Libman: Minority rights hang in balance after Supreme Court hearings
“We must trust our democracy. Elected representatives and the electorate are also guardians of the Constitution, and we must assume that the government will govern itself in the public interest.”
Those are the words of lawyer Isabelle Brunet, representing the Coalition Avenir Québec government, in testimony before the Supreme Court this week on Bill 21, which bans public servants such as teachers and police officers from wearing religious symbols on the job.
Brunet was defending the notwithstanding clause, which was also on trial this week. Quebec used the clause pre-emptively to shield Bill 21 from being struck down by the courts, presumably expecting it would be found to infringe on charter rights and fundamental freedoms of conscience and religion.
The notwithstanding clause was included in rights charter of the repatriated 1982 Canadian Constitution as a last-minute compromise to win over support of the premiers, thus maintaining for legislators the ultimate last word if, for example, judges struck down a law for violating certain rights. The general understanding was that the clause was meant to be used under exceptional circumstances.
What “assumption” can Brunet make about how governments will govern and what does she mean by the “public interest”? Her stance clearly disregards the democratic tenet of safeguarding individual and minority rights against the potential tyranny of the majority, and dismisses the relevance of the judiciary and Supreme Court in providing the checks and balances that are necessary in any functioning democracy.
As governments are elected by a plurality of votes, their success is naturally driven by appealing to majority opinion. Every so often, a certain populist issue is framed into legislation that may infringe on minority rights. Who protects those rights in those circumstances? Who decides on the scope and limits of those rights?
Without the courts as the arbiter to determine whether the legislator goes too far, minority rights are invariably vulnerable. This is why we have charters of rights serving as a blueprint for governments to respect, and for courts to protect.
In the current case, there are essentially three possible outcomes:
The Supreme Court could decide exceptionally that notwithstanding the notwithstanding clause, Bill 21 violates fundamental freedoms — and strike down the law entirely. But this is implausible as the clause is clearly part of the Constitution as an override mechanism.
Conversely, the court may determine that the override shield is impenetrable, and its use bars the court from even addressing the substance of Bill 21 and its impact on rights.
The more likely scenario is that the court finds Bill 21 in violation of rights but is unable to strike it down because of the notwithstanding clause. (Whether it carves out English school boards — based on constitutional minority-language education guarantees, which are exempt from the clause — remains to be seen.)
The court may also softly criticize the government’s cavalier approach in invoking the clause pre-emptively and recommend a more rigid process — as did the Quebec bar when it suggested, for example, that the legislator clearly set out justifiable reasons for its use, or hold consultations beforehand.
Though it’s unlikely to be rendered before the fall election, a judgment that upholds most of the law — thanks to the notwithstanding clause — would at least limit any nationalist backlash. It would weaken the separatist argument that Quebec must be independent to protect its own laws when Canada’s Constitution continues to allow the province to violate rights at will.
Still, this scenario exposes the dangerous assumption in Brunet’s statement and the glaring existence of an escape hatch allowing legislators to bypass checks and balances against their power and ability to override rights.
It was Chief Justice Richard Wagner who prompted Brunet’s comment when he raised the spectre of a “tyrant” exploiting the notwithstanding clause to infringe on fundamental rights.
In a just society, it is not only the majority — but particularly the minority — that should be able to “trust our democracy.”
Robert Libman is an architect and planning consultant who has served as Equality Party leader and MNA, mayor of Côte-St-Luc and a member of the Montreal executive committee.
The post Libman: Minority rights hang in balance after Supreme Court hearings appeared first on Montreal Gazette.