When the Negation of Rights Is Presented as the Defence of Rights

Pauline Easton —

The anniversary of the proclamation of the War Measures Act is an appropriate occasion to speak about the Canadian Charter of Rights and Freedoms’notwithstanding clause that the Legault government is threatening to use. The new Premier has announced that he will invoke that clause so that legislation on religious symbols, that may violate the Charter and be contested in the courts, would be adopted within a year. He says this is necessary to defend rights and Quebec as a « distinct society. »

The notwithstanding clause is Section 33 of the Canadian Charter of Rights and Freedoms. The Charter itself is the first part of the Constitution Act, 1982, the Pierre Elliott Trudeau government’s « patriated » constitution which, amongst other things, neither recognizes the Indigenous peoples’ ancestral or treaty rights, nor Quebec’s right to self-determination. Furthermore, Quebec has never signed it.

Herein lies an attempt to divide the polity between those who defend the Canadian Charter of Rights and Freedoms and the conception of rights therein, and those who want to invoke the so-called « notwithstanding clause » in the name of defending the rights of Quebec based on the notion that it is a distinct society. In short, no one is talking about the rights that must be recognized in a modern 21st century society, not to mention what the rule of law should be.

It must be understood that this Charter of Rights and Freedoms contains a section stipulating that all the rights and freedoms recognized therein are subject to « reasonable limits. » Today these limits are increasingly used by the police powers in what are called national security cases. This is the case with what is referred to as national security legislation that would have us submit to the U.S. Department of Homeland Security. Such « reasonable limits » are also invoked in the case of workers who oppose laws and regulations that invalidate certain sections of their collective agreements, irrespective of the fact that they are legally binding. Such laws and regulations undermine their freedom of association and their right to conscience. The courts in fact tend towards affirming that such an imposition respects the « reasonable limits » clause. They say that government executives — the police powers — have a higher responsibility to take decisions in the name of the public interest, which of course they do not do, as their decisions serve big private interests.

As for the notwithstanding clause, it does not annul the Charter’s « reasonable limits » clause. As with the latter, it is a prerogative mechanism of the executive powers to violate the rights of the people. The notwithstanding clause allows the federal parliament or a provincial legislative assembly or the National Assembly in Quebec to adopt laws that annul the rights proclaimed by the Charter, as found in Section 2 or Sections 7 to 15. Essentially, it allows for the annulment of all the rights proclaimed in the Charter except the right to vote and the five-year limit mandate for federal and provincial governments.

Through this exercise in disinformation regarding a law on religious symbols, the new Quebec government is preparing the conditions for a fratricidal conflict, while the situation requires the unity of the entire people against archaic democratic institutions that are not instruments that defend the rights of the people, nor are they controlled by them. The situation reveals the necessity to oppose the measures of the ruling class that deprive the people of their rights and their capability to themselves determine, based on their own considerations, their conduct as a modern nation.

It is absurd to say that a society can be defended by way of a constitution which considers rights as privileges that can be taken away based on the whims of the party leader in power, whether at the federal or provincial level.

All those concerned with the future of Quebec and Canada must condemn such a manoeuvre, irrespective of where they place themselves on the political spectrum and their ideological convictions, religious or other beliefs.