Thing's have gotten messier in Canadian political life lately. There has been a lot of condemnation of Ontario Premier Doug Ford's attempt to use the “Notwithstanding Clause” of the Canadian Charter of Right and Freedoms to override an Ontario Superior Court judge ruling against his government's new law cutting the size of seats available in the upcoming Toronto City Council election. The Superior Court judge had found that his law violated the Charter's freedom of expression guarantee.
In the end, it looks like he won't have to use it. The Ontario's Court of Appeals ruled that the new provincial law cutting the number of council seats from 47 to 25 - after the municipal campaign had already started - was allowable. Apparently, “Unfairness alone does not establish a charter breach.” Not satisfied, Premier Ford has already promised to use the Clause if any other judges rule against his government.
Sound confusing? Yes. But one thing has been demonstrated through the whole ordeal: how weak the “official” protections of our democratic and human rights can be. Doug Ford is not the first, and he will not be the last, to undermine our rights using technically legal, even constitutional, means. While Prime Minister Justin Trudeau may have condemned Ford's actions – he has been continuing a long effort to weaken further government recognition and protections of our rights with his “National Security” Bill C-59, which is in the final Senate hearings before likely becoming law.
What the Heck is this Clause?
The Notwithstanding Clause, also known as Section 33 of the Canadian Charter of Rights and Freedoms, allows the federal parliament or provincial legislatures to pass legislation that overrides certain Charter-established rights and freedoms, for five-year periods. The sections of the Charter that can be overwritten are Section 2, regarding fundamental freedoms such as expression, conscience, association, and assembly; and Sections 7 to 15 regarding the right to life, liberty, and security. The clause cannot be used on some other sections of the Charter, including those concerning democratic rights, mobility, and language rights.
Pretty incredible – most people didn't even know that there was this relatively easy to use official exception available for such fundamental human rights.
How Did That Happen?
Canada didn't even have a Charter of Rights and Freedoms until 1982, 115 years after its original Constitution. It was part of Canada's first Constitution which the British Parliament didn't have the right to amend.
The Notwithstanding Clause came out of something called the“Kitchen Accord” wherein the pantry of a fancy Ottawa hotel, then Federal Justice Minister Jean Chrétien and the Attorneys General from Saskatchewan and Ontario, Roy Romanow and Roy McMurtry, came up with the exception which they believed would open the door to getting all of the Provinces and Federal government to agree on the Charter as part of the updated constitution. Unfortunately for us, they were right. It took some more secret negotiations, most of which ended up excluding Quebec, but on April 17, 1982, Queen Elizabeth II and Prime Minister Pierre Trudeau signed Canada's Proclamation of the Constitution Act, 1982. The Constitution included the Charter of Rights and Freedoms, and also the Notwithstanding Clause.
Interestingly, Chretien, Romanow and McMurtry recently released a joint statement condemning Doug Ford's attempted use of the clause. They said, “The clause was designed to be invoked by legislatures in exceptional situations, and only as a last resort after careful consideration. It was not designed to be used by governments as a convenience or as a means to circumvent the proper process.”
You would think it they didn't want to be so convenient to use they wouldn't have made it...so convenient to use.
The Rule Not the Exception
The supposed shock of politicians is a little hard to believe. The Canadian government has always been in the habit of giving itself the ability to override the rights it says it upholds.
The War Measures Act was a federal law adopted by Parliament in 1914, after the outbreak of the First World War. The Act gave the government full authority during wartime to censor and suppress communications; to arrest, detain and deport people without charges or trials; to control transportation, trade and manufacturing; and to seize private property.
Hundreds of publications, especially communist or “foreign” were banned. After the Russian Revolution in 1917, membership in left-leaning or even pacifist organizations was made illegal as well. People were regularly jailed for their political beliefs. Over the course of the war, the federal government interned 8,579 “enemy aliens” across the country. Another 80,000 people, mostly Ukrainian Canadians, were also forced to register as “enemy aliens,” carry identity papers and report regularly to the police.
The government also used the War Measures Act to declare martial law and deploy 6000 soldiers to break up anti-conscription (forced military service) rallies in Quebec in 1918. They killed four people and injured 150 more.
Defending What?
Using World War 2 as the justification, the government enacted “Defence of Canada Regulations,” which allowed the Minister of Justice to detain anyone without due process who fit the vague charge of acting “in any manner prejudicial to the public safety or the safety of the state.” 325 newspapers and periodicals were banned, along with more than thirty religious, cultural and political organizations, including Jehovah’s Witnesses and the Communist Party of Canada.
Under regulations, any person critical of government positions could be interned without charge or trial. Montreal mayor Camillien Houde was jailed for four years without trial for telling people to defy war conscription.
Using the War Measures Act, 22,000 Japanese Canadians were also interned without trial in 1942. They were also stripped of their property and pressured to accept mass deportation at the end of the war.
Prime Minister Pierre Trudeau had also shown no hesitation in using the Act to declare martial law in 1970 when Front de Libération du Québec (FLQ) members kidnapped the provincial Deputy Premier Pierre Laporte and the British diplomat James Cross. The military flooded the streets, and 497 people were arrested without bail. All but 62 of whom were later released without charges. When responding to a CBC reporter's questions about the possibility of enacting the War Measures Act during peacetime being a heavy-handed approach, Trudeau responded, “Just watch me.”
Since 1988 we now live under the “Emergencies Act, which differs from the War Measures Act in that a declaration of an emergency by Cabinet must be reviewed by Parliament, and any temporary laws made under the Act are subject to the Charter of Rights and Freedoms. Sounds better, but Doug Ford has kindly reminded us how easily the Charter can be overridden by the notwithstanding clause.
Right to Organize?
One of the primary themes we are seeing is that we seem to have rights on paper until the government decides they inconvenient to their rule and objectives. This is also seen most clearly with the attack on working people and their unions, especially over the past three decades. According to a report by the Canadian Foundation for Labour Rights:
“Since the early 1980s, the number of instances of back-to-work legislation is higher than any other period in the history of labour relations in Canada. In the last three decades, the federal government alone passed 19 pieces of back-to-work legislation while provincial governments across the country have enacted 74 pieces of back-to-work legislation.
Most of this legislation (50 of the 92 pieces of legislation) not only forced workers back to work after taking strike action but also arbitrarily imposed settlements on the striking workers.”
So, we have a right to form unions and act collectively to defend our rights at work until it gets in the way of corporate profits or government cutbacks.
Which Side are You On?
Prime Minister Justin Trudeau said he is a "staunch believer and defender" of the charter but would not take action to try to stop Ford. This is classic Justin Trudeau. “Sympathizing” with our concerns and then doing the opposite completely. It has been the same textbook he's used to approach Bill C-51, previous Prime Minister Stephen Harper's original “Anti-Terrorism” law, which blew open the door to increased government and police spying, detention and secrecy under the pretext of protecting us. Trudeau spoke against Bill C-51, but he and every single Liberal member of parliament voted in favour of it.
His promised fix after being elected Prime Minister, Bill C-59, has been anything but. Tim McSorley, National Coordinator for the International Civil Liberties Monitoring Group, attended the Parliamentary hearings on the law, which was passed and sent to the Senate for approval. His assessment?
“From mass surveillance to continuing the unfair, ineffective No Fly List, and from secret 'threat disruption activities' to new cyber-attack powers, nearly all aspects of Bill C-59 remain the same. And nearly all the 'problematic' aspects of Bill C-51 remain unfixed.
Even if the government improved the National Security and Intelligence Review Agency and Intelligence Commissioner, though, good review and oversight can never make up for bad legislation. Instead, the bodies tasked with monitoring for errors and keeping the excesses of our national security agencies in check are forced to be rubber stamps reduced to making sure that bad laws aren't broken and justifying a system that undermines our rights.”
Do as I Say. Not as I Do.
So who do you trust? The politician who says he respects your rights before violating them, or the one who just goes right out and does it? Neither. Trudeau, Chretien and all the other politicians grumbling about Ford aren't doing it because they care about our rights. They're concerned he's exposing too much of the ruling class's hand too fast. They have tactical and strategic differences with him, not moral or political ones.
We need to be especially vigilant against racist, islamophobic and anti-immigrant campaigns which are now common in Canada, the United States and Europe. It's the same attempt to blame “others” for a crisis created by capitalist governments and corporations and used to justify cracking down on human and democratic rights – especially to organize an effective opposition. We have seen this done before, and we can't let it happen again.
The best way to confront these attacks is always a united, consistent and independent movement defending the human and democratic rights of all poor, working and oppressed people. We've seen glimpses and powerful possibilities with different upsurges such as Occupy Wall Street, Idle No More, and the initial Canada-wide movement opposing Bill C-51. We need to build on those and understanding the power and oppressed people working together to defend their interests.
Follow Thomas on Twitter: @thomasdavies59
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