasized the economic concerns that she and her officials had confronted during the illegal border blockades and occupation of Ottawa in early 2022. She indicated that senior officials in Washington told her Canada’s reputation as a reliable trading partner was in serious jeopardy. Several CEO’s of Canada’s Big Six banks also warned her that many foreign investors were thinking of pulling out entirely. The head of one bank told her a major American investor had warned him that he would “not be investing another red cent in your banana republic.”
Clearly the disgruntled investor misunderstood the term. The expression ”banana republic” was originally coined by the American writer O’Henry to mean a country economically dependent on one product (usually bananas) and usually in Latin America, run by a corrupt despot who profited at the expense of his fellow citizens. However the term soon came to mean any country run by a corrupt and ruthless strongman, often mentally unstable, who runs roughshod over citizens’ rights, democratic institutions, the constitution and the rule of law and, in the worst cases, uses the military against his own people in order to stay in power. (Nicolai Ceausescu of Romania, Idi Amin of Uganda and Muammar Gaddafi of Libya immediately come to mind, as do Alexander Lukashenko of Belarus and Jorge Videla, the military coup leader who orchestrated the “disappearance” of some 30,00 Argentinians.)
Obviously that definition does not apply to the situation in Canada in January 2022. It was the protesters who violated the rights of other citizens and flouted the rule of law, not the federal government or the prime minister. And it was the lack of aggressive police action or military intervention that the American financier was condemning. Indeed, as the Commission has learned, the federal government’s decision to invoke the Emergencies Act was only taken with great reluctance, after weeks of seeming chaos, having categorically ruled out any involvement by the military.
Needless to say, the investor might have considered looking closer to home, where former President Donald Trump wreaked havoc on democratic institutions from the Supreme Court to the electoral system and infamously employed the National Guard against peaceful protestors, all so that he could walk to a church for a brief photo op without having to confront them. Trump’s own former Defense Secretary, James Mattis, said he was “angry and appalled” at the use of the military on American soil, while Nancy Pelosi, the House Speaker, asked “what is this, a banana republic?” on national television. In short, even established democracies can be at risk. While the recent defeat of almost all of the Trump-sponsored Republican candidates in the mid-term elections is encouraging, it is worth noting that many did not lose by much. Even Heschel Walker, arguably one of the most egregious choices in history, was able to force a runoff ballot in Georgia before his Democratic opponent finally managed to eke out a 51% majority.
See in this context It might appear that all is well here in Canada and we are in no danger of meriting that derogatory ‘banana’ description. Except, actually, that we are more vulnerable than we think. The danger is not in Ottawa. It lies in several of the largest and most influential provinces, where premiers and governments are quite simply running amok. This is not simply right-wing populism, although that would be bad enough. But it seems we have now reached the stage where democratic institutions, Charter rights and the constitution itself are being ignored with seeming impunity in Quebec, Ontario and Alberta. In an established democracy like Canada, this creeping illiberalism needs to be seen for what it is and widely criticized by political leaders of all stripes, not ignored, if we are to continue to avoid widespread ridicule.
Take the case of Quebec, where popular folksy premier Francois Legault knows only too well that two of his key pieces of legislation – Bill 21, the so-called secularity bill restricting religious symbols, and Bill 96, imposing new linguistic controls – would be ruled unconstitutional by the courts, since both are blatant violations of Charter rights. His solution? Invoke the notwithstanding clause pre-emptively, to shield them from such a ruling. (A Quebec Superior Court judge actually described Bill 21 as a “cruel violation of Charter rights” before reluctantly admitting he could do nothing about it because of the notwithstanding clause.) As many observers have stressed, this was never the intended purpose of the clause, and in addition it was anticipated that it would be used very rarely, not twice in less than four years.
Meanwhile in Ontario premier Doug Ford appears to be in some sort of contest with Legault to see who can use it the most in the shortest period of time. In four years Ford has invoked the clause no fewer than 3 times. It is also difficult to know which of his recent bills is the most offensive violation of democratic principles. From his intervention in the middle of an ongoing municipal election to arbitrarily reduce the number of Toronto city councillors by half, and his blatant attempt to limit criticism of his party’s record during elections by restricting third party advertising, to his attempted abrogation of unions’ rights to strike and his unbelievable “strong mayors” legislation which allows a mayor to impose a decision with the support of only one-third of councillors, the premier appears to have decided his majority allows him to do as he likes.
Which brings us to the clearly delusional premier of Alberta. Danielle Smith’s bizarrely-named “Alberta Sovereignty Within a United Canada Act” is little short of a “full frontal attack on the rule of law” according to her predecessor, former premier Jason Kenney, who resigned his seat in the legislature the day it was tabled. The bill may or may not allow the cabinet to arbitrarily negate statutes without consulting the legislature, since there have been multiple conflicting explanations of this section of the act by Smith and her ministers. ( Most entertaining in a perverse sort of way was the conundrum facing Tyler Shandro, Smith’s former UCP leadership opponent and current justice minister, as he twisted himself in knots to support a bill which he described as outrageous nonsense only months earlier. ) There is no doubt, however, that it is intended to allow the government of Alberta to decide (on what basis is unclear, since referral to the courts will be prohibited) that a federal law is “harmful” to the province, and therefore need not be obeyed. What is more, the bill envisages that the provincial government will tell/order municipal governments, school boards, police forces and corporations to ignore such “harmful” federal laws. Areas in which Smith thinks this could be applicable include federal carbon pricing, environmental protection, fertilizer and firearms legislation.
And so, in addition to being unconstitutional and illegal, many of Smith’s proposed measures, if not all, are an attack on federalism itself. Apparently she has decided that it is easier to simply ban federal laws in areas of legitimate federal jurisdiction than it would be to convince other provinces to agree to a constitutional amendment to suit Alberta. And it is worth noting that premier Scott Moe, her less well-known sidekick in Saskatchewan, (population 1 million or far less than the city of Toronto) has actually paved the way by introducing a farcical Saskatchewan First Act in order to give Saskatchewan recognition as a “nation.”
This nonsense has got to stop. Academics and journalists can criticize, but it is up to elected politicians of all political stripes, at all levels of government, to denounce these premiers and their dangerous attempts to override democratic institutions before we do indeed appear to others to be a banana republic.
