We at The Line contend that Sean Fraser, the current minister of justice and attorney general, has made two major mistakes of late.
The first was in deciding not to rescind his decision to spend more time with his friends and family when it became clear that Justin Trudeau was no longer an anchor on his electoral chances. After failing to fix Canada’s housing problem and proving himself integral to blowing apart a pan-partisan consensus on immigration that was once the envy of the world, the man had a real opportunity to leave office on a high note. But, no.
Instead, after hitching his bloated baggage to Mark Carney’s trunk, Fraser decided that Canada needed more of him.
And so, as justice minister, instead of addressing petty stuff like, oh, bail reform, or fixing prisons, or getting crime under control, he turned his attention to … Section 33 of the Charter of Rights and Freedoms. The notwithstanding clause.
You may recall that Quebec’s contentious Bill 21 — which prohibits public-service employees in positions of authority, and teachers, from wearing religious symbols while on the job — is currently before the Supreme Court of Canada. Despite numerous mixed rulings on the law, Quebec moved forward with its stance on secularism by invoking Section 33, which allows parliaments to temporarily override judicial rulings.
Section 33 was placed in the Charter for precisely this kind of situation; one in which the courts and parliament disagree about governance. As we still live in a democracy, and are still nominally governed by representatives we elect, the clause was always a bit of a compromise gesture intended to preserve parliamentary supremacy after granting the courts broad powers to basically reinterpret law according to an expansive and ever-expanding understanding of both their jurisdiction, and of the concept of “rights” writ large.
Section 33, nonetheless, has maintained a heavy odour about it, which has generally limited its application, especially outside Quebec. Among the Sean Fraser set, and the largely Liberal collection of lawyers who will insist that the Supreme Court isn’t remotely political, and how dare we entertain the thought, Section 33 was only ever intended as a symbolic right.
But as the definitely-not-political Supreme Court has edged ever deeper into the territory of override and governance, so too have provincial parliaments responded with a very not-symbolic application of the clause.
We do think there’s some blame to be placed at everyone’s door, here. But we also never really took much issue with Section 33. That’s because, at heart, we at The Line believe in, well, democracy. We believe that the people we elect should be able to decide our laws; and we believe that while the Supreme Court of Canada serves as an important check on Parliamentary power, that power doesn’t and should never override the will of the people.
And that’s basically where we part ways with Fraser and many of his — dare we say it? — Laurentian Consensus ilk. Because the unstated critique of the use of Section 33 is basically always the same: these people dislike the application of the clause because they think politics is icky, and that politicians fundamentally cannot be trusted.
In other words, these people don’t actually want a democracy.
They want a technocracy. One in which the smartest and ablest individuals (as defined by them, of course) are the ones who actually get to set the rules and guardrails for society writ large. One in which parliament really is as theatrical, symbolic and pointless as it often regards itself.
There’s an obvious illogical inconsistency here — Fraser and his colleagues are politicians. We aren’t sure if this desire to go out and limit the ability of he and his fellow parliamentarians to do the best jobs they can for the citizens reflects mere self-loathing, or a particular brand of Liberal blindspot, one that leads them to believe that they alone among politicians are exempt from anything as crass political considerations and/or motivations. Those moral failures are apparently for the other guys. But in any case, we have an elected official making the case that unelected courts should have the ability to override legislators, and that the legislators should have no recourse. However Fraser rationalizes this to himself, it’s where we are.
We think the people who have issues with Section 33 are generally not being honest with themselves in that regard; we also think that their instinctual aversion to politics (or their exemption of themselves from it) tends to make them naive. If you vest all the real power of governance in a “non-partisan” Supreme Court, what you’ll get is not a dispassionate government, but rather a heavily politicized Supreme Court. We need only look at what has happened in the U.S. over the past 30 years to see how that pans out in the long run.
Look, we at The Line don’t like Bill 21. It’s a bad law. It needlessly tramples on minority rights. But there’s a very obvious way to get that law repealed that doesn’t involve flirting with a full-blown constitutional crisis in the midst of, you know, all of the other crises going on right now.
Elect a government that will repeal that law.
That’s what democracies do.
To me, one of the most puzzling things about the Carney government’s recent actions is the overall incoherence of them. They are going ahead with one of the worst policies inherited from the Trudeau years with the “gun buyback” program that the minister responsible has openly admitted is almost completely a sop to voters in Quebec. Okay, that makes cynical sense as the Liberal vote is about as “efficient” as it possibly can be so losing just a few seats in Quebec would make it impossible for the Liberals to get re-elected. Fine. Scummy as hell, but fine. Yet the challenge to Section 33 is guaranteed to piss off far more Quebec voters — and stir up controversy across the country to boot — and you’re going to stage a pitched battle against pretty much all the provinces before the Supreme Court? Are you sure about that?
