clause

Editorial Cartoon by Graeme MacKay, The Hamilton Spectator – Friday June 11, 2021

The Canadian Charter’s notwithstanding clause is increasingly indefensible

It isn’t happening in Quebec, but in Ontario, so there will be more of a fuss than would otherwise be the case.

But there will be less of a fuss than the last time the Doug Ford government threatened to use the notwithstanding clause to override constitutionally guaranteed rights. The next time it happens, there will be less still. And there will be a next time, and a next time after that, and another, and another – precisely because the political costs of doing so diminish with each use.

This is how the clause is being normalized. This is how, in consequence, the Charter of Rights is being eviscerated. It is already more or less a dead letter in Quebec, where the override has been invoked over the years by governments of every party. Once upon a time it might have caused something of a stir, at least outside the province, as when Robert Bourassa used it to uphold the ban on English-language signs in 1988.

But having paid no discernible price for invoking the clause to protect Bill 21, legislation that effectively bars the hiring of religious minorities across much of the public service, Quebec’s CAQ government was quick to do the same with regard to Bill 96, its new and harsher language law. A rights “guarantee” that cannot protect minorities from overt harassment and discrimination – a guarantee that applies only as when the government of the day decides it should – is not much of a guarantee at all.

And now it is happening elsewhere. Mr. Ford’s first attempt to use the clause, over a 2018 bill that would have cut the size of Toronto city council in half – in the middle of a municipal election – may have collapsed in confusion, but now the Premier is back for another try. This time the casus belli is Bill 254, legislation passed earlier this year that would, among other things, double the length of time before an election campaign during which third-party advocacy groups would be subject to spending limits.

As before, the Premier has supposedly been provoked to action by a judge’s ruling, overturning the legislation on Charter grounds. But as before this is not really the issue. The government could have appealed either ruling to a higher court, and even had it lost there, it could have rewritten either bill in ways that addressed its purported intent, without unduly limiting Charter rights. (Globe & Mail)