Sooner or later Charter values were going to run straight up against provincial identity-building efforts; someone using the notwithstanding clause was inevitable.
I’m going to take a slightly different point of view: Canada has always been defined by two realities, French speakers in Quebec and those of us who complain about French speakers in Quebec. Of recent I’ve had a change of heart. I’ve realized that the people of Quebec stand unique in the western world. The willingness of Quebecers to stand up and say they are not just proud Quebecers but proud of their history and heritage. Imagine if you will, a white person defending whiteness and our western culture. Political opponents would quickly label you a racist and member of your own party would label you a trouble maker. But when it comes to Quebec one is allowed to say out loud thinks but fears to speak.
“I’m proud of my Country and it’s history and it’s culture! I carry no shame in being Canadian. "
But alas as I’m a non French speaking white person I can only say that under my breath less I incur the wrath of the mob and of spineless politicians.
There would never be a Charter without s.33. Alberta and I suspect a few other provinces would have joined Quebec in never signing the document.
Why would they have never signed? They refused to give Ottawa the trust of the benefit of the doubt in interpreting the document. Ottawa didn't earn that trust and still doesn't have it. The Supreme Court especially gives the legal elite an unaccountable veto over everything that matters and that power isn't trusted by Quebec, Alberta, etc.
Address the trust issue and the lack of checks and balances in Ottawa, and lack of accountability, before even speaking about getting rid of the Nonwithstanding Clause.
Canada's political elites haven't earned the trust of the provinces and the people.
The Charter is an imperfect document in many respects - from basic rights that are limited "as can be demonstrably justified in a free and democratic society" (along with the R v. Oakes doctrine the courts put together to deal with it), to the notwithstanding clause - it's clearly a product of many tensions and competing interests that have to be marshalled in our federation. These are the sort-of 'escape valves' that permitted the adoption of the Charter (and then, only barely) in the first place. By virtue of its federation Canada was never going to get the sort of foundational constitution that certain republics (France, the United States...) might claim to benefit from - in this respect, it is really an honest 'Canadian' document reflecting the issues of federalism that do indeed make us Canadian. It's fitting that many Canadians have formed a part of their national identity around it.
The general view in the francophone (or at least Québécois) sphere is, I think, a bit different. To its credit, Québec has worked hard over the years to implement the spirit of this constitution while simultaneously bristling against its imposition. But the escape values are there for a reason, and it shouldn't be a surprise to anyone that laïcité was a concept that was bound for Québec at some point or another. That's one of the benefits with our federation - having different cultural and legal perspectives available to draw upon. And that's what this discussion is missing - outside of Québec there is a tendency to wrap this debate up tidily in a label of 'racism' without a fair reading of what laïcité is, or what its intended to accomplish. In reality, the issues deserve a more nuanced read.
In my view, laïcité is a nice concept, but suffers from some severe practical problems in its various implementation(s). France, for instance, has agonized over this for years without any definitive settlement. But 'practical problems' are not exclusive to laïcité and reducing the Anglo side of the argument to 'those Québec racists are just fucking with our Constitution again' is, at best a bit narrow, and at worst, the pot calling the kettle black (can we say that anymore?). Rather, it seems to me that there is merit in letting Québec try out an approach that just might serve to provide some perspective into issues that have import throughout the federation. That seems, to me, to be the 'Canadian' thing to do.
Interesting read but I must say that I too was confused by the conclusion. If the Charter is the most successful and effective nation-building document in Canada's history, then why should the federal government work to sabotage and undermine a core part of it?
Secondly, I was surprised by the other bombshell claim in the conclusion. What I mean is the claim that 'all nations are imagined communities' -- this is a fringe view on what nations are. I would argue that it is a Canadian projection. Canada is largely becoming an imagined nation. Our leaders admit that we are essentially separate identity groups with differing values and disparate aims worthy of differing levels of attention. On the surface, the claim 'a Canadian is a Canadian is a Canadian' seems to strengthen the notion of citizenship and yet citizenship has never been cheaper. A citizen is any person anywhere on the planet that happens to reside here for a period of time and takes a test. We keep arguing that the period of time should be shorter and isn't really important anyway. Some talk of giving residents voting rights without being citizens. Or, how about allowing immigrants to return to their countries of origin to live and work for decades while still retaining voting rights in Canada? The difference between a Canadian and a non-Canadian is being erased, so yes, we are an imagined nation.
The mistake would be, however, to imagine that the rest of the world sees their nations this same way. For the vast majority, nationhood is a very real and concrete thing, with real borders which their citizens are prepared to defend or expand with their lives. In my opinion Canada is not this sort of nation, which is fine. But if we believe that what binds our nation is a flawed document that seems to work against its own purpose, then we are in trouble indeed.
I do not understand what happened at the end of this piece. It was building up so well and then ended like a high school civics paper. Why would the federal government denounce and outright oppose a clause that exists in real time within our constitution? It makes no sense whatsoever and would just make those same provinces more angry at a judgmental federal government that sees fit to undermine provincial rights embedded in the constitution. It would certainly fit the mould of "whacky things to keep happening in Canada" as our federal government denounces and outright opposes the use of a perfectly legal mechanism within our constitution.
If the practice of freely using the notwithstanding clause spreads beyond Quebec (and not just as the occasional idle threat) then Canada's constitutional order is, indeed, likely to face a real crisis. At the same time, perhaps it offers a way away from the rule-by-judiciary which has become the norm south of the border, with a panel of nine appointed justices ruling on massive, society-shaping decisions that 100% should be dealt with by democratically elected legislators. It's a fragile balancing act, but perhaps in time we'll find that blending strong constitutional freedoms and parliamentary supremacy is a winning formula. At least that's my optimistic take.
It would be interesting to make the use of the notwithstanding clause a much bigger deal. Perhaps its use should automatically trigger a referendum on that piece of legislature? Trigger an election, even?
It is a loss and tragedy for Canadians that in Justin Trudeau, unlike his father, they don't have a Prime Minister who has any interest in defending or expanding rights of any kind.
Justin Trudeau and his Liberals have never defended, improved, or enhanced rights in Canada unless forced to by a court.
Even when court forced to advance rights as in medical assistance in dying, they do the least they think they can get away with such as it was their first attempt at MAID legislation which was found unconstitutional.
Based on their records, Justin Trudeau and the Liberals, it would be fair to assume, would be just fine with provinces and, indeed, the federal government including in all legislation the Section 33(1), notwithstanding clause, proviso.
For the record, the other major parties are not much better on rights. If there's a choice between people's rights and their personal political self-interest, rights lose ever time.
All the leaders' position on Bill 21 is, fundamentally, if you're a Muslim woman in Quebec, "Sucks to be you."
It's ironic that it would be good politics to advance rights had Trudeau kept his 2015-last-election-under-first-past-the-post promise.
At any rate, for the mean time we're stuck with a Prime Minister who is a political wimp, and who has no interest in rights, as I say, unlike his father.
Just last week? Ford used the notwithstanding clause to tinker with third-party election advertising. So if we think the little lady with her hijab is sitting at the fulcrum point of history and the Canuck constitution, perhaps we need a little more real history. And a little less inventive propaganda.
If we're talking about historical time bombs in the Canuck constitution, might be a moment to remind folks of a foundational contradiction Canucks love to pretend doesn't exist. S91.24, 1867 vs S35, 1982.
By contrast the notwithstanding clause, or the KenneyCons laxitive lament over equalization for that matter, are just administrative speed bumps for legal purists and grumpy ideologues who wish they didn't have to share the country with folks who don't share the ideology.
S91.24, 1867, unilaterally declared injuns and lands reserved for them thar injuns would fall under the legislative authority of the feds, who unilaterally gifted the uninvited injuns with the legislative reward of the Indian Act 1876. Injun country rebelled! Twice!
And then the third injun rebellion! When Justin's Daddy and Uncle Jean came up with another legalist invention, the 1969 White Paper, to finalize the total legal assimilation of them thar injuns. Some people love to think they can just create a country from nothing, like pulling bouquets from outta yer arse! Like The-Saska-Moe with his nation-creating tweet! Course Papa Pierre was just trying to clean up the colonial paperwork once and for all. Which led to the third injun rebellion and S35 1982, the recognition of aboriginal and treaty rights.
So the contradiction?
Are injuns legislative subjects of the unilateralist monarchical colonial state? Or are they independent allies with treaty relationships to that monarchical colonial state? Hmmm, can the brainwashed colonials even comprehend the problem?
As the Supreme Court has noted the contradiction of the Crown's assertion of sovereignty and the prior occupancy of the injuns needs to be "reconciled". As they also note, this reconciliation needs to be negotiated, it can't be adjudicated because, in the end, the SCC is a creature of one side of that treaty table. It can't adjudicate what is constitutionally outside and prior to its own foundation, I.e., the prior occupancy of them thar injun nations!
So if collective constitutional rights are making you wheezy and uncomfortable cause the notwithstanding clause, reflecting aspects of the unilateral originalist 1867 compact between monarchical colonies, disturbs the judicial furnishings laid out by the legal invention of a Charter of Idealized Individuals in 1982? Have we got a constitutional time bomb fer ya!
How about unceded injun territory from coast to coast to coast! How about a colonial state fraudulently claiming sovereignty in somebody else's country on somebody else's land? No conquest! Just unilaterally interpreted treaty relations! Hmmm.
I wonder what them injuns really think about all them unilateralist inventions when you actually sit down and negotiate with'em! Collectively!
Now that be an historical constitutional time bomb of collective rights waiting to truly re-arrange the furniture and all them atomized individuals slavishly consuming and producing inside their global capitalist economies! Oops sorry didn't mean to trigger supply chain anxieties and the frailty of invented individuals!
As for the feds unilaterally declaring "flat, unequivocal, and all-encompassing opposition"? Show me your bouquet, and I'll show you mine! My god, but hell is other people!
So by all means, let's open up that sucka and let's have a real go at it this time! And maybe we can even talk about the bigotry of the Charter and its invented identities, now fully digitized and Justin-Time ready for deep faking, and the inherent collective and treaty rights of historical nations! Whoo-weee, gets me balls jumpin just thinkin on it!
This is a tough issue to process, i find. On the one hand, states shouldn’t discriminate against their citizens on the basis of religious expression; what happened in Chelsea is just disturbing. On the other hand, I’m not really sure what anyone thinks anyone is supposed to do about it, given the nature of the situation.
The law is perfectly legal (like it or not) AND is supported by the majority of Quebecers. And due to the use of the notwithstanding clause, the law will automatically cease to apply should popular opinion turn against it by the end of any given 5 year period. In other words, it stays so long as Quebecers want it to stay and no longer. And in the meantime, at least some of the people negatively affected by the law have the ability to move to another province, taking skills and labour that Quebec desperately needs with them and making lots of noise as they do so, so that everyone knows why. Seriously, couldn’t New Brunswick, the bilingual province next door, find a way to capitalize on this somehow? Nothing like citizens imposing an economic cost on a government to drive home a political point.
It seems to me that if this law is going to be overturned, it has to be because Quebecers come to see it as unworkable/undesirable on their own terms (whether cultural or economic). The ROC can position itself as a more welcoming place to live for religious minorities (to act as a draw for those affected), but whether this law stands or falls ultimately depends on what people living inside Quebec decide is right for them.
Or, the bomb is a firecracker and This Will All Blow Over.
The kind of folks that go out in the street to scream about their sacred civil liberties do not do so for the Muslim schoolteachers. There were zero public demonstrations about the fate of Muslim Omar Khadr, and he was tortured for years on end as a teenager. I doubt if many will go to the wall because a schoolteacher was reassigned to an easier job.
My bet: it blows over. If Mr. Potter would like to bet that it blows up, won't go away, stays in the news for weeks on end as anger grows, I will cheerfully give him 5:1 odds. C'mon, Andrew, your $20 against my $100?
I’m going to take a slightly different point of view: Canada has always been defined by two realities, French speakers in Quebec and those of us who complain about French speakers in Quebec. Of recent I’ve had a change of heart. I’ve realized that the people of Quebec stand unique in the western world. The willingness of Quebecers to stand up and say they are not just proud Quebecers but proud of their history and heritage. Imagine if you will, a white person defending whiteness and our western culture. Political opponents would quickly label you a racist and member of your own party would label you a trouble maker. But when it comes to Quebec one is allowed to say out loud thinks but fears to speak.
“I’m proud of my Country and it’s history and it’s culture! I carry no shame in being Canadian. "
But alas as I’m a non French speaking white person I can only say that under my breath less I incur the wrath of the mob and of spineless politicians.
There would never be a Charter without s.33. Alberta and I suspect a few other provinces would have joined Quebec in never signing the document.
Why would they have never signed? They refused to give Ottawa the trust of the benefit of the doubt in interpreting the document. Ottawa didn't earn that trust and still doesn't have it. The Supreme Court especially gives the legal elite an unaccountable veto over everything that matters and that power isn't trusted by Quebec, Alberta, etc.
Address the trust issue and the lack of checks and balances in Ottawa, and lack of accountability, before even speaking about getting rid of the Nonwithstanding Clause.
Canada's political elites haven't earned the trust of the provinces and the people.
The Charter is an imperfect document in many respects - from basic rights that are limited "as can be demonstrably justified in a free and democratic society" (along with the R v. Oakes doctrine the courts put together to deal with it), to the notwithstanding clause - it's clearly a product of many tensions and competing interests that have to be marshalled in our federation. These are the sort-of 'escape valves' that permitted the adoption of the Charter (and then, only barely) in the first place. By virtue of its federation Canada was never going to get the sort of foundational constitution that certain republics (France, the United States...) might claim to benefit from - in this respect, it is really an honest 'Canadian' document reflecting the issues of federalism that do indeed make us Canadian. It's fitting that many Canadians have formed a part of their national identity around it.
The general view in the francophone (or at least Québécois) sphere is, I think, a bit different. To its credit, Québec has worked hard over the years to implement the spirit of this constitution while simultaneously bristling against its imposition. But the escape values are there for a reason, and it shouldn't be a surprise to anyone that laïcité was a concept that was bound for Québec at some point or another. That's one of the benefits with our federation - having different cultural and legal perspectives available to draw upon. And that's what this discussion is missing - outside of Québec there is a tendency to wrap this debate up tidily in a label of 'racism' without a fair reading of what laïcité is, or what its intended to accomplish. In reality, the issues deserve a more nuanced read.
In my view, laïcité is a nice concept, but suffers from some severe practical problems in its various implementation(s). France, for instance, has agonized over this for years without any definitive settlement. But 'practical problems' are not exclusive to laïcité and reducing the Anglo side of the argument to 'those Québec racists are just fucking with our Constitution again' is, at best a bit narrow, and at worst, the pot calling the kettle black (can we say that anymore?). Rather, it seems to me that there is merit in letting Québec try out an approach that just might serve to provide some perspective into issues that have import throughout the federation. That seems, to me, to be the 'Canadian' thing to do.
Interesting read but I must say that I too was confused by the conclusion. If the Charter is the most successful and effective nation-building document in Canada's history, then why should the federal government work to sabotage and undermine a core part of it?
Secondly, I was surprised by the other bombshell claim in the conclusion. What I mean is the claim that 'all nations are imagined communities' -- this is a fringe view on what nations are. I would argue that it is a Canadian projection. Canada is largely becoming an imagined nation. Our leaders admit that we are essentially separate identity groups with differing values and disparate aims worthy of differing levels of attention. On the surface, the claim 'a Canadian is a Canadian is a Canadian' seems to strengthen the notion of citizenship and yet citizenship has never been cheaper. A citizen is any person anywhere on the planet that happens to reside here for a period of time and takes a test. We keep arguing that the period of time should be shorter and isn't really important anyway. Some talk of giving residents voting rights without being citizens. Or, how about allowing immigrants to return to their countries of origin to live and work for decades while still retaining voting rights in Canada? The difference between a Canadian and a non-Canadian is being erased, so yes, we are an imagined nation.
The mistake would be, however, to imagine that the rest of the world sees their nations this same way. For the vast majority, nationhood is a very real and concrete thing, with real borders which their citizens are prepared to defend or expand with their lives. In my opinion Canada is not this sort of nation, which is fine. But if we believe that what binds our nation is a flawed document that seems to work against its own purpose, then we are in trouble indeed.
I do not understand what happened at the end of this piece. It was building up so well and then ended like a high school civics paper. Why would the federal government denounce and outright oppose a clause that exists in real time within our constitution? It makes no sense whatsoever and would just make those same provinces more angry at a judgmental federal government that sees fit to undermine provincial rights embedded in the constitution. It would certainly fit the mould of "whacky things to keep happening in Canada" as our federal government denounces and outright opposes the use of a perfectly legal mechanism within our constitution.
The best solution is to scrap Trudeau's republican charter entirely and return to unfettered parliamentary supremacy.
If the practice of freely using the notwithstanding clause spreads beyond Quebec (and not just as the occasional idle threat) then Canada's constitutional order is, indeed, likely to face a real crisis. At the same time, perhaps it offers a way away from the rule-by-judiciary which has become the norm south of the border, with a panel of nine appointed justices ruling on massive, society-shaping decisions that 100% should be dealt with by democratically elected legislators. It's a fragile balancing act, but perhaps in time we'll find that blending strong constitutional freedoms and parliamentary supremacy is a winning formula. At least that's my optimistic take.
It would be interesting to make the use of the notwithstanding clause a much bigger deal. Perhaps its use should automatically trigger a referendum on that piece of legislature? Trigger an election, even?
It is a loss and tragedy for Canadians that in Justin Trudeau, unlike his father, they don't have a Prime Minister who has any interest in defending or expanding rights of any kind.
Justin Trudeau and his Liberals have never defended, improved, or enhanced rights in Canada unless forced to by a court.
Even when court forced to advance rights as in medical assistance in dying, they do the least they think they can get away with such as it was their first attempt at MAID legislation which was found unconstitutional.
Based on their records, Justin Trudeau and the Liberals, it would be fair to assume, would be just fine with provinces and, indeed, the federal government including in all legislation the Section 33(1), notwithstanding clause, proviso.
For the record, the other major parties are not much better on rights. If there's a choice between people's rights and their personal political self-interest, rights lose ever time.
All the leaders' position on Bill 21 is, fundamentally, if you're a Muslim woman in Quebec, "Sucks to be you."
It's ironic that it would be good politics to advance rights had Trudeau kept his 2015-last-election-under-first-past-the-post promise.
At any rate, for the mean time we're stuck with a Prime Minister who is a political wimp, and who has no interest in rights, as I say, unlike his father.
What about reducing transfer payments to provinces that enact the clause?
Just last week? Ford used the notwithstanding clause to tinker with third-party election advertising. So if we think the little lady with her hijab is sitting at the fulcrum point of history and the Canuck constitution, perhaps we need a little more real history. And a little less inventive propaganda.
If we're talking about historical time bombs in the Canuck constitution, might be a moment to remind folks of a foundational contradiction Canucks love to pretend doesn't exist. S91.24, 1867 vs S35, 1982.
By contrast the notwithstanding clause, or the KenneyCons laxitive lament over equalization for that matter, are just administrative speed bumps for legal purists and grumpy ideologues who wish they didn't have to share the country with folks who don't share the ideology.
S91.24, 1867, unilaterally declared injuns and lands reserved for them thar injuns would fall under the legislative authority of the feds, who unilaterally gifted the uninvited injuns with the legislative reward of the Indian Act 1876. Injun country rebelled! Twice!
And then the third injun rebellion! When Justin's Daddy and Uncle Jean came up with another legalist invention, the 1969 White Paper, to finalize the total legal assimilation of them thar injuns. Some people love to think they can just create a country from nothing, like pulling bouquets from outta yer arse! Like The-Saska-Moe with his nation-creating tweet! Course Papa Pierre was just trying to clean up the colonial paperwork once and for all. Which led to the third injun rebellion and S35 1982, the recognition of aboriginal and treaty rights.
So the contradiction?
Are injuns legislative subjects of the unilateralist monarchical colonial state? Or are they independent allies with treaty relationships to that monarchical colonial state? Hmmm, can the brainwashed colonials even comprehend the problem?
As the Supreme Court has noted the contradiction of the Crown's assertion of sovereignty and the prior occupancy of the injuns needs to be "reconciled". As they also note, this reconciliation needs to be negotiated, it can't be adjudicated because, in the end, the SCC is a creature of one side of that treaty table. It can't adjudicate what is constitutionally outside and prior to its own foundation, I.e., the prior occupancy of them thar injun nations!
So if collective constitutional rights are making you wheezy and uncomfortable cause the notwithstanding clause, reflecting aspects of the unilateral originalist 1867 compact between monarchical colonies, disturbs the judicial furnishings laid out by the legal invention of a Charter of Idealized Individuals in 1982? Have we got a constitutional time bomb fer ya!
How about unceded injun territory from coast to coast to coast! How about a colonial state fraudulently claiming sovereignty in somebody else's country on somebody else's land? No conquest! Just unilaterally interpreted treaty relations! Hmmm.
I wonder what them injuns really think about all them unilateralist inventions when you actually sit down and negotiate with'em! Collectively!
Now that be an historical constitutional time bomb of collective rights waiting to truly re-arrange the furniture and all them atomized individuals slavishly consuming and producing inside their global capitalist economies! Oops sorry didn't mean to trigger supply chain anxieties and the frailty of invented individuals!
As for the feds unilaterally declaring "flat, unequivocal, and all-encompassing opposition"? Show me your bouquet, and I'll show you mine! My god, but hell is other people!
So by all means, let's open up that sucka and let's have a real go at it this time! And maybe we can even talk about the bigotry of the Charter and its invented identities, now fully digitized and Justin-Time ready for deep faking, and the inherent collective and treaty rights of historical nations! Whoo-weee, gets me balls jumpin just thinkin on it!
This is a tough issue to process, i find. On the one hand, states shouldn’t discriminate against their citizens on the basis of religious expression; what happened in Chelsea is just disturbing. On the other hand, I’m not really sure what anyone thinks anyone is supposed to do about it, given the nature of the situation.
The law is perfectly legal (like it or not) AND is supported by the majority of Quebecers. And due to the use of the notwithstanding clause, the law will automatically cease to apply should popular opinion turn against it by the end of any given 5 year period. In other words, it stays so long as Quebecers want it to stay and no longer. And in the meantime, at least some of the people negatively affected by the law have the ability to move to another province, taking skills and labour that Quebec desperately needs with them and making lots of noise as they do so, so that everyone knows why. Seriously, couldn’t New Brunswick, the bilingual province next door, find a way to capitalize on this somehow? Nothing like citizens imposing an economic cost on a government to drive home a political point.
It seems to me that if this law is going to be overturned, it has to be because Quebecers come to see it as unworkable/undesirable on their own terms (whether cultural or economic). The ROC can position itself as a more welcoming place to live for religious minorities (to act as a draw for those affected), but whether this law stands or falls ultimately depends on what people living inside Quebec decide is right for them.
Or, the bomb is a firecracker and This Will All Blow Over.
The kind of folks that go out in the street to scream about their sacred civil liberties do not do so for the Muslim schoolteachers. There were zero public demonstrations about the fate of Muslim Omar Khadr, and he was tortured for years on end as a teenager. I doubt if many will go to the wall because a schoolteacher was reassigned to an easier job.
My bet: it blows over. If Mr. Potter would like to bet that it blows up, won't go away, stays in the news for weeks on end as anger grows, I will cheerfully give him 5:1 odds. C'mon, Andrew, your $20 against my $100?