The Importance of the Notwithstanding Clauseby Russ Kuykendalldigitally republished with the author's permission; Russ Kuykendall©2005Toward the end of last year, political savant Russ Kuykendall published the blog entry below on his Burkean Canuck blog. With his permission, I had planned to republish it here, but various concerns elsewhere diverted my attention. Then, last nite in the great debate, when Paul Martin made his fatal surprise attack on the Clause, he not only gave the occasion for Harper to make his brilliant response, but also underscored the vital importance of Mr Kuykendall's thinking on the subject of the Notwithstanding Clause. - Politicarp Thursday, December 22, 2005
Is the notwithstanding clause the Charter's fatal flaw?
That's what Blue Tory blogger Stephen Taylor suggests, here, in his piece about upcoming Liberal attack ads (scroll down almost to the end of the post):
The Charter is a Liberal document with one serious flaw in my opinion: it is wrong that rights can be withheld by the use of the notwithstanding clause. This type of "just kidding" clause in a legal document that defines our rights remains a significant failure of Trudeau's legacy.
But is young Stephen Taylor right, er, correct?
Well, he's right about one thing: The Charter is Pierre Trudeau's most significant legacy. Taken as a whole, the Charter is his legacy's greatest "failure."
First, did Canada really need another rights charter?
Yes, that's right: another rights charter. Canada already had a federal rights charter: the Canadian Bill of Rights, 1960 -- the Diefenbaker charter. And this one included property rights (subsection 1(a)), unlike the Canadian Charter of Rights and Freedoms ("the Charter") which has none.
That strikes me as a "failure."
The "reasonable limits" clause of Section 1 of the Charter is frequently used to allow some Charter rights -- especially, Section 15 "equality rights" -- to trump other Charter rights -- especially religious freedom.
That strikes me as a "failure."
Section 3 of the Charter is now interpreted in such a way that the Court has found that criminal inmates have the right to vote while they serve their sentences.
That strikes me as a "failure."
Section 5 of the Charter means that a Parliament can continue its "session" indefinitely within the five-year maximum length of any Parliament. "Session" means the sitting from a Throne Speech until prorogation or dissolution of Parliament. Why is that important? Prior to the Charter, the number of bills a Government could introduce in Parliament was constrained by the BNA Act's requirement that Parliament have a new session every year of its sitting. That is, Governments would only introduce the number of bills they could reasonably expect to pass within one "session" -- within one year of Parliament's sitting. Now, a "session" can continue unabated within a Parliament, and a Government can introduce bills that sit on the order paper waiting for an opportune time to be passed.
That strikes me as a "failure."
Subsection 24(1) expanded the Court's power of judicial review from merely settling disputes between the federal and provincial governments, turning the Court into an unelected, largely unaccountable legislature. Unlike political parties that must face voters at least every five years, the Courts never do. Further, subsection 24(2) is interpreted by the Court such that not just Governments are required to uphold its provisions, but so are businesses, private institutions, voluntary associations, and individual citizens. The Court insists that when, say, an independent printer opens his doors for business, his business is no longer a private concern, but a public domain subject to the Charter. Therefore, a printer may not refuse to take business from, say, those whose objects he finds objectionable. Or, when a religious service club and, even, a church offers its premises for rental generally, it cannot refuse to rent to those whose "lifestyle" it does not condone.
That strikes me as a "failure."
Section 33 of the Charter -- the notwithstanding clause -- was a deal breaker at the time it was presented to the Parliament of Canada and the provincial legislatures. Without the inclusion of Section 33, the Charter would never have become constitutional law.
Why?
Because Parliamentarians, the premiers, and provincial legislators understood that the notwithstanding clause was the only effective check on an unelected, unaccountable, agenda-driven, power-hungry, or capricious Court.
Section 33 a "failure?"
Far from it. It's the Charter's saving grace.
