A Global Rise in Authoritarianism Populism
The 21st century heralded a rise of populism throughout the democratic world. Some countries became strongly “illiberal” democracies whose leaders are virtual dictators. Examples such as Vladimir Putin in Russia, Recep Erdogan in Turkey, and Viktor Orban in Hungary may come to mind.
In many cases, populists initially present themselves as “reformers” who promise to solve large-scale economic and social issues. Their supporters view them as sticking up for “real people” against corrupt domestic elites or enemies abroad. Brexiteers in the UK and Donald Trump in the US present similar arguments. Such populism is often linked with the political right. However some left-wing governments use similar methods – take Venezuela for instance, but also Mexico.
Populists are often not afraid to break rules. Rodrigo Duterte’s efforts to eliminate Philippine drug crime in through extensive executions and crackdowns is an extreme example. However, the UK government’s recent cavalier attitude to its own Brexit agreement could be another. While not all populists likely present risks to democracy in their countries, many are busy weakening political institutions in pursuit of something more.
A Definition
Yet, the term “populist” is inadequate. It does not cover the full range of this phenomenon. The term “New Fascists” could describe a few examples. Others may only be employing populist “kick the bums out” rhetoric to fire up a base. Unfortunately, its often too hard to tell the difference. And to a democratic country, finally knowing is often too late.
Therefore, to keep a broad scope, populism in this essay will have a wide definition. The public always desires a voice. If a country’s situation is perceived to be bad enough, segments of the population will get behind anyone they feel helps them. This allows for the populist – a figure who is not afraid to push the envelope and bend laws/norms to their limits – to make a play for high office. Some voters may even desire this approach. Once elected, populists operate by a philosophy of “move fast and break things”. If they are truly authoritarian, watch out!
Warnings Unheeded
People who warn about the rise of populist authoritarians are often dismissed out of hand. They often hear something along the lines of “our constitution will protect us”. However, this response is especially naïve. Authoritarians get into power first by disguising their intentions and then bending or outright breaking rules that inhibit their actions. Eventually, they often resort to simply rewriting those rules – such as with a new constitution – to their benefit.
The most extreme example is Adolf Hitler. Remember, the Nazis did not come to power in a violent take-over. While a coup was attempted, it failed and Hitler was sent to prison. Years later, the Nazi Party was voted into office by real people – lots of them – after it gained enough public support.
However, once in office, many wannabe authoritarians run into issues enacting their agenda. In many cases, an active judiciary strikes down government initiatives that infringe rights, such as those found in a constitution. Therefore, one of the first actions of authoritarians is packing courts with loyal judges who will allow them to get away with it.
However, in Canada, a populist government would not necessarily have to start packing the courts right away to overlook people’s rights. Perhaps ironically, this is because of a particular quirk buried within the Canadian constitution – the Notwithstanding Clause.
The Charter of Rights and Freedoms
The Canadian constitution is not like the American one. First, it is composed of multiple documents. They do not all date to Confederation in 1867, instead coming in dribs and drabs over the last 150 years. One of these is the Charter of Rights and Freedoms. This document provides Canadians with multiple rights such as the freedoms of expression and association; and the rights to vote, move throughout Canada, and many others. The Charter also allows for judicial review, whereby the courts can review laws to make sure they do not infringe the rights granted by the Charter. In this way, Canadian courts, like those in many other countries, may provide a check against any over-reaching government.
The Notwithstanding Clause
Yet, the Charter also provides an entirely legal way for these rights and freedoms to be taken away. Section 33 of the Charter describes an override power available to federal, provincial, and territorial governments when making laws. They may invoke this to temporarily prevent specific sections of the Charter from applying, notwithstanding what the Charter says is an inalienable right (i.e. the rights may be overridden). As this is a constitutional legal mechanism, invoking this clause serves to nullify any judicial review that could strike down such freedom-inhibiting laws.
For example, the following rights may be overridden by this Notwithstanding Clause:
- Fundamental Rights, including
- freedoms of conscience, religion, thought, belief
- freedom of expression and freedom of the press
- freedom of peaceful assembly and freedom of association
- Legal Rights, including
- Right to life, liberty, and security of person
- Freedoms from unreasonable search and seizure, arbitrary detention, cruel and unusual punishment, self-incrimination
- Right to legal counsel, various rights in criminal and penal proceedings
- Right to equal treatment before the law
This is a very wide spectrum of rights and freedoms that can be negated! To put it in perspective, the only rights that cannot be overridden are various official language rights; democratic rights such as the right to vote or that an election must be held at least every 5 years; that Canadians can enter, leave, remain in, or move within Canada; and a few others such as the Charter applying equally to men and women. However, those listed above are all legally speaking fair game for a would-be authoritarian. The ability to override the legal rights should be particularly worrisome. When authoritarians suppress their opposition they ignore these!
Why Do We Have This?
Prime Minister Pierre Elliott Trudeau made Canada’s constitution independent of the British Parliament in 1982. At the time, the government decided to include a Charter of Rights and Freedoms in the new constitution that built upon the earlier Bill of Rights introduced by Prime Minister Diefenbaker. However, to approve a new constitution, the government needed to get enough provinces to agree to this new package.
This is where Pierre Trudeau’s government encountered issues. Several provinces objected to the scope of the Charter, seeing it as a shift in power from themselves to federally appointed judges. The constitution could not be accepted piecemeal, so this objection meant passage of the entire package was stopped in its tracks. During the debate, what would become the Notwithstanding clause was proposed by an advisor of the Alberta premier Peter Lougheed. To overcome the deadlock, the federal government agreed at the 11th hour to include the clause. Consequently, they secured enough provincial backing for the new constitution. Jean Chretien, the attorney general at the time, would later say that if is was not for the Notwithstanding clause, Canada would not have gotten a new constitution.
In the United States, different branches of the US government check each other, and courts may nullify legislation. In contrast, in Canada’s British-derived system of government, Parliament is supreme. The Notwithstanding clause is one way to protect this system. Jean Chretien once said it could be invoked to stop courts from ruling in favour of controversial items. In theory, the clause would prevent courts from legalizing hate speech based on an interpretation of freedom of expression.
Limitations of the Notwithstanding Clause
A law that invokes use of the override power can only do so for a maximum length of 5 years. However, after that, the government can continue to invoke the clause repeatedly for additional periods of 5 years.
Legal precedent (historical example) may provide a further limitation of the clause’s use. While the federal, provincial, and territorial governments may use it, the federal government has never done so. In fact, in the 2006 election, Prime Minister Paul Martin promised an amendment that would disallow the federal government from ever doing so (He lost the election, and this never happened). However, various provinces have used or threatened to use the clause several times. Between 1982-1985, the Quebec government invoked the clause on every single piece of legislation they passed! On the provincial level at least, the genie seems to be out of the bottle.
The override power cannot be used on the democratic rights detailed in the Charter of Rights and Freedoms. These include the right to vote, that an election must occur once every 5 years, and that Parliament must sit at least once every year. The 5-year limit to use of the notwithstanding clause is directly related back to this. Presumably, if a government’s use of the override power is so egregious and unpopular, the public can vote them out of office at the next election.
This last point probably touches on the core reason why the notwithstanding clause may not be used. Politicians consider it a difficult-to-use nuclear option that goes against norms and conventions. They care about their electability and so do not want to be associated with the optics of infringing on the public’s rights and freedoms. However, what happens when the public has an appetite for someone who will break norms and conventions?
Canadian Populism
Canadians tend to believe that Canada is safe from the populist movements seen in the US and Europe. But it is foolish to be complacent. It could happen here.
Elements of populism were present in the Toronto mayoral campaign of Rob Ford (2010); and the Conservative leadership campaigns of Kevin O’Leary (2017), Kellie Leitch (2017), Erin O’Toole (2020) and others; Maxime Bernier’s People’s Party, and the People’s Alliance party in New Brunswick. There are certainly others, including Doug Ford in Ontario. Rhetoric from the Liberals and NDP can also have a populist rich vs. poor flavour. The NDP‘s socialist roots make it well-paced to make those arguments.
The premiership of Doug Ford in Ontario is an excellent sample case. The mayorship of his brother Rob had a very anti-elite focus. Doug ran on the same message himself to become premier, demonstrating that under the right circumstances (like an unpopular opposition) populism is a viable election strategy in Canada. Yet, one of his actions as premier is especially interesting. Doug Ford threatened to use the notwithstanding clause to change the political map of Toronto. Ultimately, he did not end up needing to invoke it. However, Ford likely would have done so.
A Rising Tide
According to one paper, 34 % of Canadians maintain a populist outlook. There is evidence that this could be growing among certain segments of the populations and in certain regions of the country. A study found that 5 hotbeds were in southern Ontario and included Barrie, Hamilton, London, Oshawa, and Windsor. Prairie cities also registered high scores. Political scientists believe that populist attitudes rise during times of economic and social discord. No surprise then these locations faced significant job losses from the financial crisis, outsourced manufacturing, and a collapse in global oil prices.
The world continues to be a precarious place. COVID-19 and large-scale economic issues affect many countries. Many nations also face their own unique pressures. In Canada, housing continues to become increasing unaffordable for young middle-class families, especially in Ontario and BC. In Ireland, a similar issue cost the government support in the last election. Regardless of the actual cause, if it worsens enough, Canadians will likely look for a new face promising a new solution. If they elect a norm-breaking newcomer with a radical agenda, expect more uses of the notwithstanding clause in the future. It is a tempting tool for a populist leader to push to its limit. Hopefully, they do not go beyond it.
Subscribe to my mailing list for updates on new content. If you know someone who would appreciate this post, feel free to share a link.