Dodek: It’s time for the Supreme Court, and the federal government, to stand up for the Charter

Valid critique:

The Liberals used to be the party of the Canadian Charter of Rights and Freedoms. Now, under Prime Minister Justin Trudeau, they risk being the party that leads to the Charter’s decline.

Over the past five years, the political taboo over the use of the notwithstanding clause, which allows governments to override some Charter rights, has been shattered across Canada. This occurred not under former prime minister Stephen Harper, a Conservative who was the favourite lightning rod of Liberal Charter enthusiasts, but under the current Liberal stewardship of Mr. Trudeau.

When Ontario Premier Doug Ford threatened to use the notwithstanding clause in the fall of 2018, as part of a plan to shrink the size of the Toronto City Council in the midst of the provincial election, the Prime Minister did nothing. (Ultimately, Mr. Ford did not use the clause in that instance.)

The next year, Quebec Premier François Legault went ahead with using the notwithstanding clause to insulate Bill 21, which bans certain provincial government employees from wearing religious symbols at work. In 2021, Mr. Ford also used the clause for a law limiting third-party election spending. In both cases, Mr. Trudeau again did nothing.

Earlier this year, the Quebec government used the notwithstanding clause once more, this time to push through Bill 96, its new language law. Yet again, the Prime Minister took no action, though he has said that the federal government would intervene in a legal challenge to Bill 21 at the Supreme Court of Canada.

“This is a matter that matters to all Canadians, regardless of which part of the country they live in,” Mr. Trudeau said in May, when asked if Ottawa would involve itself in the Bill 21 challenge. “This government will continue to be here to defend people’s fundamental rights and freedoms.”

I doubt those whose rights have been threatened or stripped away by legislation in Quebec and Ontario find much comfort in the Prime Minister’s vague and banal words. They won’t help the Muslim women in Quebec who have lost their jobs because they wear a hijabas a declaration of their faith. They won’t help non-native French speakers who are barred from speaking another language at work.

While the Ontario government pledged to repeal its most recent use of the clause (as part of Bill 28, which made it illegal for unionized education workers to go on strike), Canadians should still be concerned about the increased use of this clause by provincial governments.

Mr. Trudeau could act right now if he wanted to. If he has the political courage to do so, the Prime Minister could initiate a reference to the Supreme Court challenging the pre-emptive use of the notwithstanding clause in Quebec and Ontario. He could send some of the best legal talent in the country from the Department of Justice down the street to the high court to stand up for the minority rights of Canadians.

Crucially, Ottawa could argue that the Supreme Court should revisit its 1988 Ford v. Quebec (Attorney-General) decision, which gave governments the carte-blanche ability to use the notwithstanding clause.

Supreme Court decisions are not cast in stone. Much has changed in the three decades since it first ruled on the use of the notwithstanding clause, which authorized its use both in reaction to court decisions striking down laws as violations of the Charter, as well as its pre-emptive use in advance of any such legal challenges.

The rights and provisions set out in the Charter do not define themselves. It is the task of the courts, especially the Supreme Court, to interpret its contents. The political leaders who debated and enacted the Charter knew full well that they would be giving this awesome responsibility to the courts.

Between 1980 and 1981, a special joint committee of the Senate and the House of Commons spent more than 150 hours hearing from Canadians about the draft Charter. The legislators on this committee were warned that the enactment of a constitutionally-entrenched bill of rights such as the Charter would make the courts responsible for its interpretation.

The 1988 Ford decision dates to the early years of Charter interpretation. It is part of the first generation of Charter cases. The high court’s interpretation of Charter rights ebbs and flows over time.

A favourite metaphor among Canadian constitutional lawyers and academics is the idea that our Constitution is a “living tree” – one that is capable of growth and expansion within its natural limits. Sometimes, the Constitution needs to be pruned back. In other cases, the courts or governments go too far – in recent years, both have done so on sanctioning and using the notwithstanding clause.

The time is ripe for Canada’s highest court to revisit its 34-year-old decision. It is also long overdue for some strong federal leadership to defend the Charter rights of Canadians.

Adam Dodek is a law professor at the University of Ottawa and author of the book, The Canadian Constitution.

Source: It’s time for the Supreme Court, and the federal government, to stand up for the Charter

Khan: I thought the Charter protected Canadians’ fundamental rights, but I was wrong

Another good column by Sheema Khan:

Like you, there have been many times I have felt proud to be Canadian. For example, our government’s principled refusal to join the immoral invasion of Iraq. Attending citizenship ceremonies, where new Canadians remind us of the deeper meaning of citizenship. Being told by one of my Harvard professors that Canadian students were the best prepared – a testament to our excellent public education system. And of course, the 1995 Unity Rally in Montreal, on the eve of the Quebec referendum, where Canadians joined hands peacefully to express our heartfelt love for Canada and Quebec.

The contentment has been punctuated by instances of profound doubt, when I wonder what we really stand for. For example, the longstanding Canadian project to inflict cultural genocide on Indigenous communities. Just read the summary of the Truth and Reconciliation Commission’s report to get a shocking glimpse into the depravity of our country’s official policy: Last year’s gut-wrenching announcements about the unmarked graves of Indigenous children on the grounds of former residential schools. And let’s not forget the complicity on the part of government agencies in the rendition of Maher Arar to torture in Syria.

Post 9/11, our courts served as a check on government overreach on basic civil liberties. I grew to love our Constitution, which replaced hockey as a central feature of my Canadian identity.

I am not a historian. Nor am I a lawyer. I am, simply, a Canadian citizen who cherishes our Charter of Rights and Freedoms as a safeguard for fundamental rights and freedoms.

Imagine, then, the gut-punch upon discovering that the highest law of the land – to which new citizens pledge allegiance – makes no such guarantees of fundamental rights and freedoms whatsoever. All owing to the notwithstanding clause, which is enshrined in the Charter.

For years, I saw the “notwithstanding clause” as a polysyllabic legal term, bandied about by constitutional experts. I didn’t know what it meant. Mainstream media clarified it as a right, given to provincial and federal governments, to suspend Sections 2 and 7 to 15 of the Charter. All of this still seemed abstract. Until it wasn’t, after reading those sections.

In a nutshell, the Charter grants governments the right to suspend basic individual freedoms that we all take for granted. Namely, freedom of conscience, religion, thought, belief, opinion and expression, as well as freedom of the press, peaceful assembly and freedom of association. We aren’t talking about emergency measures, nor reasonable limits that are justified in a democracy. No, we are talking about a constitution that makes it perfectly legal to suspend basic human rights, as a matter of governance.

It does not stop there.

A number of basic legal rights can be suspended. These include the right to life, liberty and security (barring some exceptions, such as the prison system); requirement of warrants for search and seizure; the right to be informed why one is being detained; the right to a lawyer upon arrest; the right against unlawful imprisonment; presumption of innocence until proven guilty; and the right not to be subjected to cruel and unusual punishment. The clause allows suspension of the right of every individual to be equal before, and under the law; and suspends the right to equal protection of the law without discrimination based on race, ethnicity, colour, religion, sex, age or disability.

This needs to be spelled out: our Charter makes it perfectly legal to gut basic rights. There is no need for a coup, no need to politicize selection of judges, no need to gerrymander, no need to use a loophole. The potential for abuse is encoded into law. There is no other constitutional democracy that allows for the gutting of basic rights as a matter of governance.

Much has been written about the history of how the notwithstanding clause came to be: a compromise between federal and provincial powers; a balance between elected representatives and unelected judges. Yet, this does not explain how basic human rights were used as a bargaining chip, rendering our Charter of Rights and Freedoms hollow.

When it was introduced, the thought was that it would be rarely used. Some termed it the “nuclear button.” For decades, that was the case. However, within the past three years, it has been used twice by Quebec and once by Ontario. Quebec Bills 21 and 96 unequivocally suspend individual and legal rights of minorities. Conservative Party leadership candidates Jean Charest, Pierre Poilievre and Patrick Brown have promised to strike down the recent Supreme Court decision on sentencing, using the clause.

It’s time for each Canadian to engage in a conversation about who we are as a country, given that our Charter allows for cancellation of basic civil liberties.

Source: I thought the Charter protected Canadians’ fundamental rights, but I was wrong

Judge suspends Quebec face-covering ban, says it appears to violate charter

Not a major surprise:

The portion of Quebec’s religious neutrality law that dictates when Quebecers must leave their faces uncovered in order to receive public services has been suspended for a second time, only days before it was slated to go into effect.

Quebec Superior Court Justice Marc-André Blanchard issued the ruling Thursday, handing another victory to civil liberties groups that argue the law discriminates against Muslim women who wear niqab​s or burkas.

Blanchard said Section 10, which pertains to face coverings, appears to be “a violation” of the Canadian and Quebec charters, which “provide for freedom of conscience and religion.”

The judge concluded that “irreparable harm will be caused to Muslim women” if the relevant section of the law had gone into effect on July 1.

He ordered Section 10 suspended until a challenge to the law is heard in court.

The same portion of the law was suspended in December.

In that ruling, another Quebec Superior Court justice ordered the provincial government to produce accommodation guidelines dictating how the restrictions on face coverings would work in practice.

Those guidelines are slated to go into effect July 1, but the sections on face coverings will now no longer apply.

The civil rights groups challenging the law argued the guidelines place a greater burden on the individuals affected.

“We’re very happy with the decision,” said Catherine McKenzie, who was part of the legal team that challenged the law’s constitutionality on behalf of Warda Naili, a Quebec woman who wears a niqab.

“This law has an important impact on women who cover their faces for religious reasons. Women were going to be potentially cut off from very basic services so it was important for us to ask for the law to be stayed again.”

‘Confusion and uncertainty’

In his ruling, Blanchard also noted there is still “confusion and uncertainty” about how the process will work.

The guidelines, released in May, state that exemptions to the law, previously known as Bill 62, can only be granted to individuals on religious grounds if the demand is serious, doesn’t violate the rights of others and doesn’t impose “undue hardships.”

The Quebec government left it up to individual public bodies, however, to decide how to handle accommodation requests, and requires each body to appoint an official to make those decisions.

The office of Justice Minister Stéphanie Vallée, who has been the point person on the law, said it is analyzing the judgment and that it is still within the 30-day appeal period.

When the guidelines were announced in May, Vallée said each request needs to be taken in its own context.

“If a person wearing a burka or a niqab wants to make a request, that request will be processed,” said Vallée.

“It would be determined on a case by case [basis], following a request. Is this someone who has a sincere belief who is wearing this piece of clothing regularly, in their daily life, or if the request is being put forward with the aim of getting an advantage.”

Source: Judge suspends Quebec face-covering ban, says it appears to violate charter

Judicial activism in Canada: Charter fights | The Economist

The Economist’s take on the judicial difficulties of the Government:

Yet the government itself, not meddling judges, may be more to blame. Edgar Schmidt, a former lawyer in the justice department, is suing the government for not subjecting proposed legislation to sufficiently rigorous scrutiny to see if it conforms to the constitution prior to presenting it to parliament. Simon Potter, a former head of the Canadian Bar Association, cited Mr Schmidt’s points in a speech to the association last month in which he accused the government of not doing enough to defend the charter and of fostering disrespect for the judiciary. If Mr Schmidt’s allegations are correct, says Mr Potter, “the executive has decided to take as many freedoms away from us as possible, rather than as few as possible”. He is dismayed that there is more legislation in the pipeline that looks ripe for charter challenges.

One step this government is not prepared to take is to revoke the charter itself. It would involve lengthy, arduous and potentially inconclusive constitutional negotiations with the provinces. More importantly, even the government’s own surveys show the charter is hugely popular with the majority of Canadians. When it asked Canadians to suggest the people and feats they want celebrated in 2017, the country’s 150th birthday, Medicare, peacekeeping and the charter of rights and freedoms were the top three accomplishments. Pierre Trudeau, the former Liberal prime minister who brought in the charter, was the most inspiring Canadian.

Judicial activism in Canada: Charter fights | The Economist.

Un grand pas vers l’égalité homme-femme | Le Devoir

Former Supreme Court judge Claire L’Heureux-Dubé supports the Charter, another reflection of how embedded the opposition to any forms of religious expression, given the history of Catholic domination of Quebec and the transformation into a largely secular society in the 60s:

Dénonçant les « diktats de la religion », Mme L’Heureux-Dubé tentera de dissuader les élus d’opposition de se rallier à la position défendue par le Barreau du Québec et la Commission des droits de la personne. À ses yeux, ces deux organismes proposent à l’État de confier un « choix de société » au « gouvernement des tribunaux ». « Le rôle des tribunaux n’est pas de gouverner ni d’entraver les choix démocratiques que se donne une société, mais plutôt de réprimer les abus, s’il y en a, au regard des droits fondamentaux que protègent les chartes », affirme Mme L’Heureux-Dubé qui a siégé au plus haut tribunal du pays de 1987 à 2002.

Un grand pas vers l’égalité homme-femme | Le Devoir.

Somewhat amusing that the leaders of Quebec’s student movement against tuition increases, that led to widespread protest again the Charest government in 2012, now say youth are intimidated by the Charter debate. Come on, this is more of a choice! If I recall the polls correctly, young Quebecers (like all young Canadians) are more relaxed about multiculturalism/interculturalism than older citizens.

«Depuis le début, il y a eu toute une série de sorties publiques, comme celles de Guy Rocher et Jeannette Bertrand. Et ils ont tout à fait le droit. Mais ce sont des gens d’un certain âge qui ont utilisé leur expérience pour donner beaucoup de crédibilité à leurs propos et pour donner l’impression aux jeunes que leur opinion l’était moins», fait remarquer Gabriel Nadeau-Dubois, ex-porte-parole de la CLASSE. «C’est un sophisme d’autorité».

Cet automne, lors de son intervention sur la charte au Mégaphone de l’ONF, au Quartier des spectacles, des baby-boomers lui avaient fait la morale lors de la période de discussion. «Je m’étais fait dire “nous les baby-boomers, on a vécu la Révolution tranquille, on sait de quoi on parle et vous, vous n’êtes pas au courant. Vous devez nous écouter.”», note M. Nadeau-Dubois. «Les jeunes sont intimidés. Personne n’essaie de les faire taire volontairement, mais c’est l’impression que ça donne. Et ce n’est pas très invitant.»

Charte de la laïcité : les jeunes intimidés par le débat

When Tim’s is more popular than the Queen, how to tell Canada’s story? – The Globe and Mail

Jack Jedwab of the Association of Canadian Studies on recent polling data on elements of the national narrative. Not surprisingly, the Charter still holds first place, probably to the chagrin of the government which has downplayed the Charter and given greater prominence to the Monarchy. In Delacourt’s Shopping for Votes, there is a good section on how Tim Horton advertising captures citizenship better than the government (here).

But the broader challenge remains:

In a regionally diverse and demographically pluralist country like Canada it is no simple task to establish an official or common narrative. It is essential to promote ongoing discussion and debate about the Canadian story that highlights its historic achievements and past failings. That many of us arrive at different conclusions about the meaning of our shared past is the sign of a healthy democracy far more so than a problem for societal cohesion. As we approach the 150th anniversary of Canada we should seize the opportunity to embark upon a national conversation about the nation’s past so as to enhance collective knowledge about ourselves.

When Tim’s is more popular than the Queen, how to tell Canada’s story? – The Globe and Mail.

Mourani: adopter la Charte à la majorité simple, un acte «immoral»

Interesting points from former Bloc MP Maria Mourani. But given that the proposed Charter affects human rights, setting a higher bar than a simple majority makes sense. Unanimity may be too high a bar, even if on policy grounds I would prefer the threshold for such legislation to be as high as possible.

Mourani: adopter la Charte à la majorité simple, un acte «immoral» | Lia Lévesque | Politique.

Quebec Muslims facing more abuse since charter proposal and other Charter-related articles

Not surprising, that Quebec Muslims are reporting more abuse following the proposed Charter. Playing identity politics invites that. It will be interesting to see if these anecdotes of increased abuse show up in the official Stats Canada Police-reported hate crime in Canada, 2011 (there is always a time lag), as police-reporting is a higher threshold and allows more consistency among groups.

Quebec Muslims facing more abuse since charter proposal, women’s groups say – The Globe and Mail.

Femmes voilées: «augmentation dramatique» des agressions

And signals from the Quebec government that no exceptions to the proposed Charter will be allowed, whether for Montreal, universities or the health sector:

Charte: Québec songe à abolir le droit de retrait

Some interesting commentary today, starting with Humera Jabir, a law student at McGill, noting her own history of considering the hijab as a political symbol as much as a demonstration of her faith, and in the end stopped wearing the hijab, given that her spiritual grounding was not strong enough:

Quebec is wrong to treat the hijab as a political tool

Michelle Gagnon of CBC notes some of the paradoxes of the proposed Charter with respect to Catholicism  (of which there are many). A good illustration of yet another government being driven by the politics of the anecdote, rather than sound evidence, and I pity the public servants that had to provide “fearless advice” as the government proceeded down this path. Would love to see the briefing notes!

Is Quebec more Catholic than it likes to think?

Immigration Minister pulled gay rights from citizenship guide, documents show – The Globe and Mail

via Immigration Minister pulled gay rights from citizenship guide, documents show – The Globe and Mail.