Charter of Rights clause used, abused by populists
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 groups it was designed to protect.
Twenty years ago, as a Reform MP, Jason Kenney advocated the notwithstanding clause to get around a Supreme Court decision protecting gay rights. As Alberta UCP leader, he has led a populist charge to force schools to notify parents if their children join a gay-straight alliance.
Quebec is the latest province to embrace a populist government, elected at least in part on promises to cut immigration by 20 per cent and subject recent immigrants to Frenchlanguage and values tests. The CAQ will prohibit civil servants in positions of authority — including judges, police officers and teachers — from wearing religious symbols such as hijabs and turbans.
Incoming premier François Legault’s willingness to invoke Section 33 is not so capricious as Ford’s. The province has been wrestling with the question of “reasonable accommodation” for more than a decade. An inquiry by the Bouchard-Taylor Commission found an inflated perception of religious and cultural accommodation to be much ado about nothing.
The findings did little to quell Quebecers’ anxiety over diversity. Courts suspended parts of a religious neutrality law introduced by the Liberals, which attempted to force people to uncover their faces to receive certain public services, days before it went into effect.
Teachers who wear head scarves or turbans are not a threat to Quebecois culture, nor to separation of religion and government. They are positive role models in an inclusive society.
It is fundamentally wrong-headed to safeguard religious neutrality by forcing provincial employees to choose between their faith identity and their job. But there are few who really believe Legault’s promise is about separation of church and state. A crucifix will remain hanging over the National Assembly.
It is a populist attack on Muslims and Sikhs, pure and simple, and an example of the very kind of discrimination the Charter exists to prevent.