Open this photo in gallery:
Prime Minister Justin Trudeau stands during question period in the House of Commons on Parliament Hill in Ottawa on May 8.Spencer Colby/Canadian Press
The Charter of Rights, already on shaky ground under Justin Trudeau's government, will receive its final shot at the hands of Prime Minister Pierre Poièvre.
The charter, long the subject of conservative ire, is rapidly becoming worthless thanks to a series of decisions by conservative local governments to invalidate it despite its provisions.
Liberal jurists who had fantasized that the clause would be invoked rarely or only in extreme cases are now forced to listen.
The late Sen. Eugene Fausey said the clause was “a dagger to the heart of our fundamental freedoms” and that its mere existence does not guarantee Charter rights, but makes them conditional. It hinted that it was about to invite its use, but the warning was dismissed. It was right.
And each time you use it, it becomes easier to use again. There is almost no other charter that can be so routinely circumvented.
Until now, this was a local job. Prime Minister Trudeau can be accused of failing to protect the Charter from their predatory practices, even though his own laws sometimes conflict with the Charter (in the first place, the Charter on Online Harms Laws). Where is the description?), he himself never resorted to it. override. No prime minister has come before him, not even Stephen Harper, who had much of his criminal law agenda watered down by a Charter-wielding Supreme Court.
But Poièvre made it clear he would be first. The specific reason for the case, his desire to reinstate a law that imposes consecutive rather than simultaneous sentences for multiple murders, is irrelevant and a transparent pretext. Conservative leaders want to repeal the Charter purely for its own sake: to set a precedent, to make a point, to show what it can do, to seize freedom.
As always, the same tired arguments will continue to be made in his defense. “It's written in the Constitution.” That doesn't mean it has to be that way. “It was part of the deal between the framers.” So was the three-fifths clause. Times change. And my favorite is “Judges sometimes get it wrong.” Yes, they do it. For example, in a criminal trial. It happens all the time. Shouldn't the legislature also intervene?
The reason we do not allow the legislature to decide criminal cases has nothing to do with the presumption of infallibility of courts. The same goes for the Charter and the judicial review that enforces it. It concerns the proper role of each branch of government.
The Charter was essentially a promise, a written contract, with the people, in which Congress and the states agreed to respect certain limitations of laws and statutes as far as the rights of the people were concerned. It is not up to the signer of the contract to decide for himself whether he has complied with the contract. That's what courts are for.
If the federal government joined the states and trampled on the Charter, the government would effectively cease to exist. And if the Charter fails, many other things will fail as well. After all, it's not just the Charter that states are trampling these days, but the entire constitutional order, the separation of powers, and the rule of law itself. Mr. Trudeau also did nothing to stop this. But Mr. Poilievre would bless it.
We know what Mr. Poilievre does. The question is, what will Mr. Trudeau do? Does he want his legacy to dismantle his father's great achievements?
Or will he use his remaining time to fight Mr. Poilievre and the prime minister, culminating in an election over the Charter? Maybe he will still lose. But how does he want to go? Does he scream?
He would have to prepare the ground first. It is not enough to warn the public about Mr. Poilievre's actions. Rather, he will have to establish his true status as a Charter defender after years of passivity or worse. A good place to start is by shelving online harm laws. The House then passes a resolution prohibiting the federal government from applying the provision.
and laws that require the federal government to exercise disallowance powers in response to states' exercise of disallowance powers. Or against preemptive use in the absence of an actual harsh court ruling. Or, as two constitutional scholars suggest, object to its use in a way that disregards Canada's commitments to international law and human rights.
Exactly where to draw the line in upholding the Charter is up for debate. But it's late. An election over the Charter may or may not save the Prime Minister's government. But it would go a long way in saving his reputation.
