An election about the Charter? What does the PM have to lose?

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The Charter of Rights, already reeling under Justin Trudeau, would take a final bullet at the hands of Prime Minister Pierre Poilievre.

Long the object of conservative wrath, the Charter is fast on its way to irrelevance, thanks to a cascading series of decisions by conservative provincial governments to override it, by means of the notwithstanding clause.

Liberal legal scholars who fantasized that the clause would be invoked only rarely, or in extremis, have had to eat their words.

The late senator Eugene Forsey’s warning, that the clause was a “dagger pointed at the heart of our fundamental freedoms” – that its mere presence implied the rights in the Charter were not guaranteed, but contingent, thus almost inviting its use – has instead been vindicated.

And each time it is used, it becomes easier to use it again. A Charter that can be evaded so routinely might as well not exist.

Until now that has been the work of the provinces. Though Mr. Trudeau can be faulted for not defending the Charter from their depredations, and though his own legislation has at times run afoul of it (where is that Charter statement on the Online Harms Act, anyway?), he has not himself resorted to the override. Neither has any prime minister before him – not even Stephen Harper, much of whose criminal law agenda was gutted by a Charter-wielding Supreme Court.

But Mr. Poilievre has made it clear that he will be the first. The specific casus belli – his desire to revive legislation imposing consecutive, rather than concurrent sentences in cases of multiple murders – is irrelevant, a transparent pretext. The Conservative Leader wants to override the Charter purely for its own sake: to set a precedent, to make a point, to show that he can, to own the libs.

As always, the same tired arguments will be trotted out in his defence. “It’s in the Constitution.” That doesn’t mean it should be. “It was part of the bargain among the framers.” So was the three-fifths clause. Times change. And my favourite: “Judges get it wrong sometimes.” Yes, they do. In criminal trials, for instance. Happens all the time. Should the legislature step in there, too?

The reason we do not allow the legislatures to decide criminal trials has nothing to do with any presumed infallibility of the courts. Neither does the Charter, and the judicial review that enforces it. It has to do with the proper role of each branch of government.

The Charter is essentially a promise, a written contract with the public, in which Parliament and the provinces agreed to respect certain limits in their laws and acts, so far as these touched upon the rights of the people. It is not up to the signatories of a contract to decide for themselves whether they have abided by it. That is what the courts are for.

If the federal government joins the provinces in stomping on the Charter, it is effectively dead. And if the Charter falls by the wayside, much else will as well. It isn’t only the Charter the provinces have taken to trampling upon lately, after all: it is the whole constitutional order, the division of powers, the very rule of law. Mr. Trudeau, again, has done nothing to stop this. But Mr. Poilievre would be giving it his blessing.

We know what Mr. Poilievre will do. The question is: what will Mr. Trudeau? Does he want his legacy to be the dismantling of his father’s greatest achievement?

Or will he use the time he has left to carry the fight to Mr. Poilievre and the premiers – culminating in an election about the Charter? Maybe he’ll still lose. But how does he want to go: with a bang or a whimper?

He’ll have to prepare the ground first. It won’t be enough just to warn the public about what Mr. Poilievre will do. Rather, he will have to establish his own bona fides as a Charter defender, after so many years of passivity and worse. Shelving the Online Harms Act would be a good place to start. Then pass a resolution in the House forswearing any federal use of the notwithstanding clause.

And then: legislation committing the federal government to use the power of disallowance against its use by the provinces. Or against any pre-emptive use, that is in the absence of any actual inclement court ruling. Or against its use, as two constitutional scholars have suggested, in ways that would put Canada offside of its international legal and human rights commitments.

Precisely where to draw the line in defence of the Charter can be debated. But the hour is late. An election about the Charter may or may not save the Prime Minister’s government. But it would do much to rescue his reputation.