First On­tario, now Que­bec: The notwith­stand­ing threat

Sherbrooke Record - - EDITORIAL - By Jef­frey B. Mey­ers Lec­turer, Fac­ulty of Law, Thomp­son Rivers Univer­sity

Newly elected Que­bec Pre­mier François Le­gault has an­nounced his in­tent to use Sec­tion 33 of the Con­sti­tu­tion of Canada, more of­ten re­ferred to as the notwith­stand­ing clause, to pro­hibit civil ser­vants from wear­ing re­li­gious sym­bols when in­ter­act­ing with the pub­lic.

It’s an alarming an­nounce­ment to me, as a lawyer and fac­ulty mem­ber at a law school. Here’s why.

Le­gault’s in­vo­ca­tion of the clause, just weeks af­ter On­tario Pre­mier Doug Ford’s ul­ti­mately un­nec­es­sary threat to use it in his le­gal bat­tle to shrink the size of Toronto city coun­cil, sent a sig­nal to the prime min­is­ter and other pre­miers: On­tario and Que­bec do not play by the rules.

Le­gault is­sued his threat even ear­lier out of the gates than Ford did, fol­low­ing a sim­i­larly stun­ning pro­vin­cial elec­tion re­sult.

He’s mus­ing about us­ing the notwith­stand­ing clause to short-cir­cuit the Supreme Court of Canada and the Charter of Rights and Free­doms on a mat­ter of fun­da­men­tal re­li­gious free­dom and free­dom of ex­pres­sion.

While the two NDP gov­ern­ments in Bri­tish Columbia and Al­berta duke it out over pipe­lines on the West Coast, cen­tral Canada is threat­en­ing the tenets of democ­racy.

Right-wing pop­ulism

The early sig­nals of both the Ford and Le­gault pre­mier­ships sug­gest that Canada’s two largest prov­inces have fallen un­der the spell of a right-wing pop­ulism of the type as­so­ci­ated with Don­ald Trump and Brexit.

Cen­tral to this style of pol­i­tics is its to­tal dis­re­gard for the rule of law on the premise that their gov­ern­ment’s elec­toral man­date means that they can do what­ever they please, in­clud­ing ex­ert­ing their will over mu­nic­i­pal gov­ern­ments.

Have no il­lu­sions, this is an au­thor­i­tar­ian ten­dency and presents a clear and present dan­ger to the rule of law. In Canada, the most ob­vi­ous av­enue of ex­pres­sion for this ten­dency is through the in­vo­ca­tion of the notwith­stand­ing clause.

An at­tempt to marry the rule of law with right-wing pop­ulism has played out to a rapt global au­di­ence in the de­ba­cle sur­round­ing the Trump ad­min­is­tra­tion’s nom­i­na­tion of Judge Brett Ka­vanaugh.

Cul­ture wars

Al­though the cul­tural pol­i­tics of Amer­ica are dif­fer­ent than they are in Canada, no coun­try is closer to the U.S. eco­nom­i­cally and so­cially than Canada. Pierre Trudeau’s old adage about the mouse at the foot of the ele­phant, and the old say­ing about Amer­i­can sneez­ing and Canada catch­ing a cold, are true

In fact, in the con­text of glob­al­iza­tion, Amer­ica’s re­al­i­ties are gen­er­al­i­ties. So much so, the cur­rent main­stream­ing of ex­trem­ist pop­ulist pol­i­tics not only in the An­glo-amer­i­can world, but across the globe, is borne out by the ev­i­dence.

Free­dom House, a well-re­spected and still ob­jec­tive U.S. gov­ern­ment agency with a sto­ried his­tory that ad­vo­cates for democ­racy and hu­man rights, de­scribes 2017 as the 12th con­sec­u­tive year of de­cline in global free­dom as mea­sured by net de­clines in po­lit­i­cal rights and civil lib­er­ties in 71 coun­tries with only 35 reg­is­ter­ing gains.

It will be in­ter­est­ing to see how things look in 2018. I am not op­ti­mistic.

Right-wing, of­ten xeno­pho­bic and na­tion­al­ist pol­i­tics char­ac­ter­is­tic of down­ward trends in global democ­racy and the rule of law are ap­par­ently be­gin­ning to thrive in Canada. Wher­ever there is a de­clared willing­ness of elected of­fi­cials to es­cape, short- cir­cuit or oth­er­wise un­der­mine courts, Con­sti­tu­tions and es­tab­lished stan­dards of con­duct, alarm bells should sound.

It’s es­sen­tial for Cana­di­ans to un­der­stand we’re not im­mune from sim­i­lar abuses of our in­sti­tu­tions and our laws. To­day, what we see oc­cur­ring in Trump’s Amer­ica is part of an alarming global ten­dency. It can hap­pen here and any­where.

Al­though some com­men­ta­tors have cel­e­brated the ap­par­ent demise of the Parti Que­be­cois in that prov­ince’s re­cent elec­tion, the Le­gault vic­tory speaks to some of the most na­tivist and re­ac­tionary im­pulses of Que­be­cers by redi­rect­ing pop­u­lar pol­i­tics along the lines of eth­nic rather than civic na­tion­al­ism.

We must not be smug or look down at Amer­i­cans for their crass po­lit­i­cal cul­ture and race to the bot­tom. I worry that what we’re now ex­pe­ri­enc­ing in Canada’s two ma­jor prov­inces is an ex­pres­sion DEAR EDI­TOR:

I‘Na­tivist, re­ac­tionary’

of a sim­i­lar down­ward tra­jec­tory at high­est level of our pol­i­tics.

As a fed­eral elec­tion looms next fall, Cana­di­ans must be alert to the risk posed to our en­tire le­gal and con­sti­tu­tional or­der if the notwith­stand­ing clause is rou­tinely in­voked and used to short-cir­cuit the ap­pli­ca­tion of Charter rights in Canada’s most pop­u­lous prov­inces.

The notwith­stand­ing clause is a dan­ger­ous de­fect in Canada’s le­gal or­der. Ab­sent a con­ven­tion of not trig­ger­ing it rou­tinely, there would in­deed be a con­sti­tu­tional cri­sis. A con­sti­tu­tional cri­sis oc­curs when it is no longer cer­tain whether the Con­sti­tu­tion can be re­lied upon and courts’ judge­ments en­forced.

In many coun­tries, in­clud­ing our own, we are on the brink of just such a cri­sis.

t seems that the pro­duc­ers of CBC News­world have de­cided that we have be­come part of the United States of Amer­ica. It seems that ev­ery press con­fer­ence tak­ing place in the White House is streamed live to us. It seems that ev­ery ap­pear­ance of pres­i­dent Trump is shown to us in real time and then cov­ered again in clips on the news broad­casts. It seems that ev­ery ac­ci­dent, shoot­ing and a va­ri­ety of other in­ci­dents oc­cur­ring in our neigh­bour­ing coun­try, plus news con­fer­ences given by the rel­e­vant po­lice, fire and other au­thor­i­ties comes to us live when a news an­nounce­ment would cer­tainly do the job. All this is to the detri­ment of in­form­ing us of events in our own coun­try or in­deed of those else­where in the world. One has to ask why.

For­tu­nately, RDI does a bet­ter job and I of­ten turn there in­stead.


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