Pierre Poilievre’s reference to ‘my laws,’ is eerily reminiscent of Donald Trump’s vocabulary. Laws do not come from one individual, but are introduced by governments, usually under the guidance of the justice minister, and the prime minister.

By Sheila Copps
First published in The Hill Times on May 13, 2024.

The Canadian Charter of Rights and Freedoms may not mean much to those who have grown up under its protection.

But if you look to many of the reasons Canadians are respected around the world, it is because of the way minorities are treated here.

Whether it be gender equality, visible minority treatment, gays, lesbians, or transgendered rights, the 1982 Charter has paved the way for everything from access to abortion to gay marriage.

The fact that several provincial premiers have already moved to ignore those rights by invoking the “notwithstanding” clause included in the Charter has definitely raised a few eyebrows.

But the signal sent recently by Conservative Leader Pierre Poilievre should send shivers down the spine of every Canadian who values equality.

At a meeting of the Canadian Police Association, Poilievre made it very clear that he would use the notwithstanding clause to make sure his government’s legislation is never overturned by the courts.

“All of my proposals are constitutional. And we will make sure—we will make them constitutional, using whatever tools the Constitution allows me to use to make them constitutional. … I think you know exactly what I mean.”

In explaining what he meant, Poilievre went on to say, “I will be the democratically elected prime minister—democratically accountable to the people, and they can then make the judgments themselves on whether they think my laws are constitutional because they will be.”

Clear as mud. However, for those who do not want to get mired in the constitutional details, it may not matter that a candidate for prime minister foresees the use of the notwithstanding clause under his watch.

For those who think it doesn’t affect them, they should be aware that it was the Supreme Court of Canada that legalized abortion after determining that the existing law on the subject was deemed unconstitutional because of the Charter.

It was also the Supreme Court that awarded a pension to the partner of a gay man who was denied pension rights by Canadian law, another Charter violation.

It was the Charter that paved the way for parental leave for fathers. Shalom Schachter secured that leave via a successful Charter challenge after his unemployment claim to three weeks off following the birth of his daughter was denied.

The Charter also paved the way for minority official language education across the country. Before the Charter’s introduction in 1982, the majority of provinces refused to educate francophones in their mother tongue.

Charter equality provisions prompted francophone groups across the country to sue governments, and secure their Charter rights to a full education in their language.

Abortion, parental leave, gay rights, minority language rights, and equality for women are just some of the equality outcomes of Charter challenges.

And those challenges would not have been possible if the federal government, under the leadership of Pierre Elliott Trudeau, had not repatriated the British North America Act from the United Kingdom and amended it to include a uniquely Canadian Charter.

At the time, some provincial governments were less than enthusiastic about the repatriation, so the application of the notwithstanding clause was the only way they would sign on.

No one ever expected that, in future, a national government would override its own legislation.

Perhaps Poilievre thinks he is so far ahead in the polls that now is the time to lay out controversial aspects of his plan for governance.

After all, most Canadians pay very little attention to the Charter, and have no idea what an impact it has made on the shape of our country.

But by signalling his controversial views, Poilievre is continuing to paint a picture of what kind of leadership he would offer were he elected prime minister.

If the courts deem that any law violates the Charter, he will simply apply the notwithstanding clause to override it.

That sounds scarily like the threats emanating from former American president Donald Trump who cares little for what is legal, and makes no secret of the fact that if he were re-elected, he would simply throw out all the laws he doesn’t like.

Poilievre’s reference to “my laws,” is eerily reminiscent of the vocabulary used by Trump. Laws do not come from one individual, but are introduced by governments, usually under the guidance of the justice minister, and the prime minister.

As justice minister, Jean Chrétien was deeply involved in Charter negotiations with the provinces.

The Charter shaped modern Canada.

Canadians should be rightly leery of a leader who wants to override it.

Sheila Copps is a former Jean Chrétien-era cabinet minister and a former deputy prime minister. Follow her on Twitter at @Sheila_Copps.

Human rights organizations and feminists rose to support a movement that forced all the men involved in the Charter drafting to back down. At the time, federal ministers Monique Bégin and Judy Erola led the charge.

By Sheila Copps
First published in The Hill Times on April 25, 2022.

OTTAWA—As the 40th anniversary of the Charter of Rights and Freedoms was celebrated last week, much was written about the effect of the new law on Canada.

Some great ideas on Charter improvements, including multiple suggestions on how to tighten up the notwithstanding clause, open the door for a new constitutional debate.

But there were two elements of the Charter battle that got little attention.

The first was the role played by women politicians of all parties to save the equality clause in the Charter.

Back in 1982, I was the sole woman in the Opposition Ontario Liberal caucus. We were six women altogether representing three parties in the 125-seat assembly.

The fight for Charter equality was the first and only time that we all got together to strategize for a Charter change to fully protect women’s rights.

At the time of the initial Charter agreement, the rights of women, articulated in Sec. 28 of the agreement, were supposed to be subject to the Sec. 33 notwithstanding clause.

What that meant was that if any government wanted to ignore equality rights, all it had to do was invoke the charter to bypass women’s right to equal pay, right to access housing, healthcare, etc.

The charter of inequality had been signed by all first ministers except Quebec, so male politicians were loath to reopen with the document.

Women across the country were livid, and Canada witnessed a female political consensus the likes of which it has never experienced before or since.

Human rights organizations and feminists rose to support a movement that forced all the men involved in the Charter drafting to back down.

At the time, federal ministers Monique Bégin and Judy Erola led the charge. They reached out to female legislators across the country from all political parties, organizing a movement to force all parliaments to support a Charter amendment that would remove the notwithstanding clause from any oversight of women’s rights.

Bégin would later become beloved for her work in the creation of the Canada Health Act. Well-known as the mother of medicare, in 1984, Bégin implemented the legislative framework for hospital care across the country. That legislation secured universal access for all which has remained in place to this day.

Erola, the first female minister of mines, was equally capable, reaching out to legislators across party lines in an effort to secure women’s equality.

The pair organized a group of female politicians across the country, determined to amend the proposed Charter.

We were fighting an uphill battle.

Some premiers were adamant that there could be no changes to the initial document that had been agreed to by all provinces except Quebec.

Since any new change might prevent the Canadian Constitution from being repatriated from Westminster, the federal cabinet did not want to rock the boat.

The notwithstanding clause had already covered other groups, like francophone minorities outside Quebec, so there was a belief that any change, including full equality for women could cause the whole house of cards to collapse.

But the ferocity of women’s anger could not be ignored. Premiers across the country quickly backed down when they saw how women had united in favour of our equality.

The proposed Charter was amended and women’s rights were fully protected before the document was repatriated in April 1982.

The second element of the charter which received little attention but prompted huge social change was the section which proffered rights to all Canadians in both official languages.

Until the Charter was drawn up to protect minority linguistic rights, most francophones outside Quebec had little access to schooling in their language.

They were undereducated and poorly paid, making up the lowest earning group in the country.

As the Charter took hold, and provinces were forced by law to start offering minority language services, that situation turned around.

With robust French-language education available for francophones across the country, the level of education catapulted quickly.

Within twenty years, the poorly-paid, undereducated francophones became the best-educated, and most highly paid group in the country.

Unlike women’s rights, minority language rights were subject to the notwithstanding clause, causing Ottawa Liberal Member of Parliament Jean-Robert Gauthier to vote against the Charter repatriation.

Gauthier did not secure institutional bilingualism for all provinces, nor did the Charter enshrine French-language school boards and education. But the result of the Charter was that every province was eventually cajoled or sued into guaranteeing minority language rights in education.

Women and francophones were the real Charter winners.

Sheila Copps is a former Jean Chrétien-era cabinet minister and a former deputy prime minister. Follow her on Twitter at @Sheila_Copps.