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

Raj: Quebec is using the Constitution to take away the rights of minorities. What if that becomes the norm?

Good question although the solution of opening the constitution to provide “guardrails” for use of the notwithstanding clause would be opening a Pandora’s box given that other issues would emerge, not to mention garnering sufficient provincial support:

Fatemeh Anvari has started a national conversation.

The school teacher in Chelsea, Que., removed from her classroom this month because of her hijab, has put a face to Bill 21, the Quebec law that prevents those wearing religious symbols from holding certain public-sector jobs.

The law is popular in Quebec, where Premier François Legault defended it again Monday as reasonable and important to ensure secularism and the appearance of neutrality.

“People can teach if they take off their religious symbol while they teach, and when they are in the streets, at home, they can wear a religious symbol,” Legault told reporters.

The shocked parents of students at Chelsea Elementary School want to use their outrage to cast a light on Bill 21’s injustice.

But a Quebec Liberal MP hopes Anvari’s case prompts broader thinking. Anthony Housefather wants a national discussion on the use of the notwithstanding clause, and how to prevent the majority from using its position to curb the rights of minorities.

Anvari lost her ability to teach because Legault pre-emptively used the Charter of Rights and Freedoms’ notwithstanding clause, section 33, giving the Quebec government the ability to trample on fundamental rights and shield its action from the courts. (It is doing so again with language Bill 96.)

“I’m not naïve about it,” the Mount Royal MP told me. Amending the Constitution to add parameters around the clause or eliminate it completely requires the approval of at least seven provinces representing 50 per cent of the Canadian population. The only other direct option would be Ottawa’s power of disallowance, last used to invalidate provincial law in 1943.

Source: Quebec is using the Constitution to take away the rights of minorities. What if that becomes the norm?

Notwithstanding clause could stop debate over Quebec’s secularism bill before it starts

To watch:

As the Quebec government prepares to table its secularism bill, constitutional experts are raising concerns about Premier François Legault’s reported plans to pre-emptively invoke the notwithstanding clause to ensure public workers in positions of authority are banned from wearing religious symbols.

Robert Leckey, dean of McGill University’s law faculty, said doing so would effectively make it impossible to challenge the constitutionality of the legislation.

“It really immunizes the law from the more obvious charter challenges,” Leckey said in an interview.

Montreal’s La Presse newspaper reported last week that a provision to invoke the clause could be written into Bill 62 itself.

The notwithstanding clause, officially called Section 33 of the Charter of Rights and Freedoms, allows provincial or federal authorities to override certain sections of the charter for a period of five years.

Sources told Radio-Canada earlier this week the bill will go further than originally expected. New teachers, as well as school principals, would be subject to the ban, which would also apply to lawyers, judges, police officers, courthouse constables, bodyguards, prison guards and wildlife officers.

‘Collective rights’

Civil rights groups have already vowed to challenge the legislation, but Legault has repeatedly said he’s prepared to use the notwithstanding clause to impose the ban.

He said so again on Tuesday.

“It’s not a small thing. It’s a big decision. But sometimes, in order to protect collective rights, we have to use it. I think we have to protect our collective identity,” Legault said, pointing out the clause has been invoked numerous times by different premiers.

“To separate religion and politics is important in Quebec.”

The bill by his Coalition Avenir Quebec governement will be the fourth successive attempt at laying out a framework for religious neutrality in the province, following previous efforts by the Jean Charest Liberals, the Parti Québécois under Pauline Marois and the Liberal government of Philippe Couillard.

The most controversial sections of Couillard’s legislation are still before the courts after being subjected to a charter challenge.

But given the province’s long history of debate about religious neutrality, Leckey is skeptical that moving quickly will allow the CAQ government to settle the matter once and for all.

“I just don’t think it’s the case that it will put a lid on these things,” he said.

“I think there will be a messiness in applying the law.”

Rarely used, except in Quebec

Political leaders across the country have been reluctant to use the notwithstanding clause, which is viewed by many as politically perilous. It has only been invoked three times outside Quebec.

“The view was that this would be a clause used infrequently and in very specific circumstances. I’m not sure whether that is what’s qualifying the use of it today,” said James Kelly, a constitutional expert and political science professor at Concordia University.

The clause is more commonly invoked inside Quebec, where it has served as both a means of symbolic resistance and as a tool to defend Quebecers’ collective identity.

The most controversial use of the notwithstanding clause was in 1988, when then-premier Robert Bourassa used it to override a Supreme Court ruling on minority language rights, passing a law requiring outdoor commercial signs to be in French only.

The possibility of the clause being invoked pre-emptively harkens back to how a former PartiQuébécois government used it.

Between 1982 and 1985, the PQ objected to the terms of the new Canadian Constitution by including a notwithstanding clause in every piece of legislation it introduced.

Philippe-André Tessier, the head of Quebec’s Human Rights and Youth Rights Commission, said the CAQ’s proposed bill should be put to a debate at the National Assembly.

“The commission believes that it’s only in exceptional circumstances that the notwithstanding clause should be used,” he said.

Source: Notwithstanding clause could stop debate over Quebec’s secularism bill before it starts

Andrew Coyne: Marois’ PQ joins ranks of those who would use notwithstanding clause to block minority rights

Cat out of the bag, as the PQ admits that the proposed Charter would require use of the notwithstanding clause in order to survive legal challenge:

How very Canadian: notwithstanding if necessary but not necessarily notwithstanding. Still, Ms. Marois has clarified matters, even if inadvertently. Not only do her remarks suggest the PQ knew all along that the bill it was proposing, the centrepiece of its platform, was unconstitutional, a violation of the Canadian Charter of Rights and Freedoms, but it had no intention of amending it to bring it into conformity. Either it planned to deliberately blow it up, as in La Presse’s version [Le choc, la charge, la charte | Vincent Marissal], or it would invoke the constitutional override, a possibility it had never conceded until now.

Andrew Coyne: Marois’ PQ joins ranks of those who would use notwithstanding clause to block minority rights | National Post.

Chantal Hébert in L’Actualité:

1- Il n’a jamais fait de doute que la Charte serait contestée devant les tribunaux. Sa compatibilité avec les libertés fondamentales a toujours été matière à débat, et pas seulement à l’extérieur des rangs gouvernementaux. Autrement, le gouvernement aurait produit les avis juridiques que ses propres avocats lui ont certainement préparés au moment de son élaboration.

2- Un gouvernement curieux de savoir comment son projet cohabitait avec les libertés fondamentales aurait pris les devants et l’aurait soumis à la Cour d’appel du Québec pour avoir son avis.

3- Ce ne sont pas de lointains Canadiens qui vont contester la Charte, mais plutôt des citoyens ou, même, des groupes ou des organismes québécois. La Ville de Montréal et la plupart des universités, de même qu’un nombre conséquent d’associations professionnelles et même syndicales, s’opposent fermement à son application.

4- La clause dite nonobstant est renouvelable aux cinq ans sur un vote majoritaire de l’Assemblée nationale. S’il fallait y avoir recours pour appliquer une Charte de la laïcité, attendez-vous à refaire le débat.

Chantal Hébert : La Charte, les chartes et la clause nonobstant

Federal government reaction has been appropriately cautious on this point during the campaign, although all three parties were very strong when the Charter was announced:

Utilisation de la clause dérogatoire par le PQ: les députés fédéraux prudents OTTAWA