The latest issue of Policy Options features a revealing essay by Thomas Axworthy on the subject of the notwithstanding clause and the 25th anniversary of the Charter of Rights and Freedoms. It's a subject that is of great interest for me, and hearing anecdotes from one of the people who was present at the creation is always an interesting and enlightening experience. As you all know, I've got a forthcoming publication in the journal Federal Governance on the subject, so any major pieces on the Charter and the override always have a special interest for me, as it opens up the opportunity for me to utilize my own paper to debate others.
The introductory paragraphs of the piece utilized the theme that provided the impetus for me to write my paper in the first place: Paul Martin's pledge to abolish the use of s.33 at the federal level. Axworthy proceeds from there deeper into 2006, noting that Preston Manning has recently advocated that the federal government take steps to re-legitimize the override so that the taboo surrounding it is weakened and its usage becomes politically salient. As you can well imagine, both Axworthy and I disagree with that particular contention. As the old saying goes, "Rights are rights are rights" and any use by the federal government of s.33 would be acknowledging that it was removing a right from Canadians. There are other means under the law to limit certain behaviours, and recourse to s.33, even as a last resort, would be unpopular and would mitigate my support for the party that initiated it.
Axworthy spends a fair deal of time on the history of notwithstanding clauses in Canada and how the first override came to be. This was something that I didn't spend a whole lot of time discussing in my paper, though I did acknowledge the importance of its inclusion in the 1960 Bill of Rights and its usage by Trudeau in the wake of the FLQ Crisis. The back story to key pieces of legislation can often be as interesting as the legislation itself, and the override's tale fits that description. During the run-up to the passage of the Charter, there was a lot of negotiating between Trudeau, Jean Chretien, his adviser, and the provincial premiers over how to get the Charter passed and entrench rights in Canada in the Constitution. Lots of strategic planning, compromise, and threats of a national referendum are but three of the highlights.
I know that it's not the most interesting subject out there for many people, but when you consider how important and treasured rights are in Canada--often taken for granted--knowing the history of how they came to be guaranteed at the constitutional level is critical in gaining even deeper appreciation. Be sure to check it out, you won't be disappointed.