After decades of playing Charter chicken, Canada is now home to what is effectively an illiberal democracy

Monday, May 17, 2021, The Globe and Mail

There’s an elephant in the room we call Canada: our Charter’s notwithstanding clause.

Agreed to in 1981, the clause – which allows any Canadian government, federal or provincial, to override certain elements of the Charter of Rights and Freedoms – was a uniquely Canadian compromise. It was controversial from the start. We believe in civil and human rights for all, don’t we? On the other hand, in 1981, few of the nervous leaders who signed on thought it would be used often, if at all. They stressed the positive – in particular, the belief that it balanced the respective powers of Parliament and the judiciary. Furthermore, there were safeguards: It contained a five-year sunset clause, and a displeased electorate could throw out a government that sought to diminish basic freedoms.

Paradoxical though it was and remains, the notwithstanding clause mirrored familiar ways of Canadian governance. We owe our success as a country to our ability to compromise on contentious issues – to accommodate, in other words. Since Confederation, we have avoided fracture by talking and legislating ourselves into national unity. We forge political agreements that can be challenged by courts, which in turn produce the precedents of case law, which in turn lead to more successful “muddling through.” We eschew grand proclamations. We respect the principle of universal human rights. Less effective ethnically diverse countries send emissaries to learn how we tick.

Now, we may have hit the end of all that.

Forty years after the notwithstanding clause was agreed to, the government of Premier François Legault’s Coalition Avenir Québec has breached the safety assurances in which the framers put their trust. Quebec’s use of the override to legislate Bill 21, a law that deprives identifiable citizens of their freedom to co-exist and prosper equally with diverse others, has been declared constitutional. Not that Superior Court Justice Marc-André Blanchard wanted to do so. In his judgment, he used strong language in declaring that compelling individuals to choose between their religious beliefs and their employment “dehumanizes those it targets.” The judge was able to exempt English-language schools and members of the provincial Parliament – but otherwise, his hands were tied.

With Bill 21 having become law, Mr. Legault recently reopened the controversial language laws, again under the aegis of the notwithstanding clause. He also indicated his intent to change the Canadian constitution unilaterally to identify Quebec as a nation.

By dispensing with the convention that Canadians are driven by the primacy and universality of fundamental rights, Mr. Legault has effectively created an illiberal democracy at the heart of Canada: a Québécois society where some are more equal than others. In consequence, we are left with the peculiar spectacle of a country renowned for its commitment to pluralism with a constitutionally legal “rights outlier” at its centre.

In retrospect, the 1981 signers were right to be nervous about the clause. In spite of their fine statements, some provincial governments began to test how they might also benefit from it: Saskatchewan, for example, then more recently, Alberta and Ontario. But the most egregious abuse occurred in 1988, when Quebec’s then-premier Robert Bourassa seized on the override to overturn the Supreme Court’s decision that Bill 101, the law that prohibited the use of languages other than French, was an unreasonable limitation on freedom of expression. Clifford Lincoln, Mr. Bourassa’s minister of the environment, immediately resigned in protest. “In my belief,” Mr. Lincoln said at the time, “rights are rights are rights. There is no such thing as inside rights and outside rights. No such thing as rights for the tall and rights for the short. No such thing as rights for the front and rights for the back, or rights for the East or rights for the West. … There are no partial rights. Rights are fundamental rights.”

Where, then, are Canada’s leaders today? Their silence in the face of Judge Blanchard’s decision earlier this month was deafening. Past attempts to pursue constitutional change from outside Quebec have ended badly – think Meech Lake and the Charlottetown accord. No one wants to go there, especially with a possible federal election on the horizon. All the same, for the sake of the country, a possible repeal of the notwithstanding clause should be on the national front burner. If this proves impossible politically, the Quebec Court of Appeal, then the Supreme Court of Canada if necessary, must take up the case.

The chickens of “unintended consequences” have come home to roost. As the famous New Yorker cartoonist George Booth asked in a drawing featuring two conversing mastodons standing before a smoking volcano: “If we accept the unacceptable today, what’s the outlook for tomorrow going to be?”

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