ROBIN BARANYAI

The Expositor (Brantford) - - OPINION -

What was built as a safety valve in the Char­ter of Rights and Free­doms — an in­stru­ment of last re­sort — has be­come just one more ar­row in the pop­ulist quiver. But this one has a poi­son tip.

Since its in­cep­tion in 1982, the not­with­stand­ing clause has been used spar­ingly, most no­tably in Que­bec to as­sert the pri­macy of French­language rights. The newly elected Coali­tion Avenir Québec (CAQ) has sig­nalled its in­ten­tion to use it again, this time in a clumsy sop to re­li­gious neu­tral­ity.

Sec­tion 33 of the Char­ter al­lows fed­eral, pro­vin­cial and ter­ri­to­rial gov­ern­ments to en­act leg­isla­tive agen­das, not­with­stand­ing the ob­jec­tions of the courts, for up to five years. The clause was meant to be used thought­fully, and spar­ingly. Cana­di­ans do not take their fun­da­men­tal rights and free­doms lightly.

Then came On­tario premier Doug Ford’s beef-wit­ted cru­sade to slash Toronto city coun­cil in the mid­dle of an elec­tion. When a court ruled it vi­o­lated the free­dom of ex­pres­sion of both can­di­dates and vot­ers, Ford whipped out Sec­tion 33 and a ham­fisted prom­ise to use it again, if “un­elected” judges stood in the way of his man­date.

The move was con­demned by ar­chi­tects of the not­with­stand­ing clause, in­clud­ing former prime min­is­ter Jean Chré­tien, re­tired On­tario chief jus­tice Roy McMurtry and former Saskatchewan premier Roy Ro­manow. “It was not de­signed to be used by gov­ern­ments as a con­ve­nience or as a means to cir­cum­vent proper process,” they wrote in a joint state­ment.

But the ar­chi­tects did not an­tic­i­pate how a rise in pop­ulism would up­end the norms of mea­sured gov­er­nance. Therein lies their great­est fail­ure, and the Char­ter’s great­est weak­ness. In a per­versely cir­cu­lar loop­hole, the Char­ter it­self can be wielded to di­min­ish the rights and free­doms of

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