ZUMA via DW

Lisa Van Dusen

January 24, 2023

At a time when human rights are under attack across the globe — when the executions of Iranian protesters, the revocation of reproductive rights for American women, Russia’s daily brutality against Ukrainians, the accumulating atrocities of Myanmar’s military and a whole range of Orwellian violations of privacy and human integrity make up just the first 30 tweets of your morning timeline — any state subversion of human rights is both local and global.

Beginning just before the dawn of this millennium, the internet began to change the way change happens by eliminating space and time as obstacles to shared experience, telescoping the butterfly effect to an instantaneous possibility and making our psychosocial context — notwithstanding isolated pockets of un-connectedness and censorship — virtually contiguous. When the governor of Florida, for instance, attacks human rights and freedoms in a spectacular, previously unthinkable fashion, the location of that norm assault makes it disproportionately advantageous to the global war on democracy based on the shock value of its American dateline. And the global trend of democracy giving way to states acting similarly against their own citizens through encroaching brutality and digital authoritarianism depends on a transitional stage of legislating against freedoms that have long been not only legal but valued within democracies and cherished aspirationally elsewhere.

For nearly 40 years, Section 33 of Canada’s Charter of Rights and Freedoms, commonly known as the “notwithstanding clause”, remained relatively un-abused; a “break glass in case of emergency” constitutional fire axe used only four times outside Quebec between 1982 and 2018.

Since 2018, Quebec has used it pre-emptively to override the Charter in two controversial cases — Bill 21, in which the state finds a role for itself in the workplace wardrobes of members of key demographic groups, and Bill 96, which further tightens the province’s protective French language laws. Also controversially, Ontario Premier Doug Ford has treated the notwithstanding clause as a sort of political get out of jail free card, threatening its use even in cases where it had no normative or legal place twice, and deploying it pre-emptively once, as cover for an election spending bill.

This week, Prime Minister Justin Trudeau, whose Greek-drama casting as the son of the father of the notwithstanding clause is meant to put him in a politically squeamish position on the issue, told La Presse’s Joël-Denis Bellavance that, through the misuse of the notwithstanding clause, governments are “normalizing the suspension of fundamental rights.” He actually used the word “banalisation”, which some have translated to the less systemic “trivialization”.

In any rational political context, Trudeau’s observation — one he’s made on previous occasions — would have been processed publicly, including, up to a point, by the other belligerents in this debate, as a “water is wet” statement. If the increased frequency and pre-emptive rationalization of the invocation of a constitutional waiver firewalling legislation against human rights protections isn’t the normalization of the suspension of fundamental rights, what is it? Trudeau’s “threat” to take the question to the Supreme Court was also a reiteration — see the Montreal Gazette’s Phil Authier from May, 2022: Ottawa to join Supreme Court challenge of Quebec’s Bill 21/“Justice Minister David Lametti also expresses concern about Bill 96, raising the ire of Premier François Legault.”

But, because we are in a period in the evolution of democracy whereby all manner of propaganda — performative, digital, rhetorical — is unleashed hourly to make right seem wrong, bad seem good, absolute BS seem like something other than intelligence-insulting nonsense and democracy itself seem like bedlam, we are elsewhere.

If the increased frequency and pre-emptive rationalization of the invocation of a constitutional waiver firewalling legislation against human rights protections isn’t the normalization of the suspension of fundamental rights, what is it?

“This desire expressed by Justin Trudeau,” Legault tweeted in French in response to Trudeau’s La Presse interview, “is a frontal attack on our nation’s ability to protect our collective rights.” It is an attack, Legault said, on Quebec’s “democracy and people” adding that, “Quebec will never accept such a weakening of its rights. Never!”

Projection and misdirection — as you may have noticed all day long during the illustrious presidency of Donald Trump — are among the many propaganda stylings that have been banalized since the days when Pierre Trudeau reluctantly agreed to the notwithstanding clause as the poison pill that both enabled the adoption of the Charter and consigned it to the fate of being only as effective as the country’s most bloodless premier on any given day — guardrails he clearly presumed democracy would remain healthy enough to uphold within reasonable limits. Indeed, on January 6^th 2021, among Trump’s last words to the assemblage of thugs he incited to fatally storm the US Capitol were: “We’re gathered together in the heart of our nation’s capital for one very, very basic and simple reason: To save our democracy.”

The larger, borderless context of attacks on human rights norms via — among other tactics, overt and covert — the unprecedented exploitation of previously un-excavated constitutional vulnerabilities and constitutional weakening tricked-out as “reform”, has been a key element of the recent trend in democracy degradation from the United States to North Africa to Eastern Europe to Latin America. There are too many clichés to marshal here but, to cite just three: “Canadian rights are human rights”, “Injustice anywhere is a threat to justice everywhere” and, in a planetary, unified-field content sphere, “All human rights declensions are global”. “Canada has yet to produce a Donald Trump,” per The Economist in its December 8^th, 2022, piece about the notwithstanding clause, The ticking bomb under Canada’s constitution, “but it may have weaker constitutional defences than the United States if such a person appears.”

Within that context, Trudeau’s obligation as prime minister in taking the question to the Supreme Court outweighs any domestic political considerations — including in Québec — that may be at play. François Legault, as a very smart man and a very canny politician, knows that.

In the 2018 editorial Donald Trump as Global Constitutional Breaching Experiment in the Cambridge University Press journal Global Constitutionalism, the authors observed that, “What we see…is a pattern of Trump breaching a widely accepted norm, and a massive backlash to defend the norm when that breach occurs.” Perhaps the norm-breaching involving the banalized use of the notwithstanding clause to undermine human rights will produce the same sort of backlash.

At the very least, at a time when supreme courts from Washington to Jerusalem are also being tested from outside and within, the process will provide clarity as to the state of Canada’s.

Policy Magazine Associate Editor Lisa Van Dusen has served as a senior writer at Maclean’s, Washington columnist for the Ottawa Citizen and Sun Media, international writer for Peter Jennings at ABC News and an editor at AP National in New York and UPI in Washington.