Populism is on everyone’s lips these days.
In his new book, Stephen Harper warns that unless we address the underlying grievances that lead to populism, we risk Trumpian consequences or worse. In Ontario, Doug Ford railed against a court decision that opposed the will of an elected government. And closer to home, premier-designate François Legault’s Coalition Avenir Québec has swept to victory on a populist wave of change.
A central plank of populist politics is how to maintain “our” national identity. The CAQ has proposed a ban on wearing signs of religion that would apply to people in positions of authority, including teachers and police officers.
Legault threatens to invoke the notwithstanding clause to avoid the inevitable (and likely successful) court challenges that will ensue under the Canadian Charter of Rights and Freedoms. Legault claims that he is justified because “the majority of Quebecers agree.”
Of course, plenty of countries have bowed to majority will and violated minority rights — for example in France, where the firing of a Muslim teacher for wearing a headscarf was the subject of a 2018 decision of the United Nations Human Rights Committee. The committee found that France had violated its obligations under the International Covenant on Civil and Political Rights.
Canada is bound by the same treaty, which prohibits discrimination on the grounds of religion.
Canada’s approach to fundamental rights has evolved over the years through a healthy dialogue between courts and legislatures. The courts remain an essential interlocutor in that dialogue. As Kent Roach, a University of Toronto professor and one of Canada’s leading legal minds, once pointed out, an important reason for the court’s distinct role is that “an elected institution has an incentive to minimize and even trivialize the rights of the truly unpopular.”