FROLITICKS

Satirical commentary on Canadian and American current political issues

Oct 15

Overriding Canadian Human Rights Legislation Via Use of Notwithstanding Clause 

by bcurry

Section 33 of the Canadian Charter of Rights and Freedoms is part of the revised Constitution of Canada created back in 1982.  It is commonly known as the “notwithstanding clause”, sometimes referred to as the override power and was included at the time so as to have the majority of provinces agree to the new constitution.  The clause allows Canada’s Parliament or provincial legislatures to temporarily override certain sections of the Charter when introducing new legislation.  It is unique among the constitutions of democratic countries and gives federal and provincial governments the ability to ignore most of the constitutional rights of Canadians other than the right to vote, the seating of legislatures and the House of Commons, mobility rights and language rights.  One extraordinary provision is that no explanation for such a move is required.  The U.S, Constitution gives no such powers to the states, but it does authorize Congress to remove jurisdiction from the federal courts.  However, not since World War II has Congress mustered the requisite majority to do so.

For much of our new constitution’s history, it was rarely used by provinces (the federal government has never invoked it) and was politically regarded as an option of last resort.  However, the notwithstanding clause has since been used by Alberta in 2000, and Quebec in 2001 and 2005.  In addition, most Canadian provinces, including Quebec and Alberta, have their own human rights Act, which protects people in a province from discrimination in certain areas, such as employment, accommodation, and access to services, based on specified grounds (‘protected characteristics’).  Recently in 2022, Ontario’s Premier Doug Ford of Ontario threatened to invoke the clause to take the right to strike from teachers but subsequently abandoned his plan due to political pressures and the threat of future court challenges.

More recently, invocation of the notwithstanding clause by provinces has to do with the introduction of so-called “parental rights” legislation, similar to that found in Florida and some southern U.S. states’.  Such laws primarily govern the use the preferred names and genders of schoolchildren.  In June of this year, the premier of New Brunswick, Blaine Higgs, introduced legislation which requires teachers to get the permission of a child’s parents if the child is under the age of 16.  Now the issue has surfaced again in Saskatchewan.  Following the lead of Mr. Higgs, Premier Scott Moe recently recalled his province’s legislature to introduce a similar bill.  If passed, it will mandate parents’ consent for a number of things including the use by any pupil under 16 of a new gender-related preferred name or gender identity at school.

One expert observer noted that provinces tend to use the notwithstanding clause to feed their base the idea that we’ve gone too far in human rights and that the courts have been leading us in the wrong way.  The belief is that elected officials need to capture back their power.  It’s also suggested that its use has resulted in more “wedge politics.”  Remember that introducing such legislation will take away the individual rights of those directly affected, such as in the above cases involving the rights of a child.  Psychiatrists and social workers have noted that there are potential harmful consequences of forcing teachers to contact parents regarding such matters, especially where the child may fear a hostile reaction by their parents to gender-related matters.  Where once before a child could turn in confidence to a teacher or school counsellor for information and assistance, the child may now be much more hesitant to do so.  The detrimental result may be the potential emergence of social and mental health issues.

It has been suggested that in some cases the courts might ultimately end the ability of premiers and prime ministers to preemptively set the constitution aside when it comes to human rights legislation.  This was the most recent case in Ontario over the right to strike by teachers.  Never-the-less, the concern over the use of the Charter’s withstanding clause by provinces should remain a serious concern among Canadians.  After all, who’s next to have their individual rights taken away by a government?  Where does it all end?  The continuing use of this provision will ultimately water down those protections afforded to us under both federal and provincial human rights laws.

Canada Charter of Rights and Freedoms Civil Rights Quebec's Bill 21 US

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Nov 30

Where Do Provincial Powers Begin and End in Canada?

by bcurry

To better understand the split between provincial and federal powers, given by Canada’s written constitution, one has to understand a little bit of the history.  When Canada became an independent country from Great Britain, the federal government was given a good deal of governance responsibilities.  Canada was formed as a confederation comprised of ten provinces and several territories.  However, the provinces eventually garnered a fair amount of responsibility for certain matters which were not national in scope.  Federally, the government deals primarily with inter-provincial areas such as transportation, banking, and inter-provincial commerce, as well as such international areas dealing with foreign policy, trade, defence and immigration.  So far so good.  However, during World War II, the federal government took control of areas of taxation in order to make war related payments.  These revenue areas were not returned to the provinces after the war. For this reason, the provinces have complained about their heavy reliance on access to federal funding for areas of primary provincial responsibility such as health, education and housing.  In addition, as the years passed, new areas surfaced of great importance such as telecommunications and nuclear energy, something that the federal government determined was in their jurisdiction as part of its constitutional responsibility for the peace, order and good government of Canada.  Over the course of the 20th century, legal interpretations of peace, order and good government more clearly defined the limits of federal authority over the provinces.  Often disputes over who’s responsible for what and to what extent end up in litigation by provinces and the federal government.  Like the old constitution of 1867, the new one of 1982 will remain vague in many areas until time and circumstance permit its interpretation by the courts.

All in all, the provinces continue to have substantial jurisdiction for areas such as education, health and urban affairs.  One area of contention has been the federal introduction of “equalization payments” to the provinces to help ensure that provincial governments across Canada can provide adequate services.  It was expected that the richer provinces would help to subsidize certain areas in the so-called poorer provinces.  For example, Alberta has its oil and gas industry which brings in large revenues to its coffers.  The federal government gets its share of taxes from Alberta’s energy sector and passes most along to the Maritime and other provinces to help provide some of the services that Canadians have come to rely on.  Quebec has also benefited greatly from the equalization arrangement, while Ontario has not.

Now, the current Alberta government is complaining about federal policies and laws that they feel intrude upon their provincial responsibilities or which Albertans are not in agreement with, such as gun control measures and environmental taxes on oil and gas sectors to name a few.  Recently proposed legislation introduced in Alberta would allow its cabinet to direct “provincial entities” — Crown-controlled organizations, municipalities, school boards, post-secondary schools, municipal police forces, regional health authorities and any social agency receiving provincial money — to not use provincial resources to enforce federal rules deemed harmful to Alberta’s interests.  This is a very disturbing development, suggesting even greater polarization between a province and the federal government.  Fortunately, the Alberta government has not gone as far as — like Quebec in the past — to suggest a potential separation from Canada’s confederation.

However, Alberta’s stance appears to be somewhat similar to Quebec’s political moves in the sixties, seventies and eighties where provincial parties promoting Quebec’s independence from Canada had emerged.  Failing to obtain a majority in two referendums on independence, the Quebec movement slowly disappeared over the last decade.  Instead, Quebec has attempted to secure more provincial control over former federal jurisdiction, such in such areas as immigration and public pensions plans.  Indeed, Quebec recently passed several contentious laws dealing with French language rights and secularism in its public sector.  The courts have already begun to examine appeals to such legislation based on possible violations under human and rights laws.

What all this amounts to is the power to govern.  The federal government has to play a fine line between what powers can be shared and what policies best serve all Canadians equally.  There is little doubt that provincial premiers will continue to gang up on the Prime Minister, particularly when to do so is in their interests.  The PM on the other hand has the difficult and delicate task of maintaining a strong national presence in governance in support of the peace, order and good government of Canada.

Canada Charter of Rights and Freedoms Defence Education Fairness in Taxation Federal Government Gun Laws Health Care Systen Immigration Policies

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Nov 1

The Big Problem With Canada’s Constitutional Use of the ‘Notwithstanding Clause’

by bcurry

Since Canada’s Constitution was patriated from the British Parliament’s authority to Canada’s federal and provincial legislatures in 1982, the Canadian Charter of Rights and Freedoms (the Charter) was added at the same time.  Section 33 of the Charter is known as the notwithstanding clause.  This override clause, allows federal, provincial, or territorial governments to temporarily override, or bypass, certain Charter rights.  Although the clause has been used only a handful of times by various provinces, it has set out some dangerous recent precedents where it has been used arbitrarily by Quebec and Ontario in particular.

For example, this November the province of Ontario proposes to introduce back-to-work legislation in advance of a potential strike by thousands of education support workers.  The government intends to use the notwithstanding clause as part of a controversial bill that would impose a contract on provincial education workers.  The province wants to avoid a constitutional challenge against the bill by labour unions and others which see the legislation as a violation of their right to collectively bargain, something that courts have agreed with in the past.  Prime Minister Justin Trudeau told CBC News that: “Using the notwithstanding clause to suspend workers’ rights is wrong”.  The federal government has never invoked the clause.  Section 33 was intended for use by governments in extraordinary circumstances, and not to resolve government initiatives by circumventing citizens’ Charter rights.

In 1988, the Quebec Liberal Party invoked the notwithstanding clause to pass a bill that limited the use of English-language signage and advertising in the province. This was clearly a violation of freedom of expression under the Charter.  When it came up for renewal five years later, the legislation was replaced by another bill which complied with Charter rights.  In 1986, Saskatchewan’s Progressive Conservative government invoked the notwithstanding clause in back-to-work legislation that the Saskatchewan Court of Appeal had earlier ruled violated Charter rights.  In Alberta in 2000, the Progressive Conservative government used the clause to pass legislation against same-sex marriage.  However, the Supreme Court ruled in 2004 that marriage legislation was under federal jurisdiction which subsequently led to the federal government making same-sex marriage legal across all provinces and territories in 2005. The Ontario government’s 2021 use of the notwithstanding clause to protect a campaign finance law turned out to be very problematic when it came to actual election financing.

In 2019, Quebec’s government passed Bill 21 into law, the so-called secularism bill, invoking the notwithstanding clause to block individuals or groups from challenging the law for violating Charter rights.  The law bans public employees — teachers, police officers, judges, etc. — from wearing religious symbols at work. The law sparked protests and debate and was criticized by many as a form of legalized discrimination, and is expected to be challenged in the courts.  In 2022, Quebec’s controversial French language law reform was enacted proactively using the notwithstanding clause once again to shield the law from constitutional challenges.  Some experts argue that this law represented a political manoeuvre to avoid having a negative judicial ruling that would be inevitable if they hadn’t used the notwithstanding clause.  With numerous future lower court reviews, most believe that how Section 33 is used will eventually have to be decided when a case reaches the Supreme Court of Canada. 

These are a few examples of the use of the notwithstanding clause under Section 33 of the Charter.  This provision was introduced at the time of the Constitution’s patriation to politically placate the provinces in order to obtain their needed agreement to proceed with the new constitution.  In retrospect, this may have created more jurisdictional problems than it was supposed to resolve.  When the Charter was drafted in 1982, the unprincipled pre-emptive use of the notwithstanding clause was not envisioned.  Some claim its misuse has become totally unacceptable and all too prevalent.  Governments are hiding their political agenda behind its use, thereby undermining the protections afforded to people under the Charter.  Laws should not be allowed to avoid Charter challenges!  Where in the Constitution does it say that government authority should void the rights of citizens — particularly minorities — without proper recourse through our democratic and judicial processes?

Canada Charter of Rights and Freedoms Quebec's Bill 21

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