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Quebec and
By Michael B. Davie
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Chapter 1 The threat of Quebec separation, that province's sign
law violation of the human right of freedom of expression, and a decentralization
trend that has weakened our federal government, together constitute
three resilient problems for those Canadians who desire a strong central
government in a united country which fully respects human rights and
freedoms. This paper will argue that these problems are worsened by
Section 33 of the Canadian Charter of Rights and Freedoms which is entrenched
under Schedule B of the Constitution Act, 1982. Section 33 has the effect of allowing a federal or provincial government to override section 2 establishing and protecting the existence of such fundamental freedoms as freedom of conscience and religion, freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; freedom of peaceful assembly; and freedom of association." 2. In also allowing sections 7 to 15 to be overridden, section 33 permits governments to violate legal rights to life, liberty and security of the person, the right to be protected from unreasonable search and seizure, the right not to be arbitrarily detained or imprisoned, the right to retain counsel without delay, fair treatment rights for accused persons, the right not to be subjected to cruel and unusual punishment, plus equality rights establishing the equality of individuals under law. 3. Any invocation of section 33 is subject to review - but only after five years, leaving the violation of rights to continue to years, outliving the government which invoked the clause. Section 33, as Charter framer Pierre Trudeau recalls, is meant to be used rarely, "only in the most extreme and compelling circumstances," and after public debate into why a legislature is violating rights. 4. Yet in practice, Quebec casually invoked a blanket application of the clause with little debate. That fundamental rights and freedoms can be so easily toyed with by government is disturbing. Jennifer Smith notes, section 33's "very appearance in the context of the Charter strikes an incongruous note and is testimony to the strength of the lingering tradition of parliamentary supremacy." 5. Also known as the notwithstanding clause and the non obstante clause, section 33, in the view of this paper, has enhanced provincial power at the expense of the federal government, has diminished the protection of freedoms meant to be enjoyed by all Canadians and has aided divisiveness and separatism by giving Quebec a tool with which it can overrule the highest courts in our land to violate human rights. The ways in which Section 33 can be so blamed, the trend of decentralization, Quebec separatism and the threat to rights will all be explored in this paper. Canadians, much like the citizens of the United States and other democratic nations, enjoy fundamental freedoms of expression, of thought, of assembly, of religion and of association. These freedoms are subject to reasonable limitations in democratic states and in Canada, this matter is clearly addressed in the Charter's judicial override, section 1, which guarantees our fundamental rights "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." 6. The need for demonstrably-justified limitations on freedoms is obvious. For example, a democratic society's desire to provide protection from libel and slander naturally leads to the imposition of reasonable limits on freedom of expression. However, the Charter's description of the fundamental rights and freedoms of Canadians as being fundamental denotes these rights as being core to citizenry and, beyond reasonable limitations, not to be tampered with by government. As Janet Ajzenstat has stated, "it is perhaps the finest thing about liberal democracy that it guarantees negative rights, limiting the power of democratic majorities to pass laws regulating free speech, and treating citizens unequally." 6. Yet, the use of section 33 undermines the Charter's ability to guarantee of negative rights. The fundamental freedoms of Canadians are always at risk of government tampering - however unreasonable or unfair - as the override clause allows legislatures to violate rights and freedoms "notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter." 7. Indeed, the Charter's ability to fully protect the rights and freedoms of Canadians has been seriously eroded by section 33 allowing legislatures intent on violating our rights to overrule the highest court in the land to achieve that end. This does not render the Charter worthless as it continues to provide constitutionally-entrenched protection of rights. Rather, Section 33 imposes the constant threat that a government can, with few limitations, infringe a fundamental freedom in a manner which is not demonstrably justified in a free and democratic society (otherwise, a government would rely on meeting the test of section 1 without resorting to use of section 33). Section 33 hands governments something of a loaded gun - without asking them to account for its use. Given that government terms seldom last a full five years, it is unlikely that any given government, even if it invoked section 33 at the very start of its term, would ever be subjected to the five-year justification proviso. The rights violation and the issue of section 33 usage would therefore become a matter for a subsequent government to deal with. Elections are also an imperfect way of adding a measure of accountability to section 33 usage as electoral results are seldom, if ever, a decisive response to a single issue. Override use would simply become one of many issues in debate and could well be overshadowed by economic issues. Thus, in practical terms, governments invoking section 33 automatically win, without having to justify use of the notwithstanding clause, without having to justify the violation of a fundamental freedom. Section 33's supporters are prone to downplay the dangers of giving legislatures the last word on violating freedoms and rights. They note that Supreme Court of Canada Chief Justice Lyman Duff has linked responsible, executive-dominated parliamentary government with rights protection and that the British North America Act conveyed to Canada an array of civil rights and the House of Commons is a representative body, accountable to a rights-bearing electorate. 8. This issue will be explored more fully later in this paper. For now, let me state that I agree that the House should act as a rights-protecting, representative body and does much of the time. However, this paper will argue that the representative quality of Parliament has been diminished by party discipline which effectively limits the ability of members to represent their constituents' views. Unlike the U.S. where aptly-named representatives cross party lines to truly represent their constituents on issues of importance, Canada's MPs tend to toe the party line which usually means toeing the cabinet's line. Thus, the will of cabinet, a small political elite, takes precedence over that of Canadian constituents. Canadians live under a unique federal political system in which cabinet-centred majority governments, at federal and provincial levels, are able to exercise enormous power by invoking party discipline and ramming through sweeping changes, which, under the Trudeau government included wage and price controls and the National Energy Program. This degree of power is all the more impressive - and unsettling - when it's recalled that our first-past-the-post electoral system can deliver a majority government to the party which only obtains more votes than its competitors, not necessarily a majority of votes. In the 1988 federal election, the Tories won a large majority of seats even though a majority of Canadians voted for other parties. Yet, in a three party system, the Progressive Conservatives captured more votes than either rival party, returned to office with a large majority of seats and declared a mandate to negotiate a free trade agreement with the United States. Aided by party discipline, the Brian Mulroney government then gave short shrift to concerns over loss of Canadian sovereignty and quickly approved the trade pact which underwent a far more arduous approval process in the United States. It is the view of this paper that Canada's federal and provincial legislatures are not as representative of, or accountable to, constituents as they should be - especially when contrasted with the high degree of representation found in the U.S. - and it is therefore a mistake to confer on powerful cabinets the added power of being able to override the highest courts in the land by invoking Section 33. Although it is the legislature which ostensibly invokes the override, the reality is that the real decision is made by cabinet, either at the federal or provincial level, and the members simply fall in line under party discipline. With a majority government in the House of Commons, debate on many bills is an almost meaningless exercise: The Opposition parties play their expected role and argue against a government bill they know will be passed. The government whip calls on the government MPs to fall in line and to no-one's surprise, the bill is made law. Providing something of a people's check on government, the Canadian Charter of Rights and Freedoms was, from the moment of its arrival in 1982, warmly welcomed by Canadians who saw in this document the comforting cataloguing and entrenchment of the various rights and freedoms associated with the free and democratic society we live in. Here at last was a powerful, constitutionally-entrenched charter protecting our rights and freedoms from the sweeping powers of cabinet-centred majority governments which freely used party discipline to impose their will on parliament. Yet, as pointed out, Section 33 has succeeded in giving an already-powerful government the last word on rights infringement. This paper will also argue that concerns over the potential abuse of Section 33 have proven well-founded. Quebec has demonstrated an unfortunate tendency to violate human rights while advancing an agenda pursuing 'sovereignty' for Quebecers who, like all Canadians, already enjoy sovereignty at federal and provincial levels of government. The inherent threat in Section 33, described earlier in this paper, has been acted on by Quebec which violated freedom of expression through its sign law. Quebec also invoked a blanket application of Section 33 on an array of laws, a move amounting to a pre-emptive strike against anyone who might otherwise challenge these laws. The rights of citizens should not so easily be subordinated to the whims of government. Quebec's sweeping and pre-emptory application of section 33 also contravened the intent of Charter framers Trudeau and justice minister Jean Chretien, that the override be used rarely, after debate, to correct absurd judicial decisions. 9. Quebec's use of the override is an insult to anyone who views government as a tool of the people and not the reverse. In addressing the practical consequences of Section 33, this paper will therefore examine what can be described as the 'Quebec Problem' and its impact on the rights of Canadians who reside in that province. Throughout Canadian constitutional history there has been a tendency for our governing elites to short-change individual Canadians on matters of entrenched rights and freedoms, including democratic rights which are among our most cherished freedoms of expression allowing individual citizens to utilize the vote and the political process to indicate their political preferences, ideologies and desire for change. An early example of this is the lengthy delay Canadians experienced from a British governing elite when it came to providing Upper and Lower Canadians with responsible government. It took a groundswell of public pressure and outright rebellions to force some movement in the direction of more political power-representation for individuals and less for non-elected elites in early Canadian society. Although the 1837-1838 rebellions were put down, they succeeded in convincing Britain of the need for change and this was eventually followed by greater colonial self-government and governors who were required to abide by the will of elected representatives, in short, responsible government. 10. Significantly, the British still managed to impose the 1840 union of the Canadas against the express wishes of Lower (renamed Eastern) Canadians, and delayed fully implementing responsible government until 1847, with Confederation a further 20 years away. 11. Governing elites have historically demonstrated a bias against reining in their own power to give priority to individual rights. A recent manifestation of this bias is Section 33 which essentially erodes the pre-eminence of individual rights by giving cabinet elites the ability to invade this domain at will and violate rights and freedoms. Particular attention will be paid to the history of the political process leading up to the arrival of the 1982 Charter, with examination of the federal-provincial power struggles and compromises struck by the federal government to constitutionally entrench the Charter. It was with considerable reluctance that the federal government agreed to Section 33 in an effort to win provincial support for the Charter. This paper will conclude by advocating the outright elimination of Section 33, or, failing that, substantial ammendments which would restrict use of the notwithstanding clause to the federal government (which has shown much less tendency to violate human rights). The suggested ammendments to Section 33 should, taken together, have the effect of limiting the ability of legislatures to violate rights, while at the same time retaining a degree of legislative supremacy. However, the preferred option, in the view of this paper, remains the outright elimination of the section 33 override clause. Legislatures are able to exercise enough supremacy over the economy, natural resources, social programs, taxation, cultural programs and a myriad of measures affecting our lives without needing special powers to violate freedoms which are called fundamental in this country and are actually treated as fundamental in most enlightened, modern democratic nations. Beyond reasonable limitations that are demonstrably justified in a free and democratic society, our rights should not be tampered with. Our politicians are not being paid to deny us our basic human rights. Government exists to serve us - not the reverse. This hands-off message concerning rights is all the more important given Quebec's determination to violate the rights of Canadians who happen to reside in that province. That issue will be dealt with more fully in the following chapters, beginning with our next chapter on the Charter's evolution. 1. Constitution Act 1982, Part One, The Canadian Charter of Rights
and Freedoms, section 33. |
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