Char­ter of Rights clause used, abused by pop­ulists

The London Free Press - - COMMENT - ROBIN BARANYAI

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.

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