The Debate: The Notwithstanding Clause

...the first act of a new Liberal government is going to be to strengthen the Charter, and we're going to do that by removing by Constitutional means the possibility for the federal government to use the notwithstanding clause, because quite simply, I think governance says that the courts shouldn't be overturned by politicians...

Without a doubt, this had to be the worst idea presented all evening. The Globe and CTV cover this story somewhat briefly. I can only assume that whoever wrote the stories did not consider potential problems of the idea. The Liberal Party website is now carrying the announcement on its front page. The complete story, as they tell it, can be found here.
This is the new "plan."
A new Liberal government would introduce legislation to deny Parliament the ability to invoke the Notwithstanding Clause... As a result of the amendment, Parliament would no longer be able to pass legislation that infringes upon fundamental freedoms such as freedom of expression, freedom of religion, and freedom of association, or rights such as equality rights or rights against unreasonable search and seizure, arbitrary arrest or detention. Section 33 of the Canadian Charter of Rights and Freedoms, commonly known as the Notwithstanding Clause, currently enables Parliament and provincial legislatures to override fundamental freedoms, and equality and legal rights granted to Canadians in the Charter. The Prime Minister's proposal would amend the clause to deny Parliament this power while leaving the ability of provincial legislatures to invoke the clause unaffected.
I would ask you to consider the following. Recall my post on the Whatcott case. Recall that it has already been ruled that s.14 of the Code is a reasonable restriction... to freedom of religion and expression as guaranteed by s.2 of the Canadian Charter of Rights and Freedoms. In Canada, gay rights trump religious rights. Removal of the notwithstanding clause would mean a removal of any form of protection for religious individuals (but most likely Christians) in these types of cases.
But, since I am sure that everyone will probably think of this example, let me provide another.
The Supreme Court ruled this past year that it was a violation of an individual's rights not to have access to health care services when it was needed. This ruling was widely viewed as the opening to two-tier health care (as though it didn't already exist.) Suppose the court had ruled that two-tier health care must be allowed in all provinces. Suppose they ruled that in order to protect our right to health care, for-profit services must also be allowed. Without the notwithstanding clause a government would have no way to overturn such a ruling. This would be the end of public health care as we know it.
The courts are not elected by the people. They are appointed by the Prime Minister. Without the notwithstanding clause, the courts are free to interpret the law as they choose. This would have the same effect as though they were passing the laws themselves. There is an unprecedented opportunity here for Canada todescendd into a court-based tyranny.
When creating laws, governments must consider not only the effects on the current generation; they must also consider possible problems for generations to come. Last night's announcement was one of desperation. While I doubt that the Prime Minister, should he be re-elected, would actually be able to pass a law removing the notwithstanding clause, that he even suggested it at all is proof of his myopic lack of vision.


ferrethouse said...

I've heard Liberals state repeatedly regarding same sex marriage...

"This devisive issue is settled. Don't re-open it"

Those same Liberals are now applauding Paul Martin's desperate attempt to distract Canadians from his corruption by opening the most divisive issue in Canadian politics. And here is the kicker...


So Martin has thrown out a red herring that has no chance of ever seeing the light of day since both Quebec and Alberta (and probably several other provinces) will never give up their right (according to the charter) to override the decisions of appointed judges with the democratic will of their people.

jmrSudbury said...

ferrethouse, you are not quite correct. The Liberal plan would remove only the Fed's ability to use the notwithstanding clause. The provinces would still have the ability to use it.

You are wrong on another item. During last night's debate, Jack Layton did indeed threaten to use the notwithstanding clause to keep the public system public. Which is odd since he admitted to the main stream media last November or December that part of the system is private and that won't change.

Martin had said that he would use it too. Though the clause has not been used by the feds, and it is limited in its scope since there is a 5 year time limit, it is still an important check on the courts.

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