The legislature of Saskatchewan sat Tuesday, two weeks before it was originally scheduled to return. What emergency warranted this hasty recall? Civil disorder? Flood relief? Declaration of war?
Close: it was to pass a law requiring children under 16 to obtain parental consent before changing their pronouns at school. You can see how time would be of the essence here. After all, if the legislation were not passed this week, it would have to be passed two weeks from now.
Well, no. What’s really driving the government’s haste is the desire to be seen to be “standing up to the courts.” No legislation is needed to put the policy into effect: it was implemented by regulation back in August. Such was the haste with which it was put together, however – drafted and implemented inside of five days – that a judge was persuaded to order a pause before it went into effect, on Charter of Rights grounds.
The judge did not overturn the regulation, understand. He simply directed the government to take some time to assess its possible impact, particularly on the children involved. At the very least, he suggested, it might figure out what actual problem it was trying to solve.
The government, in short, had only to show what it ought to be able to show with any legislation: that the good to be achieved outweighed the harm that might arise, in this case to the rights of a particularly vulnerable minority. Rather than take this elementary step, however, Premier Scott Moe chose to invoke the notwithstanding clause, overriding the Charter. That’s why the legislature had to be recalled early.
Haste upon haste upon haste, and all so that a handful of parents might find out something a little earlier than they would otherwise. It’s preposterous.
But then, this isn’t about the parents, or the children. It’s about politics. It’s about pandering to obscure fears and broader resentments – of teachers and bureaucrats and assorted other eggheads. And it’s about picking a fight with the courts, to teach those uppity judges a thing or two in the bargain.
If it were just a matter of a particular bill in a particular province, that would be one thing. But this is the eighth attempt to use the clause, by four provinces, in the past five years, each of them every bit as ridiculous, and as appalling, as the last: from banning the wearing of religious symbols in the public sector (Quebec) to banning public sector unions from striking (Ontario) to banning English in the workplace (Quebec again).
This is the grubby reality of the notwithstanding clause. Its conservative advocates like to get all misty-eyed about parliamentary supremacy – as if the Charter itself were not an act of Parliament – or raise the spectre of some crazed, rogue court abolishing the Criminal Code or whatnot.
But wherever and whenever the clause is actually used, we see what it is really about: raw power, arbitrary and unjustified, usually for the purpose of beating up on unpopular minorities.
Just as previous uses of the clause have emboldened Saskatchewan’s government, so this latest assault on the Charter will embolden others: a kind of social contagion. But then, that is in the nature of the clause. Its very existence is a standing invitation to its use.
Yes, I see you there, with your hand up. Yes, I’m aware the notwithstanding clause is part of the Charter. But it is nonsense to pretend this was what the people who drafted and passed it had in mind in 1982. They thought, and said, it would be invoked only in the most exceptional circumstances. That might have been tolerable in principle, even if it was never likely to be observed in practice. But a Charter that is routinely overridden is not a Charter at all.
This is of more than legalistic interest. The Charter was an essential part of the 1982 constitutional bargain, the sole counterweight to its broadly decentralizing thrust. If the Charter is no longer to have any practical effect, one of the few remaining ties binding the federation is gone.
And there is another, even older bargain at stake. The clear understanding at Confederation was that rights would be protected by the federal government. Over time, this gave way to the courts. But if the courts are no longer permitted to do so, that leaves rights, for the first time in our history, with no protection at all. This is more than an affront to liberty: it is an abdication of nationhood, one that no federal government should tolerate.
Does the current crew in Ottawa understand this? Does anyone?
Andrew Coyne