Aftab Ahmed: Our coming constitutional crisis
Ottawa can't ignore the ongoing tension between individual rights and provincial autonomy.
By: Aftab Ahmed
Canada, a country celebrated for its cultural diversity and commitment to individual freedoms, faces an internal struggle that threatens the core foundations of its identity. The primary concern is not the pandemic-related deployment of the Emergencies Act, nor the alleged attempts by Prime Minister Justin Trudeau to limit individual freedoms in the context of managing the Freedom Convoy protests. Rather, the issue at hand tests the elasticity of Canada’s constitutional framework, torn between the opposing poles of individual rights and provincial autonomy.
While one might argue that a degree of tension between these principles is healthy and to a large extent necessary for democratic governance, the current state of affairs reveals more than just healthy friction. It underscores a looming constitutional crisis that calls for careful action. Envisioned as a tool to unify the country around a set of common values, the 1982 Charter of Rights and Freedoms is increasingly seen as a wedge that divides.
The Charter was introduced with grand ambitions. Designed to go above the complexities of provincial statecraft, it aimed to codify an unambiguous and overarching layer of individual rights within Canada’s unique constitutional design. Yet it co-exists, somewhat awkwardly, with mechanisms like the Notwithstanding Clause, an escape-hatch that enables provinces to override fundamental freedoms, thus shaking the very foundation of the Charter.
Take the example of Quebec's controversial Bill 21, which bans public employees from wearing religious symbols. On the surface, the law seems to contradict the Charter's guarantee of equal rights for all Canadians. However, Bill 21 can skirt this issue through the deployment of the Notwithstanding Clause, a controversial but constitutionally acceptable move that questions the very efficacy and sanctity of the Charter itself. For instance, the law does not equally burden all groups. In reality, it disproportionately affects Muslim women who choose to wear the hijab.
This inconvenient fact raises the question of whether Bill 21 also violates the gender equality principles enshrined in Section 28 of the Charter. Academic Kerri Froc argues that Section 28 serves as a blockade against governmental overreach that would undermine nationwide gender equality. The counterpoint, offered by constitutional expert Maxime St. Hilaire, is that Section 28 serves merely an interpretive role, making the opposition to Bill 21 on these grounds constitutionally insubstantial.
This ongoing scholarly debate brings us to the next point: How do Canadians navigate the labyrinth of conflicting and nebulous constitutional interpretations? The ambiguity in the Charter's foundational design allows for various readings, creating an ever-shifting landscape that politicians and policy-makers can exploit. While the Notwithstanding Clause was designed to be a rarely-used fail-safe to protect provincial interests, it is becoming weaponized as a tool for infringing upon the rights of individuals, disproportionately affecting marginalized communities. Importantly, it serves as a poignant example of how competing constitutional visions can impact the lives of Canadians, affecting choices as personal and profound as the freedom to express one's religious beliefs.
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Alberta, Ontario and even historically reluctant provinces have also either used or considered the use of the Notwithstanding Clause to circumvent the Charter. Each use or even the discussion of this loophole sends a chilling message that the fundamental freedoms outlined in the Charter are not as sacrosanct as Canadians may believe.
Provincial governments argue that their ability to enact legislation tailored to regional needs is a cornerstone of federalism. This perspective is not without merit. After all, a country as geographically expansive and culturally diverse as Canada must wrestle with a myriad of regional concerns. But there should be limits, especially when matters of provincial decision-making begin to tread on individual freedoms.
National surveys underscore that Canadians overwhelmingly appreciate their Charter rights, with 88 per cent of respondents indicating that they view the Charter as a "good thing." This highlights the inconsistency between public sentiment and the potential for erosion of the very freedoms they hold dear. In navigating this minefield, the federal government should no longer be a passive observer.
While any constitutional amendment would require an arduous process of provincial assent, a political hot-potato that no government wishes to handle, immediate steps can still be taken. Ottawa should, as a matter of principle, publicly commit to refraining from the use of the Notwithstanding Clause. This would send a message that, at least at the federal level, individual rights take precedence over diverging provincial interests.
But public statements are not enough. Action must extend into a federal-led public outreach campaign designed to educate Canadians on the nuances of this constitutional tension. The national dialogue must be reshaped to emphasize the centrality of individual rights, potentially leading to consensus-building initiatives aimed at constitutional reform. If Canada fails to address these contradictions, it risks jeopardizing its social fabric.
The implications of this constitutional tension are neither abstract nor confined to legal journals. They touch upon the everyday lives of its people. When individual freedoms can be suspended, even temporarily, the country enters a slippery slope where the erosion of rights becomes more palatable, if not normalized. It is a path that Canada, a country often hailed for its commitment to individual liberties, cannot afford to tread.
Aftab Ahmed recently completed his Master of Public Policy degree from McGill University's Max Bell School of Public Policy and is an Urban Fellow Researcher with the City of Toronto. With more than 100 published articles, he serves as a regular columnist for Canadian and Bangladeshi media outlets and policy publications. He can be reached at mir.ahmed@mail.mcgill.ca
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I consider the Supreme court as more dangerous than the "Notwithstanding Clause". They have consistently interpreted the Charter in weird and unhelpful ways based sometimes, on ridiculous hypotheticals.
Prompted by a desire to keep Quebec in the federation, Canada pioneered this incoherent approach to safeguarding rights back in the 1970s and 1980s--and other countries, alas, have followed Canada's lead. The notion of 'collective rights' has now taken hold everywhere, and has become a pretext for elevating what are essentially the practical concerns and interests of different population groups, variously defined (from provinces to 'peoples' to 'distinctive cultures,' etc.), over constitutional protections for individuals.
Far from "disproportionately affecting marginalized communities," it is these communities themselves that have predictably proved the most enthusiastic exploiters of our constitution's rights loophole. You want to educate your children in English? Sorry... what politicians deem the group's best interests decree they must be educated in French, "notwithstanding" your clear right to choose otherwise. This has never made sense, either from the viewpoint of logical consistency or even as a practical matter. Precedents that undermine individual rights threaten all citizens alike, whatever population group they belong to; and how can politicians responsible to voters who actually elected them pretend to speak for voters yet unborn? Who knows what language citizens in a certain geographic area may prefer speaking a hundred years from now? Shouldn't they be free to determine this for themselves? Culture can't be frozen legislatively: it evolves or it dies. Culture is an evolutionary product to begin with: if you think yours is particularly distinctive it's because it became so by serving your population group's ever-changing needs.
Groups have no rights over and above the rights of the individuals who make up the groups. Adding your rights to mine doesn't create a group of two with twice the rights, just an abstraction; and to the extent we imagine we can subtract rights from ourselves and transfer them to this abstraction we simply commit a category mistake. This is the incoherence that lies at the heart of our constitution and of all 'group identity' politics; and, yes, it promises intractable dilemmas in the years to come if we fail to acknowledge and remedy the problem. That process will be anything but easy, and not just because many groups won't perceive such remedy as being in their best interest. As Nietzsche said, "An error that becomes respectable is an error that possesses one seductive charm more," and what's more seductive and respectable than the siren song of tribalism?
And yet... this isn't rocket science. As an individual I can't abridge your rights: I certainly couldn't tell you in what language your children have to be educated. But wait: if I join the right population group and chant "notwithstanding," then I can tell you exactly that. Surely it doesn't take a genius to see that any constitution permitting this kind of sidestep has serious limitations as a rights safeguard.