Obscure Clause in Canadian Charter Sparks Fierce Rights Debate | Canada


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dated: 2022-11-20 15:54:15 .

At the height of a bitter pay dispute with Ontario educators earlier this month, the province’s premier, Doug Ford, introduced legislation barring employees from striking and requiring them to be given multi-year contracts — a violation of their constitutional rights.

Amid a growing public backlash and the prospect of a general strike, Ford quickly backed down, announcing that his government would withdraw the law immediately.

In neighboring Quebec, the provincial government is defending in court a law that bans public servants such as teachers and doctors from wearing religious symbols — a law that disproportionately affects religious minorities. However, instead of retreating from the controversy surrounding the law, the province’s premier, François Legault, was recently re-elected, in part because of his popularity.

The two governments’ ability to abrogate what appear to be fundamental rights rests on a controversial – and typically Canadian – constitutional mechanism known as the “nevertheless” clause.

It has also been called an “escape hatch” and a “nuclear bomb”. But with each use of the clause, Canada must endure further debate about whether it needs a place in the constitution — or whether its power should be blunted.

A 2015 poll found that 93% of citizens believe that the country’s Bill of Rights and Freedoms, similar to the US Bill of Rights, is the most important symbol of Canada, ice hockey, the Royal Canadian Mounted Police, the maple leaf and the national anthem.

The 40-year-old charter protects a range of rights – democracy, mobility, justice, equality and language rights – and has served as a template for dozens of nations.

But when then-prime minister Pierre Trudeau proposed replacing the British North America Act with a constitution in the 1980s, the decision sparked a power struggle between the provinces and the federal government.

The provinces feared that under the new constitution the courts would become too powerful and undermine the authority of the elected government. A compromise was worked out: in cases where the government – ​​whether provincial or federal – felt the courts had gone too far, it could invoke the clause to override certain charter rights of citizens.

This meant that some fundamental rights, including the protection of freedom of religion, equality and freedom of expression, could be suspended.

But the federal government placed limits on that power: the right to vote, like the right to speak, was inviolable to ensure that Canadians could remove the government if they wanted to. The government could invoke the clause for only five years. Before they would renew it, they would first have to face the voters.

“Even without using the default clause, governments have considerable ability to defend their laws if they can show why it is a ‘reasonable and proportionate’ restriction on rights,” said Robert Leckey, dean of McGill’s law school. “And when they reach for the regardless clause, governments are really just saying, ‘We want to pass a law that the courts wouldn’t uphold as a reasonable and proportionate restriction on rights.’”

All the provinces – except Quebec – agreed to the measures and the constitution was ratified in 1982.

In the years that followed, the clause was rarely invoked.

But in 2019, Quebec passed Bill 21, banning its public service employees from wearing religious symbols in public. The province preemptively invoked the clause, implicitly admitting that the law violated the charter.

Three years later, Quebec passed Bill 96, which sought to strengthen protections for the French language—again invoking the notwithstanding clause, in an apparently implicit acknowledgment that the pursuit of linguistic and cultural protection was contrary to the Canadian Charter.

Meanwhile in Ontario, Premier Doug Ford has used the clause three times – or threatened to. Before Ford, no prime minister had invoked the no matter what clause.

Preemptive use of the clause sends a message: “‘We are a majority government, we represent our constituents and we don’t want to be slowed down or harassed by having to explain what we are doing in court.’ ‘ said Lekey. “The worrying thing is that people are a little less surprised every time it’s used a lot.”

While Ford quickly dropped Bill 28, Quebec’s National Assembly showed little interest in reducing the bill and highlighted the clause’s troubling implications, said Sonia Lawrence, a constitutional law professor at Osgoode Hall Law School in Toronto.

“By using the regardless clause, you have discriminated against minorities who are already discriminated against. And here we could expect the court to be the strongest and to go against the government, especially since we do not expect the wider electorate to necessarily support these minorities,” she said.

The Quebec Court of Appeal is hearing the case over concerns that Bill 21’s exemption clause has been misapplied, but the broad powers granted by the clause make it difficult for critics or courts to limit the government’s ability to pass controversial laws.

Changing the clause would require continued debate on the constitution, a task many fear would lead to a national crisis with the provinces demanding new concessions or powers from the federal government.

But Lawrence said that despite its shortcomings in protecting minority rights, the nullity clause also prevented Canada’s top court from becoming an overtly partisan institution.

Unlike the United States, where “the court is essentially captured by political interests” and judicial interpretation of the law can shape public policy — as in the Supreme Court’s decision to overturn decades-old abortion precedent — governments in Canada can easily overturn a controversial Supreme Court ruling.

“When rights are viewed as absolute, there is also a scenario where you can do very little if you think the court has misinterpreted the scope of the right,” Lawrence said. “It hasn’t happened to this extent in Canada.”

Public outrage over the use of the independence clause — and surprise that rights can be taken away so easily — means Canada must be in a better position to decide when the time is right to use it, Leckey said.

“The taboo that it can never be used is probably not helpful. There are really circumstances where you might think it could be used, especially when it’s a very controversial ruling,” he said. “But I don’t think we, as a political culture, have developed a sense of when it’s legitimate to use the clause and the ability to evaluate how lawmakers have justified it.”

Much of the debate, frustration and uncertainty surrounding the clause is also a result of the relatively youthful constitution, Lawrence said.

“If we expect our charter to survive, we also have to accept that we really don’t know what situations they will have to deal with in the future.”


Obscure Clause in Canadian Charter Sparks Fierce Rights Debate | Canada

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