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Rely on Canadians to turn a simple clause in their constitution into a political no-fly zone. The Charter of Rights and Freedoms contains the following section:
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 sections 7 to 15 of this Charter.
Also known as the ‘notwithstanding’ clause, this section allows Parliament or a provincial legislature to override certain of the democratic or legal rights enumerated in the Charter. It was introduced at the insistence of some of the premiers, but against the wishes of Pierre Trudeau. While many observers assumed that it would be used fairly regularly by Parliament as a way of overturning the decisions of the courts, it is coming close to falling into disuse at the Federal level. In fact, the sole function of the clause is to serve as a political shorthand for demonizing your political opponent. That was the essence of the macho posturing by Irwin Cotler last week, when he dared Stephen Harper to tell Canadians whether or not he would invoke the notwithstanding clause to uphold the traditional definition of marriage.
Let’s back up a bit.
In a Parliamentary system, one of the main constitutional functions of the House of Commons is to defend the rights of the people against the government. That is what responsible government means: There is a government, comprised of members of the legislature to which it can be held to account. In the face of a depredatious government, the Commons can hold up legislation, withhold supply (starve it of funds) or, in the extreme, bring it down through a vote of nonconfidence. It is a powerful mechanism, and it has served Canadians extremely well for over 150 years. We are some of the most free people in the world.

Our system rests on the British doctrine of the supremacy of Parliament. That is, in London Parliament can pass, repeal and alter any of the country’s laws, and there is no court that can declare any of it unconstitutional. The only court that matters is the court of the Commons, and ultimately of the people in elections. When Canada adopted the Charter, we introduced an uncertain element into Parliamentary democracy; it wasn’t clear how to square the 300-year-old doctrine of supremacy with the new idea that the Supreme Court, not the Commons, would now be in charge of defending the constitution against the government. This is the core of the idea, oft-repeated by Jeffrey Simpson, that we have moved from a Parliamentary to a Constitutional democracy.
One of the main arguments in favour of the notwithstanding clause was that it protects the supremacy of Parliament. That is, it keeps the final check on political power in Canada in the hands of elected representatives, not unelected jurists. So how did we get to a situation where the very thought that the government would invoke s.33 is seen as politically dangerous? There are three reasons, one sociological, one nationalistic, one legal.
1. Canadians simply don’t trust politicians very much. The fact that judges are unelected is actually seen as working in their favour, making them more trustworthy, not less.
2. In our fractious, fragmented, decentralized federation, the Charter is seen as one of the few pan-Canadian institutions. The Charter defines what it means to be a Canadian, whether you live in Corner Brook, Shawinigan, Moose Jaw, or Whitehorse. Trudeau played this point very skillfully; he accused his opponents of wanting to create a set of ‘patchwork’ rights across the country.
3. The legal argument is a bit more complicated. Begin by noting that the Charter, in fact our whole constitution, is an act of Parliament. Parliament made it, and Parliament can unmake it. The supremacy of Parliament is upheld in the very notion of a constitution that can be amended only through an act of Parliament. But this raises the further question: If nothing is truly beyond the reach of government, then why have a constitution — why have a schedule of rights — at all? There are two main schools of thought.
The first is the ‘self-binding’ theory of rights. Basically, a legislature says to itself: We love democracy, but we recognize that it can be dangerous. We, the majority, are afraid that sometime in the future, we might be tempted to pass laws that, at this moment, we see would be unjust to individuals or minorities. So, like Odysseus binding himself to the mast to get past the sirens, we will put certain laws beyond the reach of mere legislation. We’ll call these extra-special laws ‘constitutional rights’; in order to change them, we’ll have to take extra-ordinary measures that will make us think long and hard before acting to override these rights. In Canada, Andrew Coyne is the best popular proponent of this view of the Charter.
The second is the ‘limited government’ theory of rights. Derived from the work of Immanuel Kant, the point of a constitution is to spell out the metaphysical limits of government. That is, given certain assumptions about the conditions for the possibility of humans being able to exercise their capacities as rational, autonomous agents, what must government not be allowed to do? For a Kantian, the Charter simply spells out the limits of liberal government. Rights are outside the reach of the majority not for the prudential reasons of Odysseus, but as a condition for there being any just government at all.
So now we are in a position to understand the heart of the debate over the notwithstanding clause. What we have is a conflict between liberalism (and a theory of limited government and individual rights) and democracy (a theory of popular rule). We are so used to talking about Canada as a ‘liberal democracy’ that we don’t realize that, more often than not, the two halves of the description are in conflict. Pierre Trudeau was a liberal first, a democrat second. Stephen Harper — at least in his populist moments — is a democrat first, a liberal second.
These are issues over which reasonable men and women of good faith can disagree. I still haven’t figured out where I stand on this issue, because my cold rational Kantian instincts conflict with my passionate love for Parliamentary democracy. Reason over passion, said Trudeau. In my ideal world, Parliament would do the right thing, and decide, in a free vote, to uphold the rights of gays to marry.

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