# Martin to end Notwithstanding claus?!? (Warning contains Canadian politics) **URL:** \ **Category:** Great Debates\ **Created:** [January 10, 2006, 1:38pm UTC](https://boards.straightdope.com/t/martin-to-end-notwithstanding-claus-warning-contains-canadian-politics/339302 "2006-01-10T13:38:47Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Grey](https://avatars.discourse-cdn.com/v4/letter/g/b782af/32.png) [@Grey](https://boards.straightdope.com/u/Grey)\ **Post date:** [January 11, 2006, 1:23am UTC](https://boards.straightdope.com/t/martin-to-end-notwithstanding-claus-warning-contains-canadian-politics/339302/21 "2006-01-11T01:23:51Z")
> [@Rysto](#): > > Would you read my post? Martin is proposing a constitutional amendment that would remove the federal legislature’s ability to invoke the notwithstanding clause. > > 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”. Oh well then, since he only wants to amend it with respect to federal powers he wont need to follow the amending formula. Oh wait he does. He then has to get a minority government to pass the legislation, convince 50% of the population residing in 2/3 of the provinces to make their respective legislatures approve of the motion and voila! Piece of political cake. ---
**Author:** ![Rysto](https://avatars.discourse-cdn.com/v4/letter/r/ecccb3/32.png) [@Rysto](https://boards.straightdope.com/u/Rysto)\ **Post date:** [January 11, 2006, 1:28am UTC](https://boards.straightdope.com/t/martin-to-end-notwithstanding-claus-warning-contains-canadian-politics/339302/22 "2006-01-11T01:28:01Z")
The provincial legislatures certainly won’t be objecting to a narrowing of federal powers. Passing it in Parliament is obviously more difficult, but you can make the same objection to any plank in any parties’ platform. ---
**Author:** ![Grey](https://avatars.discourse-cdn.com/v4/letter/g/b782af/32.png) [@Grey](https://boards.straightdope.com/u/Grey)\ **Post date:** [January 11, 2006, 1:41am UTC](https://boards.straightdope.com/t/martin-to-end-notwithstanding-claus-warning-contains-canadian-politics/339302/23 "2006-01-11T01:41:43Z")
> [@Rysto](#): > > The provincial legislatures certainly won’t be objecting to a narrowing of federal powers. Passing it in Parliament is obviously more difficult, but you can make the same objection to any plank in any parties’ platform. Well of course, besides what Quebec government wouldn’t want to be linked to a Liberal constitutional ammendment? Especially one that doesn’t address Quebec in the federation. Federal legislation that does not require provincial co-operation, has an actual chance of passing. Grand policy proposals that have as much chance of happening as Jean Chretien and Conrad Black slow dancing are useless. ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [January 11, 2006, 2:22am UTC](https://boards.straightdope.com/t/martin-to-end-notwithstanding-claus-warning-contains-canadian-politics/339302/24 "2006-01-11T02:22:48Z")
I wouldn’t have any problem with the clause being tossed. It is there to permit the elected majority to take away rights and freedoms when it is not reasonable to do so. In other words, it opens the door to a tyrany of the majority. In practice, I have greater faith in the Supreme Court of Canada to make well thought out decisions concerning our rights and freedoms than our elected representatitves. My only concern is that should the judiciary become politicized to the degree that the judges of the Supreme Court of Canada start basing their decisions on political positions, then their having the final say might be problematic, however, even then the problem would be minimized, for it is very easy for Parliament to give persons rights regardless of what the courts might say. In short, taking away the notwithstanding clause would make it more difficult for the elected majority to take away rights, but it would not make it more difficult to grant rights to all. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [January 11, 2006, 2:40am UTC](https://boards.straightdope.com/t/martin-to-end-notwithstanding-claus-warning-contains-canadian-politics/339302/25 "2006-01-11T02:40:14Z")
For those not quickly familiar with the Canadian Constitution, here are the Sections that the Notwithstanding Clause must be invoked to supersede: > [@](#): > > Section 2. Everyone has the following fundamental freedoms: > > ``` > (a) freedom of conscience and religion > > (b) freedom of thought, belief, opinion and expression, including freedom of the press and other means of communication. > > (c) freedom of peaceful assembly; and > > (d) freedom of association. > > ``` > > * * * > > Section 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. > > Section 8. Everyone has the right to be secure against unreasonable search or seizure. > > Section 9. Everyone has the right not to be arbitrarily detained or imprisoned. > > Section 10. Everyone has the right on arrest or detention > > ``` > (a) to be infomed promptly of the reason therefor; > > (b) to retain and instruct counsel without delay and to be infomed of that right; and > > (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. > > ``` > > Section 11. Any person charged with an offence has the right > > ``` > (a) to be infomed without unreasonable delay of the specific offence; > > (b) to be tried within a reasonable time; > > (c) not to be compelled to be a witness in a proceedings against that person in respect of the offence; > > (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; > > (e) not to be denied reasonable bail without cause; > > (f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment; > > (g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or International law or was criminal according to the general principles of law recognized by the community of nations; > > (h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and > > (i) if found guilty of the offence and if punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. > > ``` > > Section 12. Everyone has the right not to be subjected to any cruel or unusual treatment or punishment. > > Section 13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence. > > Section 14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter. > > Section 15. (1) Every individual is equal before the and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. > > (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. I presume that Martin’s promise says that Parliament would no longer have the power to supersede any of these guarantees, although the provincial legislatures still would as regards their province. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [January 11, 2006, 3:27am UTC](https://boards.straightdope.com/t/martin-to-end-notwithstanding-claus-warning-contains-canadian-politics/339302/26 "2006-01-11T03:27:02Z")
The fact the Martin was very specific that only _Federal_ invocation of the NWC would be stopped got me wondering: when did the Feds _ever_ invoke the NWC? Offhand, I can’t think of a single case, but I admit I’m not very observant. Of course, I’m somewhat biased by having my provincial government overuse the damn thing every chance they get. ---
**Author:** ![Rysto](https://avatars.discourse-cdn.com/v4/letter/r/ecccb3/32.png) [@Rysto](https://boards.straightdope.com/u/Rysto)\ **Post date:** [January 11, 2006, 3:46am UTC](https://boards.straightdope.com/t/martin-to-end-notwithstanding-claus-warning-contains-canadian-politics/339302/27 "2006-01-11T03:46:32Z")
The feds have never invoked it. ---
**Author:** ![kingpengvin](https://avatars.discourse-cdn.com/v4/letter/k/9dc877/32.png) [@kingpengvin](https://boards.straightdope.com/u/kingpengvin)\ **Post date:** [January 11, 2006, 4:35am UTC](https://boards.straightdope.com/t/martin-to-end-notwithstanding-claus-warning-contains-canadian-politics/339302/28 "2006-01-11T04:35:58Z")
> [@Muffin](#): > > I wouldn’t have any problem with the clause being tossed. It is there to permit the elected majority to take away rights and freedoms when it is not reasonable to do so. In other words, it opens the door to a tyrany of the majority. > > In practice, I have greater faith in the Supreme Court of Canada to make well thought out decisions concerning our rights and freedoms than our elected representatitves. Seriously, where does this unquestioning faith in our Suprteme court come from? In my OP I have staed that so far they have been reasonable but I still would never consider giving them unchecked power. Parliament has not used this to hurt us yet, so why can’t they be given the same benifit of the doubt? As stated the Notwithstanding clause has \*\*never \*\* been used by the Feds and still they can’t be trusted. Should they not be armed incase some stupid or oddball ruling comes down from the judiciary? ---
**Author:** ![Sunspace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sunspace/32/1250_2.png) [@Sunspace](https://boards.straightdope.com/u/Sunspace)\ **Post date:** [January 11, 2006, 5:32am UTC](https://boards.straightdope.com/t/martin-to-end-notwithstanding-claus-warning-contains-canadian-politics/339302/29 "2006-01-11T05:32:21Z")
> [@Rysto](#): > > The feds have never invoked it. Weren’t the Conservatives threatening to use it, if elected, to set aside the right of same-sex couples to get married? ---
**Author:** ![RickJay](https://avatars.discourse-cdn.com/v4/letter/r/bb73d2/32.png) [@RickJay](https://boards.straightdope.com/u/RickJay)\ **Post date:** [January 11, 2006, 6:15am UTC](https://boards.straightdope.com/t/martin-to-end-notwithstanding-claus-warning-contains-canadian-politics/339302/30 "2006-01-11T06:15:53Z")
> [@Sunspace](#): > > Weren’t the Conservatives threatening to use it, if elected, to set aside the right of same-sex couples to get married? No. As I recall, the promise was to use it to ensure churches could not be forced to perform same sex marriages - in effect, to use it if the Supreme Court picked one right to trump another. Whether this was in fact ever even vaguely likely to happen, of course, is another matter. ---
**Author:** ![Uzi](https://avatars.discourse-cdn.com/v4/letter/u/91b2a8/32.png) [@Uzi](https://boards.straightdope.com/u/Uzi)\ **Post date:** [January 11, 2006, 8:14am UTC](https://boards.straightdope.com/t/martin-to-end-notwithstanding-claus-warning-contains-canadian-politics/339302/31 "2006-01-11T08:14:47Z")
> [@Muffin](#): > > In practice, I have greater faith in the Supreme Court of Canada to make well thought out decisions concerning our rights and freedoms than our elected representatitves. You do know that it is an elected representative (only one, btw) who determines who is on the Supreme Court, right? How do you know that the choices he makes in appointing a member to the court are well thought out decisions? It certainly bothers me that the person I elect to represent me has no say in who these people are and I like the fact that they have a tool to stop potentially goofy decisions on the law. Just because they haven’t needed it before doesn’t mean they won’t in the future. ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [January 11, 2006, 3:16pm UTC](https://boards.straightdope.com/t/martin-to-end-notwithstanding-claus-warning-contains-canadian-politics/339302/32 "2006-01-11T15:16:59Z")
> [@kingpengvin](#): > > Seriously, where does this unquestioning faith in our Suprteme court come from? Who said anything about unquestioning faith? Having greater faith in one over the other does not mean having unquestioned faith. Think lesser of two evils, or better of two goods, not unquestioned faith in either. As to why I have greater faith in the SCC than the politicians, it is because the judiciary is not as reactionary. It does not have to pander for votes. I am concerned that politicians have a tendency to either avoid making laws that protect somewhat unpopular minorities, or overreact with their legislation when faced by a crisis. By upholding Charter rights and freedoms, the courts help moderate this political behaviour. Yes, I am concerned that the courts must find a balance between judicial activism and judicial restraint, and yes, I realize that these should not be confused with liberalism and conservatism, for at any given time, the court might change political direction without changing its degree of activism or restraint. When I look at Charter decisions made by the Supreme Court of Canada, I am impressed by the depth of thought put into them. I do not agree with some of the decisions, and I do not agree with the general directions maintained by some of the judges, but that being said, I have confidence that they will make very carefully reasoned decisions that attempt to uphold the Charter. I cannot say the politicians as a whole put the same degree of thought into their legislation. I am concerned that some politicians do not have the intellectual depth to thoroughly think through the effect of their legislation, some politicians are more concerned about political positioning than the effect of their legislation, some politicians are more concerned about capturing the reactionary vote in the polls than the effect of their legislation, and some politicians are just plain bigots who are more than happy to unreasonably withold or take away Charter rights and freedoms from certain classes. What it comes down to is that politicians are good at getting elected, whereas Supreme Court of Canada judges are good at making reasoned decisions. ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [January 11, 2006, 4:00pm UTC](https://boards.straightdope.com/t/martin-to-end-notwithstanding-claus-warning-contains-canadian-politics/339302/33 "2006-01-11T16:00:54Z")
> [@Uzi](#): > > You do know that it is an elected representative (only one, btw) who determines who is on the Supreme Court, right? How do you know that the choices he makes in appointing a member to the court are well thought out decisions? > It certainly bothers me that the person I elect to represent me has no say in who these people are and I like the fact that they have a tool to stop potentially goofy decisions on the law. Just because they haven’t needed it before doesn’t mean they won’t in the future. The process is not nearly as simple as you suggest. You might wish to read [IMPROVING THE SUPREME COURT OF CANADA APPOINTMENTS PROCESS: REPORT OF THE HOUSE OF COMMONS STANDING COMMITTEE ON JUSTICE, HUMAN RIGHTS, PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, MAY 2004](http://www.parl.gc.ca/committee/CommitteePublication.aspx?SourceId=84157) I would like a little more transparancy, but not at the expense of politicizing the appointment process, for to do so would result in politicized appointments. ---
**Author:** ![Sunspace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sunspace/32/1250_2.png) [@Sunspace](https://boards.straightdope.com/u/Sunspace)\ **Post date:** [January 11, 2006, 4:22pm UTC](https://boards.straightdope.com/t/martin-to-end-notwithstanding-claus-warning-contains-canadian-politics/339302/34 "2006-01-11T16:22:52Z")
> [@RickJay](#): > > No. As I recall, the promise was to use it to ensure churches could not be forced to perform same sex marriages - in effect, to use it if the Supreme Court picked one right to trump another. > > Whether this was in fact ever even vaguely likely to happen, of course, is another matter. But the Civil Marriage Act specifically states that churches may choose whom they marry: > [@FAQ about the CMA](#): > > No church, synagogue, mosque or temple can be forced to perform a marriage that goes against their religious beliefs. > [@Bill C-38](#): > > Section 3:[It is recognized that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs.](http://www.parl.gc.ca/38/1/parlbus/chambus/house/bills/government/C-38/C-38_3/C-38-4E.html) ---
**Author:** ![Rysto](https://avatars.discourse-cdn.com/v4/letter/r/ecccb3/32.png) [@Rysto](https://boards.straightdope.com/u/Rysto)\ **Post date:** [January 11, 2006, 4:39pm UTC](https://boards.straightdope.com/t/martin-to-end-notwithstanding-claus-warning-contains-canadian-politics/339302/35 "2006-01-11T16:39:28Z")
Sunspace, the issue was the some people were concerned that the Supreme Court would end up finding that to be unconstitutional, and order churches to marry everyone. ---
**Author:** ![matt\_mcl](https://avatars.discourse-cdn.com/v4/letter/m/7ab992/32.png) [@matt\_mcl](https://boards.straightdope.com/u/matt_mcl)\ **Post date:** [January 11, 2006, 4:39pm UTC](https://boards.straightdope.com/t/martin-to-end-notwithstanding-claus-warning-contains-canadian-politics/339302/36 "2006-01-11T16:39:32Z")
> [@Sunspace](#): > > Weren’t the Conservatives threatening to use it, if elected, to set aside the right of same-sex couples to get married? Actually, no. They were promising to reopen the debate, and most would vote against same-sex marriage; in other words, they want to take it away. But they say they can do this without using the Notwithstanding Clause, even though nine provincial courts have already said that SSM is required by the Charter. Most constitutional scholars say the Tories are nuts and there’s no way to do this without using the NC. My guess? They’d try it; if they could get it passed (dubious anyway), a Supreme Court case would be hastily put together; it would be clarified that yes, those provincial superior courts _really meant it_ when they said it was Charter protected; and everything would be thrown into a state of severe muddlement while it was all figured out. ---
**Author:** ![Leaffan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/leaffan/32/299_2.png) [@Leaffan](https://boards.straightdope.com/u/Leaffan)\ **Post date:** [January 11, 2006, 4:45pm UTC](https://boards.straightdope.com/t/martin-to-end-notwithstanding-claus-warning-contains-canadian-politics/339302/37 "2006-01-11T16:45:20Z")
> [@Sunspace](#): > > Weren’t the Conservatives threatening to use it, if elected, to set aside the right of same-sex couples to get married? The Conservatives weren’t threatening anything. Stephen Harper’s position on this was that would use the notwithstanding clause to overrule the supreme court’s decision on gay marriage and then put it to a free vote in the house of commons. In other words, let the elected officials decide on the law, not the appointed Liberal cronies. It would not have made a difference in the outcome. Most Canadians, myself included, have no issue with gay marriage. I mean, what possible difference could it possibly make to me as a heterosexual married male? But the point is, that elected members are the ones who should be making laws, and the courts should be interpreting them; not the other way around. Why the hell do we elect members of parliament if not to govern and change laws to reflect society? ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [January 11, 2006, 4:56pm UTC](https://boards.straightdope.com/t/martin-to-end-notwithstanding-claus-warning-contains-canadian-politics/339302/38 "2006-01-11T16:56:08Z")
So long as gays can marry without having to be married by church officials, forcing churces to marry gays would violate the Charter freedom of religion. Had the government tried to ram gay marriage down churches’ throats, I expect that the courts would have stopped it. On a related matter, it was the gradual progress of gay rights through the courts that eventually resulted in gay marriage. Yes, there was a vote in Parliament, but this only came after decisions of courts of appeal in more than one province in favour of gay marriage as being protected under the Charter that drove the issue. In short, the courts protected the Charter rights of gays without impinging on religious rights. The government was complacent in letting gays go without fundamental human rights as protected by the Charter until the matter was pushed through the courts. As far as the conservative leader Harper goes, he has set out that if his party comes into power, [he will re-open the issue of gay marriage by way of a free vote in Parliament, but he will not invoke the notwithstanding clause](http://news.yahoo.com/s/afp/20051217/wl_canada_afp/canadavotedebategay_051217213941). That means that if his party wins the election, and is successful in banning gay marriage, then it would be up to the courts to continue to uphold the Charter right to equality. I think that this is an excellent example of how the judiciary protects the Charter rights and freedoms of minorities against bigoted politicians. ---
**Author:** ![Rysto](https://avatars.discourse-cdn.com/v4/letter/r/ecccb3/32.png) [@Rysto](https://boards.straightdope.com/u/Rysto)\ **Post date:** [January 11, 2006, 5:17pm UTC](https://boards.straightdope.com/t/martin-to-end-notwithstanding-claus-warning-contains-canadian-politics/339302/39 "2006-01-11T17:17:48Z")
> [@Leaffan](#): > > Why the hell do we elect members of parliament if not to govern and change laws to reflect society? Why the hell do we have a Charter and Rights and Freedoms if not to protect peoples’ rights? > [@matt\_mcl](#): > > My guess? They’d try it; if they could get it passed (dubious anyway), a Supreme Court case would be hastily put together; it would be clarified that yes, those provincial superior courts really meant it when they said it was Charter protected; and everything would be thrown into a state of severe muddlement while it was all figured out. What I’m afraid of is that if this were to happen, Harper would say that the courts have overruled Parliament’s authority, and while he really didn’t want to do it, he’ll have to invoke the notwithstanding clause. I’m well aware that he’s promised not to but there’s just no way that the Supreme Court is going to rule any other way, so I don’t understand why he’d even bother with a law he knows is going to be ruled to be unconstitutional. Maybe he’s just hoping to score some political points by tilting at windmills, but I don’t think that many people will be impressed by him wasting everybody’s time. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [January 11, 2006, 5:21pm UTC](https://boards.straightdope.com/t/martin-to-end-notwithstanding-claus-warning-contains-canadian-politics/339302/40 "2006-01-11T17:21:33Z")
> [@Rysto](#): > > some people were concerned that the Supreme Court would end up finding that to be unconstitutional, and order churches to marry everyone. Does that mean that in Canada the civil, legal institution and aspects of marriage aren’t distinct from the religous ones as they are in the US? You can’t be married in law without being married in a church and vice versa? Or are “some people” simply mistaken about that (as they are in the US)? [Previous page](https://boards.straightdope.com/t/martin-to-end-notwithstanding-claus-warning-contains-canadian-politics/339302.md?page=1) [Next page](https://boards.straightdope.com/t/martin-to-end-notwithstanding-claus-warning-contains-canadian-politics/339302.md?page=3)