Wednesday, January 11, 2006

I Support the Notwithstanding Clause

Recently, in the English language debate, Prime Minister Paul Martin pledged to remove the ability of the federal government to use the notwithstanding clause of the Charter of Human Rights and Freedoms. It appears that he would not do a constitutional change, but a "ban" on its use.

[... As an aside, I thought he said during the debates, "through constitutional means" which kind of implies a constitutional change. That is, it would require assent from the House of Commons and the Senate, plus ratification from 7 provinces comprising 50% of the population - likely needing Ontario and Quebec. Quebec would never agree to that - considering they currently use it themselves. Of course, that's the provincial use, not the federal ... anyway, I'm going to skip this part and leave it for another day ...]

What is the notwithstanding clause? The short, somewhat legal definition:

The federal Parliament or a provincial legislature may declare a law or part of a law to apply temporarily "notwithstanding" countermanding sections of the Charter, thereby nullifying any federal/provincial or judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden. The rights to be overridden, however, must be either a fundamental right (e.g., section 2 freedom of speech, religion, association, etc), a legal right (e.g., liberty, search and seizure, cruel and unusual punishment, etc), or a section 15 equality right. Other rights such as section 6 mobility rights, democratic rights, and language rights are inalienable.
In short, if a law enforcing a right guaranteed by the Charter is passed or a court decision renders a decision citing a legal precedent that a law violates the Charter, a government (provincial or federal) can override that decision temporarily. The premise being, that they can amend the law so it comes into line with the Charter.

The Canadian Charter of Human Rights and Freedoms guarantees Canadians rights before and under the law - freedom of speech, religion, among others ... as well as freedom from discrimination.

On the surface, the notion that Parliament (whether federal or provincial) could override the Charter is pretty scary.

It has only been done once - that I'm aware of, and correct me if I'm wrong - to suspend the rights of English-speaking Canadians in Quebec so that Quebec can enforce French-only language laws. That one, was done by the Quebec Premier. It has only been considered for use by one Prime Minister, and that's current Liberal Prime Minister, Paul Martin - in the case of same-sex marriage, if the Supreme Court ruled that clergy in churches that did not sanction same-sex marriage must perform the ceremonies as guaranteed by the Charter.

I think, equally scary, is the notion that the Supreme Court could decide constitutional matters with no check from Parliament. Let me give you an analogy. To me, the notwithstanding clause is a fire extinguisher - when there's a fire, you need it.

If the Supreme Court rules improperly or has misinterpreted the intent of the Constitution or a law passed by Parliament - it is a legal body who must rule on the letter of the law - Parliament would have no ability to pause the decision and get the law straightened around, or no means to pause the decision to have the Court re-examine the case (I don't even know if that's possible).

I think it's completely and perfectly legitimate to debate the use of the notwithstanding clause - but to remove it completely, is something that needs to be carefully thought through. I think Parliament, arbitrarily using the clause because it simply does not like a Court ruling for ideological reasons, is wrong.

In addition, the notwithstanding clause has a built in time-limit in that it needs to be re-applied every 5 years, which I feel is a good check. Because that gives Parliament the time to:

(a) Study the decision before it takes immediate effect,
(b) re-evaluate and / or rewrite the law that was overridden, or
(c) potentially amend the constitution.

Within that 5-year period, if the government that invoked the notwithstanding clause did nothing, it would become an election issue and the government would need to go to the people in that case.

Have a look at what others think:

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Anonymous said...
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Jim (Progressive Right) said...

I deleted an anonymous comment because it contained a link and comments referring to an organization I do not want affiliated with this blog.