Canadians' Right To Self-Determination and Democratic Rights in our Charter

In this tumultuous time Canadians have a right to be apprehensive about attacks on our country's sovereignty. It is inspiring to see their fierce displays of loyalty given the threats made daily by the US president and various henchmen in his administration. In the book Canada Alone: Navigating the Post-American World, Professor Kim Richard Nossal offers a cool and discerning analysis of likely developments over the coming decade. His book was published in 2023 and is certainly prescient. As a constitutional lawyer and writer I thought I would delve in to certain of Professor Nossal's comments about the way Donald Trump and the Republican Party has undermined US democracy, and the democratic rights Americans were led to believe that they possessed. This is particularly important to research and analyze given the intention Trump has to seriously harm, perhaps fatally harm the Canadian economy through economic warfare the likes of which Canadians have never seen. While one need not predict that he will succeed outright, nonetheless his ongoing threats and actions must be taken seriously.

One way to help appreciate the differences between Canada and the USA as presently governed is to examine key Charter rights that Canadians are guaranteed. These are rights that have been undermined for three decades by the Republican Party and by various justices appointed by Republican Parties for their hard right ideologies. Currently, as we know, the US Supreme Court has nine justices. Six of these, forming a super-majority, are hard right in their ideological approaches and have made and will continue to make many rulings that undercut the democratic rights of ordinary citizens.

As Nossal points out in Chapter 3, the Republican Party even before this current term has developed a pronounced authoritarian stance and essence. Trump's far right government operates according to characteristics that meet the "authoritarian warning signs" that allow us to identify it as truly authoritarian:

1) it rejects the democratic rules of the game;

2) it denies the political legitimacy of their political opponents;

3) it tolerates or encourages violence as a political tool;

4) it indicates a willingness to curtail the civil liberties of opponents, including the media ( and I would add, including idealistic human rights advocates, students and rights-affirming professors and staff. ( See Levitsky and Ziblatt, How Democracies Die).

As we learn from Canada Alone, a process whereby any potential opponents of Trump within the party have been driven from office and from politics altogether, or have been cowed into silence. The result is that Trumpian extremists now dominate, and have from 2016 onwards. The steep decline into a highly illiberal and even anti-democratic form of politics is illustrated by numerous examples. Indeed the Trump Party as we may call it, either mirrors the illiberal democratic practices of the Orban government of Hungary or exceeds it in various ways. Currently in the USA then, we see a radical chopping away of basic rights and freedoms that were once enjoyed by citizens. In the environment that has been created the right to vote and the right to participate in the democratic process, either as voter with issues one wants to see embraced and upheld, or as a candidate, are severely truncated or removed altogether. The voter suppression practices, over recent decades, are a sight to behold.

It is clear that the preferences of white Christian nationalists will be priotized in voting rules and in practices and future laws that Trump and his potential xenophobic successors will be enacting. Nossal offers several examples. Racial equality will become a far more distant dream than is already the case.

In Canada we can look to core components of the Canadian Constitution to recognize the manner in which our legal and political culture does protect and will continue to protect those rights to vote and to participate in the electoral process. We need to be vigilant in continuing to secure those rights through our courts and seek new ways of expressing them, as our society evolves.

Section 3 of the Charter of Rights and Freedoms guarantees the right to vote and various Supreme Court of Canada rulings have breathed life in that general and broadly worded right, which is to be understood in the context of the Charter and our Constitution Acts as a whole. The purpose of section 3 is to protect the right of each citizen to play a meaningful role in the electoral process (Frank v. Canada, [2019] 1 S.C.R. 3, at paragraphs 26-27; Opitz v. Wrzesnewskyj, [2012] 3 S.C.R. 55, at paragraph 28; Figueroa v. Canada (Attorney General), [2003] 1 S.C.R. 912, at paragraphs 25-26 and 30; Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, at paragraphs 69-70). (See Justice of Canada website- Charterpedia, s. 3).

Participation in the electoral process has an intrinsic value independent of its impact upon the actual outcome of elections (Figueroa, Supreme Court, at paragraph 29. The right to vote is recognized as vital to a citizen's identity as a participant in society, and certainly affects one’s dignity and sense of self-worth (Frank, at paragraph 82); Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, at paragraph 35 (“Sauvé No. 2”).

Section 3 further guarantees a right to “effective representation” (Reference re Provincial Electoral Boundaries (Sask.), [1991] 2 S.C.R. 158 (“Saskatchewan Reference”) at page 183; Harper, at paragraph 68). This encompasses having a voice in the deliberations of government. It can include such matters as the ability to bring one’s grievances and concerns to the attention of one’s government representative (Saskatchewan Reference, at page 183). Unfair barriers cannot therefore be placed in the way of exercising this ability to communicate such matters.

Section 3 is to be interpreted as having regard to the distinct philosophical principles that have guided the development of the right to vote within our constitutional tradition (Saskatchewan Reference). It is to be interpreted in a way that will advance the values and principles embodied in a free and democratic society. Amongst other matters, this will include respect for a diversity of opinions and beliefs (Figueroa, at paragraph 27). The intentional shutting down or out of opposition political actors would infringe the democratic rights found in our Charter.

Section 3 is not subject to the constitutional override found in section 33 of the Charter (Frank, at paragraphs 25; 32; Sauvé No. 2, at paragraph 11; Opitz, at paragraph 29). Given the philosophical principles referred to above, the right to vote and to participate is to be given a large and liberal interpretation. Would-be autocrats such as Mr. Trump will be unable to override the right and the actions of future governments will indeed by subject to this right.