The Notwithstanding Clause;
33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or section 7 to 15 of this Charter.
… is not an extra-Constutional legal device designed to “thwart” the Canadian Charter Of Rights And Freedoms.
It is a section contained WITHIN the Canadian Charter Of Rights And Freedoms.
Read it for yourself, and demand our politicians protect the right to invoke the “notwithstanding clause” in our treasured Charter with all the vigour that they do others. As Paul Martin is quick to remind us – “I don’t believe the prime minister of Canada can cherry-pick charter rights.”
Hold him to his word.
This one is too easy, ask Paulie if he supports Quebec’s right to continually involke the Notwithstanding clause?
“Quebec resorted to the notwithstanding clause after the Supreme Court of Canada, in the Chaussure Brown�s and Devine cases on the language of commercial signs, ruled that an outright prohibition of the use of languages other than French was an unreasonable limitation on the freedom of expression guaranteed by the Charter. The Quebec government thereupon introduced an amendment to the language law that would maintain unilingual French signs outside premises while permitting the use of other languages inside. To ensure that the amendment would not become the object of another legal challenge, the amending legislation invoked the legislative override authority of section 33 and the similar provision in the Quebec Charter of Human Rights and Freedoms.”
Refer to http://www.parl.gc.ca/information/library/PRBpubs/bp194-e.htm
I hope Paulie chokes on his choice of attack vector on the CPC.
And anther thing from that document:
“Experience so far has shown at least three situations where section 33 was used in a way not foreseen by those participating in the 1981 First Ministers� Conference or by commentators: the omnibus, routine invocation of section 33 by the Quebec National Assembly between 1982 and 1985; the preventive use of section 33 by Saskatchewan in relation to back-to-work legislation;(26) and the adoption of Bill 178 by the Quebec National Assembly following the 15 December 1988 Supreme Court of Canada decisions in Chaussure Brown�s and in Devine. In this last case it might be argued that a government claiming to be in agreement with a court ruling passed a legislative measure said to be consistent with the spirit of that court ruling but, for greater certainty and to avoid future litigation, included a section 33 override clause.”
Funny, only 2 provinces have used Section 33… both extremly Socialist and both used to stomp on people’s rights! Too funny… Paulie, I dare you to keep bringing it up… we can bury you under facts. I don’t expect the media to work with the facts, but we can find them. 😉
From le blog de Polyscopique:
“The problem is that though, according to a 2002 poll from the CRIC, 88% of Canadians think that the Charter is a “good thing for Canada”, 52% of Canadians are, according to a 2002 poll by L�ger Marketing, unable to name a single right which is protected by the Charter.
This is even more astounding considering all the easy answers that could have been given, for example freedom of speech, freedom of religion, the right to life or equality rights. In other words, yes we think that the Charter is a wonderful thing, but please don’t ask us what’s actually in there.
I think this is a dangerous situation. When people express veneration for a document of which they know little or nothing, they are left vulnerable to politicians, judges, bureaucrats or activists who may want to manipulate this sentiment to their advantage and try to fool people into believing something is in the Charter when it isn’t, or into believing something isn’t in the Charter when it is.”
On a more general topic of the Charter, I find it amazing, in comparison to the US consitution.
Just think about the men that created created the US Consitution and their personal experiences of the time. They backed up their values with their own blood. It is indeed one of the great achievements of Western civilization.
The Charter of Canucksitan is a document created by soft, easy life, pet-communist loving, bureaucratic, wishy washy, multi-culti worshipping, pencil necks. It contains nothing in it to make anyone proud. Do you suppose if you were to stop anyone on the street they could quote some of it to you? Absolutely not.
Now I know what your thinking. An American could not either. But they could quote from the Declaration of Independence. Where do you suppose the phrase “life, liberty, and the pursuit of happiness” comes from? It’s true, most people could note quote the first ammendment, but can certainly rant about “the separation of church and state” like a good commie-loving collectivist.
In order to understand Trudeau’s Charter, and his view of s. 33, we need only turn to his own historical words:
“I must be honest and say that I don�t fear the notwithstanding clause very much…it is a way that the legislatures, federal and provincial, have of ensuring that the last word is held by the elected representatives of the people rather than by the courts.”
Jean Chr�tien, then Minister of Justice, said:
“The purpose of an override clause is to provide the flexibility that is required to ensure that legislatures rather than judges have the final say on important matters of public policy.”
In short, the clause was intended to prevent judicial activism – which abuses have been latterly magnified by the unilateral appointment of Liberals to the SCC and the superior courts in all provinces.
The Tories need to communicate more clearly on this point. It is not about ‘Charter Rights’. It is about democracy and the will of the people, stupid.
Anonalogue,
Continue with your brilliant posting but may I sugest the real vulnerability of the public comes from a MSM all singing from the same (clueless and intellectually dishonest)hymn book.
The coverage in the Toronto Star and the Globe & Mail is so anti-American and left wing biased that I stopped reading the Star 20 years ago and the Globe two months ago.
I did loook at the front pages of both on December 16th to see how they were covering the wonderful news from Iraq.
Quelle surprise. NOT ONE WORD.
Kate,
You are correct that it is a clause within the charter. We wouldnt have a charter if it wasnt there, historicaly and practically speaking.
However it is a right of GOVERNMENTS versus the courts. All of the others are rights of people versus governments. To the extent that parliaments represent the people it is a People’s right (Big P meaning collective)
Now, given the nature of our court appointments, appointed by a democratically elected executive with the approval of a democratically elected legislature you can hardly argue against the notwithstanding clause, they are sourced from the exact same source of legitimacy.
The question to ask Paul Martin, Is removing the notwithstanding clause a constitutional priority for you, above all others?
Harper gets to defend the constitution as it is, all of it. Martin is the one proposing change and carve outs….Does he really want to spark another constitutional debate?
As others have said, does he condemn the use of the constitutional provision of the notwithstanding clause by ANY government. And if so what is he going to do about it?
But finally, why debate on the Liberal’s ground. It is a red herring, the constitution is what it is until it is changed.
Easy answer, the notwithstanding clause is a part of the constitution but there are no circumstances that I currently see under which it would be necessary. The constitution are the agreed rules by which we govern ourselves, calling parts of it illegitimate is something to be expected of the seperatists.
Mr Martin can choose to accept our constitution as it is or tell us if it is one of his major platforms to change the constitution. I have too much respect for the constitution and the office of prime minister to make plesges about the legitimacy of clearly written constitutional provisions. Until the constitution is changed these provisions exist.
I demand this document be rewritten. I do not recognize the “Supremacy of God” and THAT IS MY RIGHT.
And according to the Leader of the Free World PMPM: You Cannot “Cherrypick” From The Charter.
I’m going to court on this one and I will win.
Let’s not forget that the first Liberal to actually suggest using s. 33 was none other than Trudeau. In 1981, he wrote a letter to Cardinal Gerald Emmett Carter stating that he would use s. 33 if the abortion laws were ever ruled unconstitutional.
A really good read on the subject of s. 33 as a whole can be found in an article by Christopher Manfredi.
http://www.irpp.org/po/archive/oct03/manfredi.pdf
Manfredi points out that constitutional scholars believe that s. 33 is a crucial element of the Charter promoting proper dialogue between the legislature and courts. Without its actual use, this dialogue is contrived at best.
Nat,
The dialouge between the courts and the legislature is contrived NOW! At least as between a Liberal legislature and the Courts.
I do give the courts credit for saying in the SSM decision that given the SILENCE of the legislature they assumed assent…in other words they are EXPECTING a dialouge, so that even silence has meaning. The government in the meantime hopes silence means nothing other than silence, at least that is the political cover they use.
The legislature must speak and the government needs to have positions on these issues. Default legislation by courts is not what we are supposed to have.
There’s something else to consider in this current Red Herring tactic of Martin to denigrate Harper.
First, as many have perfectly pointed out above, the NotWithStanding Clause is an integral part of a Constitution. Its purpose it to prevent judicial activism and to retain power in the hands of the electorate. Therefore, it is a vital clause.
The CPC ought to ‘call’ Martin on his current rejection of the Charter, and his refusal to protect a basic clause that is explicitly written to protect parliament.
There is another aspect to this problem, and that is the current merger of the meanings of ‘rights’ and ‘values’. Martin and the Liberals, and the NDP, have done this. It’s a serious error.
Some things are Rights. They are basic; and few. The US Constitution says it best: The Right to Life, Liberty and the Pursuit of Happiness.
That’s it. Nothing else.
Note: The PURSUIT, not the achievement of happiness.
But, the Liberals and socialists have merged these few basic human rights with SOCIAL VALUES. So, they are asserting that a VALUE is a Human Right.
So, if I have a social value of SSM, then, it becomes a RIGHT – and I must be permitted to have that behaviour as my right.
But, marriage is not a basic human right. You can live your life without marriage – but, you can’t live your life without ‘being alive’, or without freedom. And, there are different types of marriages. The people in a society must decide, for themselves, the type of marrige that they value. It’s a social decision, a social value. Not a right.
Let’s say my group values women within a certain definition: worth half of a man, must not go to school, must stay at home, must not go out to work. Now, these are values..and what this merger of Right with Value means..is that to NOT allow such behaviour, is an act against the RIGHTS of this group, to live this way. Our laws say that children must go to school until the age of 16, but, this group could refuse to send girls to school, and claim it is their Human Right to do so.
I find this ignorance about the definition of human rights, and the assumption that it means human values
Sorry- didn’t finish my post.
My concern was the ignorance about the definition of human rights, and the assumption that a ‘right’ is ‘whatever that person values’ – a very dangerous concept. I hear people all the time, assuming that certain behaviour is a ‘human right’, when it is merely, a particular individual’s or a particular group’s lifestyle choice. Nothing to do with human rights.
But, merging the definitions gets us into relativism, where every value becomes a right, and all is relative.
I would have thought the ‘right’ to timely and accessible healthcare for everyone trumped the ‘right’ to marry whatever your significant other happens to be, given the wide open definition now in play. So, why did the Quebec SC put aside its position on private healthcare in that province? Were they asked to, given that it would be an election year? Would Martin invoke the n/w/standing clause to overturn the Court’s decision? I think not. Fearmongering has worked well in the past, and most people now believe to use the clause is an abuse. Lucky for Quebec, they didn’t sign the constitution so are not bound by it.
ET, further to yours, we need only follow the red, bouncing ball to see how the play unfolds:
Alan Rock speaks on Toronto television while standing next to a float at a Sex Parade (read Gay Pride, if you must). “This is all about social justice.” he beams – oblivious to or unwilling to admit that for most Canadians, it is about nothing of the sort. Pride and Sex are not synonymous.
Thusly, secular ideals become Liberal values, which transmute into Canadian Values, which then become Canadian Rights and, finally, Basic Human Rights that Must be Protected by the Liberal Party of Canada.
Martin said on Dec. 17 that “…we look to the prime minister of the country to protect the charter…”
As usual he has it wrong. It is the responsibility of the courts to “protect” the Charter by ruling on Charter-based cases brought before them. It is the responsibility of Parliament, at the request of the the cabinet, led by the prime minister, to use the Notwithstanding Clause.
Mark
Ottawa
Liberals demonize this constitutional fail safe mechanism because it “Thwarts” the bulldozing of the single party state into the single government state. Our confederation has 11 governments with different jurisdiction and separate but equal powers for a reason….to stop the concentration of executive power in one office. Without charter section 33 Ottawa could legislate uniform laws which may damage a minority in a single province or region. This would “thwart” the tyranny of the majority ( most populous provinces) from monopolizing the policy agenda and forcing their will on people/regions who have vastly different agendas or needs.
The right to dissent if a law is damaging to a local government’s jurisdiction or its constituents is a righteous civil freedom….of course militant Liberal statists would curse it.
Quebec used it over 300 times within the first 5 years of the Charter….and rightfully so as they were defending constitutional jurisdiction from Ottawa’s power raids.
This is Alberta’s gift of liberty to any government or individual who does not want to experience the bureaucratic tyranny of the central Canadian political cabal. It breaks the complete control of the political agenda of the majority government and it wisely provides a 5 years sunset clause for either re opting out or opting in if the contentious issue is resolved.
If anything it should be used more often…it would have put the cap on the NEP, gun registry, Kyoto and a multitude of ruinous social engineering legislating.
Thank you Peter!
The notwithstanding clause… is not an extra-Constutional legal device designed to “thwart” the Canadian Charter Of Rights And Freedoms. It is a section contained WITHIN the Canadian Charter Of Rights And Freedoms.
Exactly. How I wish that Harper would trounce Liar Paul on this subject! I mean, just trash the guy.
Mr Lougheed and Mr Lyon deserve the most credit for championing its inclusion and Mr Davis deserves credit for recognizing the need for compromise. It was the threat of the removal of his and Hatfield’s support that drove the final compromises.
hmmm 4 Conservative premiers made the constitution real and practical.
You never hear that do you..
Stephen,
Sorry, I should have added that the statement about the dialogue being contrived, was describing the stituation as it stands now.
The only time there has been “dialogue” as it was intended, are through cases dealing with s. 7. And all that has really amounted to is the legislature copying exactly what the SCC decided in its reasons. Examples can be found in legislation after the rape shield, provisions regarding bail, and autonomatonism cases. The court wanted discretion, and the legislature blindly gave it to them, or should I say ‘us’, at least that is what they would say.
Out here in BC we have this dirty little secret of Bountiful, BC, a community of fundamental Mormons who live the life of polygamy with multi-wives and children who are enslaved to their system through ignorance. They thumb their nose at the law on a daily basis and with impunity because they know the legal authorities are scared spitless to lay charges or open the dirty little secret for an airing because of precious Charter and the rights of this sect to exercise religious freedom. The Americans have gone after the fundamental Mormons in the US but our legal system sits mute in a blissful ignorance that is carefully contrived. Welcome to Trudeauopia.
It is a rare day when I would try to improve on a comment by Mark Collins but let me add to his last sentence: … whenever the Courts usurp the function of Parliament, as they did on the SSM issue, by “reading in �a right ” which Parliament had specifically rejected when the Charter was passed.
Regarding The NOTWITHSTANDING CLAUSE the fear that activist Courts might someday overstep the proper bounds of their power was precisely the reason the Premiers were offered the assurance of The NOTWITHSTANDING CLAUSE.
It is an incontrovertible fact that The Charter would not have been adopted without The NOTWITHSTANDING CLAUSE.
If you aren’t going to use this constitutional power, reserved to Parliament precisely to deal with this kind of Judicial overstepping, when would you ever use it?
The Constitution contains an amending formula. Those who want Canada to recognize SSM or to remove The NOTWITHSTANDING CLAUSE should use it and not attempt to amend The Constitution by unauthorized means.
They should stop pretending that they are standing up for The Constitution. They are not. They are tearing it down.
This issue has more to do with whether we are a people of laws than whether the recognition of same sex unions, as indistinguishable from heterosexual unions, is a good thing.
The constitution is the recognition of basic rights which must prevail regardless of the will of the majority which occasionally, in times of strife or when dealing with an emotionally charged issue, may act in a manner contrary to the basic rights of all Canadians.
Most of the Charter deals with legal process. Read Sections 7 thourgh 14. The right to counsel, the right not to be subjected to unreasonable search, the right to make full answer and defence and so on. These are predominantly due process rights.
Therefore those advocationg the use of the “notwithstanding clause” should be careful what they wish for. Do you want to give the police and the state the right to absolute and arbitrary power? Do you agree that the state should have the right to search your residence without a warrant and without rasonable cause to believe an offence has been commtted? Do you want to be arrested and detained without bail and without charge?
The use of the “notwithstanding clause” must be used guardedly and with extreme caution by both the legislatures and Parliament. Those who are dissatisfied with alleged judicial activism should look at the uderlying value being protected. We must then ask if routinely overriding constitutionally protected rights is something we want to promote.
I, for one, do not.
Our Canadian Charter of Rights and Freedoms is a pile of rubbish- intended solely to give constitutional lawyers in Ottawa a reason for a hefty paycheque! Want to defend your ‘rights’ under the charter: hire a lawyer. Then, the taxpayers can pay the fees of another lawyer to fight you! Garbage!
With the greatest of respect Dave, that is NOT the primary benefit to the Charter. You likely have not been a member of a group that was targeted by police because you fit some kind of “profile”. When I was in Universtiy I would drive home from time to time and almost invariably would be stopped by police. My vehicle would be thoroughly searched. I would generally be treated with disrespect because I had long hair and an older car. I was obviously a “drug smuggler” in the eyes of the police. Never once was I breaking any law.
That kind of behaviour (and far more egregiours conduct) has been curtailed due to the Charter. Every time a Charter right is litigated in the Courts and clarification is provided about the limits of police power, we all benefit.
I basically support SSM as a stabilizing influence on society (please don’t scream, that’s how I feel). However, I do not consider it a fundamental human right.
What I would like to ask the parties, is that if same-sex marriage is a fundamental right, will they consider sanctions or other diplomatic measures against other countries that do not protect it as a right?
Wade,
How is it helpful to set up straw men, to wit: (My responses following your questions.)
1. Do you want to give the police and the state the right to absolute and arbitrary power?
R. Who said anything about giving the police and the state absolute and arbitrary power. I am submitting that the law applies to all-including judges. Those who can “read in ” rights which have been specifically excluded can “read out” rights which are specifically included. ( For example the cases of Packer and Brockie)
2. Do you agree that the state should have the right to search your residence without a warrant and without reasonable cause to believe an offence has been commtted?
R. No , nor do I believe the Leafs will win the cup this year-or any time soon. More seriously, providing for civil unions rather than SSM will abridge our section 8 Charter rights?
3. Do you want to be arrested and detained without bail and without charge?
R. And our section 10 rights as well?
4. alleged judicial activism
R. “Reading-in” a “right” which has been specifically excluded is not judical activism? Then I guess allowing -to use your words- a search of your residence without a warrant and without reasonable cause to believe an offence has been commtted and the arrest and detention of you without bail and without charge would not be judicial activism.
5. if routinely overriding constitutionally protected rights is something we want to promote.
R. Who is promoting this?
Wade, it seems to me that what is being promoted are arguments and accusations that do not do justice to the issue. Those of us who do not support SSM (myself primarily because of the unconstitutional way it came about) would like to see the debate elevated rather than the name calling, demagoguery and stupidity which prevails at present -a prime example being the ridiculous question put to Harper in the French language debate as to what he would do if he had a gay child.
Why he would love him of course, just as I love all those wayward Judges who didn’t notice that while they were declaring rights- which were specifically excluded from the Charter (rightly or wrongly)-they were usurping the role of Parliament.
Our first interactions as infants are with our caregivers/parents. There has been no long term study done on how children are being affected by social engineering such as SSM, how they feel about having two of the same parents. It’s no coincidence that the self-absorbed boomers (of which I am one, sort of)have done their utmost to impose their views on people. Screaming/protesting/anarchy worked so well in the sixties and seventies … sigh. Nothing has changed. The great tragedy is, they are now lawmakers and judges.
Isn’t there a case in Ontario where a birth mom was going to give up her child, but when she found out the baby was going to go a lesbian couple, she decided against it? Are birth mom’s rights guaranteed under the Charter?
And further to the constitution: Martin has let a cat out of the bag; he is really President Martin. He said on Dec. 9 that “Fundamentally, the foreign policy of this country, the overall policy of this country, is set by the Prime Minister and I’ll continue to do that…”
http://www.brandonsun.com/story.php?story_id=13072
It has been generally taught that in Canada our government follows the Westminster model of cabinet government in which foreign policy (or any other major government policy) is set by cabinet with the prime minister as primus inter pares. Management of cabinet-agreed policy is the duty of the foreign minister who also has primary responsibility for giving foreign policy advice to cabinet in the first place. Other ministers have the same role in their areas of authority.
But in Canada over the last 40 years members of cabinet have acquiesced in the prime minister’s personal assumption of policy-making for the government as a whole. They have become mere placemen. Cabinet members did not defend their individual ditches; their authority died in them. Paul Martin has simply spoken the truth publicly.
Mark Collins
Ottawa
Good for you Mark. Speaking truth to power. No doubt Man(?)sbridge, or one of the others, will raise this very point in tomorrow night’s broadcast(or not) depending on whether he (they) want(s) to keep his(their) cushy GOVERNMENT -yes telling it like it is- job of reading (spinning) the news.
Paul Martin tells us that only his (Liberal)values are true Canadian values.
Where are my rights as a Canadian to hold different values than Paul Martin? For example, I believe in honest government. Does he? It is hard to believe he does given the fact he has done nothing to punish wrong-doers in the Liberal Party.
Can he assure me that my rights are protected under his Charter? I think not. He does not hold democratic values dear and is the last person on earth who deserves to challenge Stephen Harper on his qualification to be P.M.
There is no doubt in my mind that Mr. Harper is far more qualified than Paul Martin to be P.M. – and I used to work for Mr. Martin!
You all have it wrong on the same-sex thing,
Martin could care less about the charter.
The whole thing is a sham.
The only reason Martin redefined marriage, was
to repay his debt to Scott Brison
for crossing the floor.
….Ya, that simple and that shallow….
Just wait and see what it will cost Canadians
for Martin to repay Belinda..!!!!!!
As someone who was on the periphery of the Constitution and Charter discussions, it was specifically two Premiers – Blakney (N.D.P., Sask.) and Lyon (P.C., Manitoba) whose agreement to the Charter was secured only on condition that the Not Withstanding Clause be included. Liberals in Ottawa were not amused