Andrew Potter characterizes our next big constitutional bun-fight as an exploded time-bomb in the Canadian Charter of Rights and Freedoms:
In 1982, Prime Minister Pierre Trudeau and the provincial premiers inserted a time bomb into the Canadian constitution. It finally went off last week, when an elementary school teacher in West Quebec was removed from the classroom for wearing a hijab, in violation of Bill 21, the province’s secularism law.
The case has generated no shortage of outraged commentary in Canada and abroad, with many denouncing what they see as the “bigotry” of the Quebec law. In The Line on Tuesday, Ken Boessenkool and Jamie Carroll argued that far from implementing a secular state, Quebec has simply imposed a state religion that takes precedence over private belief. In response to these criticisms, many Quebecers say that this is just another round of Quebec bashing. The rest of Canada needs to recognize that the province is different, and to mind its own business.
But it is important to realize that something like this was going to happen sooner or later. The patriation of the constitution and the adoption of the Charter of Rights and Freedoms in 1982 seriously destabilized the Canadian constitutional order, and the twin efforts of the Meech Lake and Charlottetown accords to fix that instability only made things worse. But the real ticking bomb here is s.33 of the Charter, a.k.a. the notwithstanding clause, which allows legislatures to override certain sections of the Charter for renewable five-year terms.
The basic tension is between two more or less incompatible views of the country. On the one hand there is the original concept of a federal Canada, where citizens’ political identities are shaped by and through their relationship with their provincial, and to a lesser extent, national, governments. On the other hand, the Charter created a newer understanding of Canadians as individual rights bearers with political and social identities prior to the state, underwritten by the Charter itself.
