So I was trying to keep awake watching that snoozefest of a debate When Martin suddenly blurted out he would Remove the Notwithstanding clause from the charter..
**WTF??? **
Look, I don’t believe in the dangers of judicial activism that some believe are wrecking the coutry. I think the Supreme court has been pretty reasonable, on the whole. That said, still, you can’t remove this important check in the system. If the Supreme court makes a ruling that may be actually go against the values of teh country and be harmful, the Parliment needs to be able to over rule it.
Our system doesn’t have as many checks as the U.S. system so we really shouldn’t be taking anymore away.
He must be getting desperate. Silly, tired old man, just go away and be a footnote in the history boks.
The notwithstanding clause is a blight on the Canadian constitution and ought to be removed. It puts all power in the hands of the legislature. It’s completely abhorrent to me that the government, at it’s will, could pass a law taking away my freedom of speech, and have it be legal.
I love the notwithstanding clause. It’s so Canadian. Can they use the notwithstanding clause against the notwithstanding clause?
I think Martin’s comment was one of those dumb things that politicians say during elections, I can’t take it seriously. It would never happen.
I kind of agree with both posters so far: it’s very important to have it as a check in the system, and at the same time it’s very, very good that it has been used so rarely.
I suppose we can amend the constitution to fix it. Though I’m not sure that the not withstanding clause requires the complete amending process to be changed. If it does all Mr. Martin needs to do is secure the consent of Parliament and two-thirds of the provincial legislatures. But those legislatures need to represent at least 50 per cent of the population.
Martin promised to introduce a constitutional amendment to remove the ability of the federal legislature to invoke the Notwithstanding Clause. Provincial legislatures will still be able to invoke it though. I’d love to see the Notwithstanding Clause repealed entirely, but Quebec would never go for it.
Honestly, though, if the Supreme Court ever ruled in such a way that was totally abhorrent to Canadians, a Constitutional amendment could be passed. It’s not like revoking Section 33 would leave us totally at the mercy of the Court.
Well what about if the Supreme court decided that no church can deny marriage to SS couples? Would you think it would be wrong for the P.M. to use it in that case to uphold the religious rights under the charter?
Come to think of it didn’t a certain Prime Minister promise to do just that during the SSM debate?
You see it takes time to make amendments and in that time the existing laws would be null and void it would not be pretty.
While I agree in SSM I also agree that religions should be protected under the same charter.
The Notwithstanding clause has its good uses too. It is a check between legislative and the courts. It should not be scrapped.
Parliament, or a provincial legislature, can pass legislation that the Supreme Court has ruled is in contravention of the Charter of Rights and Freedoms, as long as it’s only in contravention of certain sections, specifically 2 and 7 through 15. (For instance, the sections that give you the right to vote can’t be touched.) Such a law has a sunset limit of five years.
So far this section has been used, by my count, exactly twice.
The theory behind it is the notion of the “supremacy of Parliament” - basically, that ultimately the people should decide. It sounds like it negates certain rights, I know, but Trudeau was a clever devil; the nature of the clause is such that since a government has to come right out and say “We’re passing legislation that goes against the Charter,” it’s almost always politically impossible.
Martin’s plan is simply impossible, since one of the one times the NWC was used was by Quebec, to pass the law that forces businesses to use French on commercial signing. (They can use other languages too, but only in addition, yadda yadda yadda. Or should I say, le yadde, le yadde, le yadde.) The likelihood that Quebec would allow the Constitution to be changed in a way that would kill that law is exactly zero, and would result in a political shitstorm of gargantuan proportions.
Martin probably just torpedoed the Liberal Party in Quebec; at this point now some polls are showing they’re not even in second place there, which I never would have thought possible.
:rolleyes:
I notice that you intentionally cut out the part of my post that dealt with this.
What if the feds passed a law banning anyone from reporting on the Sponsorship scandal?
We can argue “what ifs” all we like, but the court has shown no signs of leaning towards ruling as you fear. Freedom of religion is enshrined in the Charter, after all.
But you limit Constitutional rights all the time, it’s just not actually clearly written down. U.S. courts allow all kinds of laws to circumvent the Bill of Rights; laws against pornography are clearly violations of the First Amendment as it’s written, but the courts have simply decided it’s “not protected speech.” Nothing in the Constitution says anything about some speech not beign protected, but nonetheless, that exception has been allowed. Many, many laws limiting the ownership of weapons have been passed although the Second Amendment does not appear to call for such limitations. We recently saw the Supreme Court allow the government to take people’s homes away from them to be given to rich developers, despite no allowance in the Fifth Amendment for such a thing. In each case the courts simply decided that limiting your rights under the Constitution was reasonable given the circumstances and, in some cases, some very questionable interpretations of what the Founders meant.
The genius of Section 33, the notwithstanding clause, is that it forces the issue into the open if the government really wants to get busy on our rights.
Would you read my post? Martin is proposing a constitutional amendment that would remove the federal legislature’s ability to invoke the notwithstanding clause.
Here’s the current text of Section 33:
I imagine that the amendment will change all instances of “Parliament or the legislature of a province” to simply read “the legislature of a province”.
This happens in Canada without the use of the notwithstanding clause as well. Before any of the fundamental freedoms are listed, the Charter explicitly says:
The notwithstanding clause only serves to allow the government to abridge our right unreasonably.
except that in a court case where one charter right is held upagainst another one must lose. My example is one of those cases where the possibility is that the appointed judges could argue in favour of the individual against the institution.
An amendment would solve that but not before all hell breaks loose. It’s not worth it. The Notwithstanding clause is a temporary fix.
As this is temporary (5 years then it must be renewed) and transparent (the electorate gets to see who is calling that shot) it is not likely to be used lightly.
Do you want the courts to rule the nation or the Parliment? Supremacy of governement should reside in the hands of teh people and that, my friend is through our elected officials not appointed judges.
Majority rules isn’t the end-all, be-all. Minority rights have to be protected, and that’s what the courts are for. Allowing parliament to overrule the courts is to allow the majority to ride roughshod over the minority.
Yes, I agree it can be used that way, but once again the group doing has to declare they are doing just that. In essence the government says “we acknowledge we are limiting rights here”, and in the end they must answer to that.
And by removal of the Notwithstanding clause you are not guaranteeing protection of the minority. Should the judges appointed have a more socially conservative bent, they could just as easily rule against these groups who will have no recourse. You do realize that Parliment can use the same clause in that case?
You seem to trust the Courts to do the right thing every time while fearing that Parliment will not. Only one of these two groups answers directly for their actions and I’d prefer to have the power in the hands of that group.