25 March 2007

Swords and Shields: The Charter and the Notwithstanding Clause

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.


Nathan said...

Wow thats quite a bit to take in all at once. I had to brush up on my Law a bit to remember what was going on, but was not the S.33 instated for the protection of rights of Canadians? I know of course that because the government has say that they may decide to use it toward their own means, but even so is not a Canadian using his own rights to harm other Canadians cause to keep it in effect? Granted that would be an extreme case but in all honesty the understanding is there and the reasoning for abolishing this act is not at all hazy to me.

P.S. I had an example and i shot m yself down. still a little further explanation would be much helpful.

here was my example: What if S.2 the right to religion and belief (paraphrased) was in direct violation of S.7 which states "everyone has the right to life, liberty, and security and the right not to be deprived thereof.."

I was thinking along the lines of religious Sacrifice, say a religion believed in ritual sacrifice, that would be violating S.7, but even if the people dying believed that it was something had to be done. Now I also thought along the lines of kidnapped people too. So feel free to thrash me if you so please.

RGM said...

Section 33 is definitely more than a mouthful to chew on. Remember also that it, like all parts of the Constitution, applies only to the federal government and what it is allowed or not allowed to do to Canadians. Religious institutions and other non-state entities are not subject to the clauses of the Charter. Now, if it were a government institution that was advocating religious sacrifice, then definitely s.7 rights would be violated and the only way that the government could get away with it would be to invoke the notwithstanding clause. Of course, you would have a very hard time convincing Canadians that allowing a religious right to trump s.7 rights in that case is something that we should accept as a public good.

There are potential clashes between religious freedoms and Charter rights, but they aren't guaranteed to come into play. Back during the Mulroney days the governing Conservatives were seeking to pass abortion restriction laws. Many small-c and religious conservatives did and still do see abortion as an attack on a living person, thus abortion is a violation of s.7 and the government would thus be justified in using the override to ban abortions. However, Mulroney loathed the NWC and would never use it, so ultimately they were unable to pass an abortion law that didn't potentially conflict with the Charter. The same-sex marriage case was another perceived instance in which the NWC could have come into play to protect a religious right, but using the override probably would have resulted in a Supreme Court challenge on the grounds of equality rights under s.15. In that instance, the Court may have been obliged to decide which set of rights were more important and trumped the other. It never did come to that.

Hope that helps a little bit. If nothing else, wait for my essay to get published and that should help even more.