Reaction to Conservative support for the notwithstanding clause

From the right (Ivison) to the left (Raj):

Most MPs come to Ottawa with good intentions, resolving to follow their conscience to make life better for their communities. Often though, they find that their conscience is not going in the same direction as their party. A decade ago, I remember Indo-Canadian Conservative MP Tim Uppal sending me a set of head scarves for my western Quebec soccer team, to wear in a solidarity protest against the Quebec Soccer Federation’s turban ban. Today, Uppal says he opposes Quebec’s Bill 21, the law that bans some public servants in the province from wearing religious symbols such as turbans to work.

Yet, earlier this week, he and the rest of the Conservative party voted in favour of a Bloc Québécois motion that called on the House of Commons to remind the government that it is solely up to Quebec and the provinces to decide on the use of the notwithstanding clause.

This is the same clause that was invoked by Francois Legault’s Quebec government pre-emptively to shield it from court challenges — which was prescient because the Quebec Superior Court judged last year that Bill 21 violates religious freedom but is beyond the reach of the judiciary. A panel of judges at the Quebec Court of Appeal is now weighing whether the bill disproportionately discriminates against Muslim women who wear the hijab (even the notwithstanding clause does not protect legislation that discriminates on the basis of gender).

I wrote to Uppal and said I was surprised at the party’s position on the use of notwithstanding. “I understand it’s popular in Quebec but we both know it’s blatant discrimination,” I said.

In reply, Uppal said that the motion was about the ability of the provinces to use the notwithstanding clause as guaranteed in the Constitution. “We are not interested in getting into a drawn-out constitutional battle. There are more important issues to focus on,” he said. It would be mildly amusing to watch political parties make age-old mistakes for the first time, if the consequences weren’t so serious. The Conservative party’s discomfort at siding with the Bloc, in pursuit of soft nationalist votes, risks alienating ethnic voters.

It is reminiscent of Justin Trudeau’s indiscretion early in his leadershipwhen he said he favoured keeping existing representation in the Senate because it was to Quebec’s advantage — a statement that did not go down well in other parts of the country where he was trying to build support. It may once have been possible to simultaneously pander to different groups on opposite sides of the same issue, but it is no longer. We have the internet now.

Uppal has been trying to reassure the World Sikh Organization that he and his party remain opposed to Quebec’s secularism law. He has said the Liberals are trying to spin a narrative that the Conservatives explicitly support the pre-emptive use of the clause.

Who knows why anyone might believe that line, except for the fact that it is demonstrably true.

The Bloc’s motion is not abstract — it relates directly to the pre-emptive use of Section 33 of the Constitution by the Legault government in its secularism and language legislation.

Sikh groups have, correctly, asserted that this erodes the Charter and suspends human rights. Uppal claims that the notwithstanding provision is a longstanding part of the Charter, which is true, but he cannot ignore that this vote empowers Legault and endorses his position. I know the arguments in favour of use of notwithstanding — and support them to a point. Stephen Harper’s former deputy chief of staff, Howard Anglin, made an impassioned argument in support of Section 33 recently, arguing that judges violated the “1982 bargain” by egregiously overreaching in their judgments. “Judges make poor gods,” he said. “Call me a stickler for democracy but I prefer the people wielding ultimate power in any society to be accountable, and, in a pinch, removable.”

He’s right. But until recently, the clause was used when politicians wanted to correct what they believed was judicial excess. Now it is being invoked (by Quebec and Ontario) at the beginning of the process to camouflage unjust laws. Federal justice minister David Lametti says that such use “guts Canadian democracy and means the Charter doesn’t exist” — a bold statement that commits his government to act.

Trudeau said in late January that Lametti is looking to refer the use of Section 33 to the Supreme Court, pending the ruling from the Quebec Court of Appeal on the religious symbols case. The prime minister’s intervention provoked a choleric reaction from Legault, who says it is up to the Quebec National Assembly to decide the laws that govern the province.

The premier argues the Canadian Charter is part of the Constitution Act that Quebec didn’t sign — an argument that ignores Quebec’s own charter, adopted unanimously by the province’s legislature in 1975, which is clear that every person has the right to full and equal recognition of his or her human rights, without distinction, exclusion or preference based on race, gender or religion. “Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impacting such rights,” it says. Legault has been discriminating against the allophones and anglophones that constitute 20 per cent of Quebec’s population because it is popular with the francophone majority, who have been persuaded by their government that the French language and Quebec culture are threatened.

The federal government has little option but to oppose such blatant injustice, but in doing so the country’s unity will likely be tested. If Lametti asks the Supreme Court to impose restrictions on the use of Section 33, it could prove explosive. The court may refuse to hear the case on the grounds of conflict of interest — Section 33 was designed to limit the power of the courts. If the top court’s anglo majority does overturn the law, it could be the casus belli the separatists have been waiting for and could send Canada hurtling toward another referendum.

In their defence, the Conservatives might argue that western premiers don’t want restrictions placed on a notwithstanding clause that has been used by Alberta and Saskatchewan.

But the real reason Conservatives voted for a Bloc motion — never a smart or admirable thing — is to pander for votes in Quebec.

They may get them, but the cost could be their integrity and the trust of ethnic communities who could lose confidence in Poilievre’s party as a protector of minority rights.

Conservative MPs might want to refresh their memories on the thoughts of the philosophical founder of their movement, Edmund Burke, on the subject of natural law and individual rights. “The liberty of no one man, no body of men, and no number of men, can find means to trespass on the liberty of any person, or any description of persons, in society. This kind of liberty is indeed but another name for justice; ascertained by wise laws and secured by well-constructed institutions.”

Source: In Quebec, the Tories can choose principles or pandering. Not both

Conservative Leader Pierre Poilievre’s Quebec lieutenant made a shocking declaration this week that went unnoticed in English Canada, telling reporters that Conservatives “of course” agree with the provinces’ pre-emptive use of the notwithstanding clause.

On Tuesday, Quebec MP Pierre Paul-Hus said the party “might not necessarily” contest Quebec’s Bill 21 at the Supreme Court — reversing Poilievre’s previous stance. Then, Paul-Hus added, “Is the use of the notwithstanding clause in a pre-emptive manner, as the provinces have used it — are Conservatives in agreement with that?”

“Bien oui,” he said, meaning, “Of course” — or, literally, “Well, yes.”

That might be news to some of the Conservative MPs who vocally opposed Bill 21, a discriminatory law that bars those wearing religious symbols from holding certain public-sector jobs.

But perhaps they shouldn’t be surprised.

This week, they all sided with the sovereigntist Bloc Québécois and voted to tell Ottawa — the Liberals and any future federal government — to butt out of the notwithstanding clause debate. (Only Manitoba’s Candice Bergen, Nova Scotia’s Rick Perkins and Ontario’s Alex Ruff, who represents Bruce-Grey-Owen Sound, didn’t show up for the vote, and only the Liberals and NDP opposed.)

The motion proposed by the Bloc read: “That the House remind the government that it is solely up to Quebec and the provinces to decide on the use of the notwithstanding clause.”

The notwithstanding clause was a compromise that allowed prime minister Pierre Elliott Trudeau to enshrine the Canadian Charter of Rights and Freedoms into the Constitution. It gives legislatures the right to override some Charter rights for a renewable period of five years. Several politicians around the table at the time felt the political cost of using the clause would dampen the temptation to use it.

But that thinking has drastically shifted. In 2019, Quebec’s government introduced Bill 21 to popular support. Knowing the legislation was discriminatory, Premier François Legault pre-emptively invoked the notwithstanding clause to protect it from court scrutiny. The clause was pre-emptively used again last year by Quebec when it passed Bill 96, legislation that limits the rights of anglophones in the province and curbs the use of other minority languages.

Then, last fall, Ontario Premier Doug Ford attempted to pre-emptively invoke the clause, too — this time to stop educational support workers from striking.

Widespread public opposition and the unions’ collective action forced Ford to back down, but not before Ottawa spent days contemplating how it should respond. Should it ask the Supreme Court if the provinces had the right to use the clause pre-emptively? Within Prime Minister Justin Trudeau’s office, staff argued the power of disallowance — a constitutional provision that gives the federal government the right to disallow provincial laws — was outdated (it hasn’t been used since 1943), but they searched for creative ways to send a message that Ottawa wasn’t happy and that it believed the notwithstanding clause needed parameters around it.

At the time, and again this week, Justice Minister David Lametti argued the pre-emptive use of the notwithstanding clause was robbing the courts of having their say.

“It was always meant to be a last resort, in the context of constitutional negotiations,” he said. “It’s a grave matter when we use a law to breach people’s rights in Canada (and) the use of the notwithstanding clause must be an exception.”

The Bloc, unsurprisingly, doesn’t want the federal government telling Quebec what it can and can’t do.

But it is more than noteworthy that the Tories agree — regardless of whether Paul-Hus was making up party policy on the fly or if he had Poilievre’s benediction.

The vote Monday suggests several things.

First, we can expect that as prime minister, Poilievre would sit back and allow any province to pass discriminatory laws using the notwithstanding clause. This is what the Bloc motion called for. This is what Conservative MPs supported.

Second, Poilievre is aggressively courting nationalist voters in Quebec, embracing the same playbook that failed for Erin O’Toole and Andrew Scheer, and his position on Bill 21 may be shifting again. During the French-language Conservative leadership debate last May, Poilievre said he “would not reverse the federal decision” to fight both Bill 21 and 96 at the Supreme Court. But if the Liberals are no longer in office when these laws reach the country’s top court, can Poilievre be counted on to defend minority rights? Monday’s vote suggests not.

Lastly, the Conservative MPs who vehemently opposed Bill 21, who argued against O’Toole’s non-intervention policy and paved the way for his ouster and Poilievre’s leadership, acted disingenuously. Opposing Bill 21, believing that pre-emptive use of the clause should be limited, or that the federal government should fight the bill at the Supreme Court, meant voting against this motion.

Several MPs I spoke with said they believed they were simply reaffirming what the Constitution states, making a statement of fact.

It clearly was about much more than that.

Either you believe in something, or you don’t.

Source: Would Pierre Poilievre’s Tories let provinces strip us of our rights? ‘Of course,’ one of his MPs says

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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