I generally worship at the feet of Andrew Coyne. He almost never resorts to name-calling or prejudicial language, but makes his cases purely on their merits. He is fair to the opposing viewpoint. But that is not to say he is never wrong.
He is wrong now. He has just written a column objecting to the Notwithstanding Clause in the Canadian constitution. The Notwithstanding Clause allows Canadian legislatures to pass legislation that is invulnerable to court challenge on grounds of the Canadian Charter of Rights and Freedoms. As a further check, any such exemption must be renewed by new legislation every five years.
“Why,” he asks, “is there such a ready market for invoking the notwithstanding clause, by means of which governments are permitted to suspend the rights guaranteed in the Charter, on the sole proviso that they declare openly they are doing so?”
I don’t see his objection at all. Firstly, there is certainly no “ready market” here. Since the Notwithstanding Clause was inserted in the Canadian constitution in 1982, it has only been used by two provincial legislatures. It has never been used by the federal government. Of the two provinces, it was used only once by Saskatchewan, and unnecessarily: the legislation, it turned out, conformed with the Charter anyway. It was used as a matter of course, and of protest, by the PQ government in Quebec for its first few years, but then abandoned. It was attempted once more since, later, by a Quebec government, but they backed down in the face of public protest.
So it is hardly being overused. Why should we not want to preserve it, then, as a constitutional escape valve in case of need? This seems especially necessary because the Canadian constitution is exceptionally difficult to amend.
Removing the notwithstanding clause gives the courts dictatorial powers. They are simply on their honour, as professionals, not to abuse it. This gives me pause.
It is not so much, as Coyne claims, a question of allowing the legislature to suspend charter rights, as allowing them to overrule a rogue court judgment they feel does not itself conform to the charter. Surely Coyne cannot suppose this to be impossible? Judges are not infallible.
Do we need the courts to be supreme over the legislature? Why? They have never been so in Britain, and Britain has a reputation for preserving human rights as good as Canada’s.
It seems to me that having a formal constitutional guarantee of rights is never itself of much real value. The old Soviet Union had an exemplary constitutional bill of rights, as does Communist China. It all really boils down in the end to the will of those in charge. They can twist the words any way they want; that is a historical truth. Who would have suspected two hundred years ago that a right to gay marriage was in the US Constitution?
So it is really a matter of who we trust more to protect our real, God-given rights: a small group of learned professionals, or the general popular will?
It seems to me that the current “Notwithstanding Clause” is a nearly perfect solution: the courts place a check on the popular will, and their prestige counts for something, but ultimately, the popular will can place a check on the courts as well.