Not­with­stand­ing clause an abuse of power

Winnipeg Free Press - - THINK TANK - JEF­FREY B. MEY­ERS

REMIER-DES­IG­NATE of Que­bec, 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.

The early sig­nals of both the Ford and Le­gault pre­mier­ships sug­gest that Canada’s two largest prov­inces have fallen un­der the spell of a rightwing 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.

PHave 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 rightwing pop­ulism has played out to a rapt global au­di­ence in the de­ba­cle sur­round­ing the Trump ad­min­is­tra­tion’s nom­i­na­tion of Judge Brett Ka­vanaugh.

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 Amer­ica sneez­ing and Canada catch­ing a cold, are true.

In fact, in the con­text of glob­al­iza­tion, Amer­ica’s re­al­i­ties are gen­er­al­i­ties. So much so that 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 Québé­cois 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 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’ judg­ments en­forced.

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

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