In recent weeks, we have seen the government of Canada attempt to limit the Charter’s notwithstanding clause and announce that it would seek leave to appeal a unanimous Federal Court of Appeal decision that found the 2022 invocation of the Emergencies Act was unconstitutional. This federal government is cavalier about our rights.
Section 33 of the Charter provides that Parliament or a provincial legislature may declare in a statute that all or part of the statute shall operate notwithstanding certain Charter provisions. The Quebec National Assembly so decreed for its secularism law banning public sector workers from wearing religious symbols while on the job. The notwithstanding clause is controversial, but what is important — and clear — is that it was open to the Quebec National Assembly to invoke it so as to preclude challenges based on some of the rights included in the Charter. Attempts by the federal government to sideline the clause, or to curtail its application, are seen by Quebec and most provinces as an affront to their prerogatives within the federation.
Only about a week before the Supreme Court heard arguments on the secularism law, the federal government announced that it would seek leave to appeal the unanimous decision of the Federal Court of Appeal upholding the trial judge’s ruling that Ottawa’s 2022 proclamation of the Emergencies Act to end the truckers’ — “freedom” — convoy was unreasonable and infringed the Charter right to freedom of expression. Its appropriation of the bank accounts of participants in the convoy was also found to infringe a Charter right to be secure against unreasonable search and seizure.
The list of incursions upon rights does not end here.
The federal government and its agencies have become blasé about section 15(1) of the Charter: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin. colour, religion, sex, age or mental or physical disability.”
Consider the establishment of more than 2,000 Canada Research Chairs, an initiative of the Chrétien government to help Canada recruit and retain top talent in its universities. Diversity requirements were put in place in 2019 that now require, by 2029, that women and gender minorities must make up 50.9 per cent of all research chairs; 22 per cent must be visible minorities; 7.5 per cent must be people with disabilities, and 4.9 per cent must be Indigenous persons. If universities do not meet these requirements by 2029, they must hire only from designated groups until gaps are closed.
Affirmative action is not precluded by section 15(1) of the Charter, but that does not mean that all affirmative action is Charter compliant, good public policy or advances equality. These strict quotas are a toxic product of affirmative action driven by identity politics. They exclude a large cohort from competing for 85 per cent of Canada Research Chairs regardless of their qualifications and achievements. Universities are parties to this rank discrimination, some perhaps reluctantly, but they do not want to lose funds by putting themselves offside with federal requirements.
Woe betide any institution that challenges this discrimination. In an effort to ensure compliance, the federal Tri-agency Institutional Programs Secretariat contacted the University of Alberta after it stepped back from its DEI — diversity, equity and inclusion policies early last month. Apart from intrusiveness on matters of concern primarily to the province and its largest university, the federal government’s sanctioning of discrimination in CRC appointments reveals that an ideology is at work here and there is no room for disagreement.
There are enthusiasts in favour of this discrimination, including many in influential positions that can promote its continuance. Hopefully there are many others — particularly in provincial governments that are responsible for education — that will insist upon an end to this federal imposition of quotas.
The rest of us can only wonder how Canada has come to this. No other liberal democracy has gone to these lengths in subverting the rights of individuals to equality before the law and freedom from discrimination.
National Post
Peter MacKinnon served as president of three universities. He is a senior fellow of the Macdonald-Laurier Institute and the Aristotle Foundation.