Steelcitygrit [in exile]

Ruminating on all things Canadian and political.


Thursday, September 14, 2006

Canada's unsated constitutional needs

I decided to sit down and list all the possible ways that we could alter our constitutional arrangement. Since the language of "need" is used often of late, I refined my list further. Any alteration that is not necessary was crossed off. I then divided the necessary into short-term and long-term needs. Here is the result:

Long-term Constitional Needs:

1. The elimination of the Notwithstanding Clause, so that entrenched rights are sheltered from majoritarianism, tribal assertions, etc.

Short-term Constitional Needs:




Anonymous Anonymous said...

Be careful what you wish for.

There are at least three good reasons against dumping the notwithstanding clause: (1) it could put Canada's social policies at risk; (2) it would make the courts highly political; and (3) it's undemocratic.

The first point. In Canada, the notwithstanding clause acts as a brake on courts making extreme, irreversible decisions on fundamental rights.

You might say, well, what's wrong with the courts recognizing constitutional rights? What could be wrong with freedom of speech or freedom of religion? Well, some might say the Chaoulli decision is an example of this darker side of the Charter, as it effectively says that prohibitions on private health care are unconstitutional if the public system provides inadequate care. There are also rumblings that eventually the courts will recognize positive rights that require governments to spend significant amounts of money on providing services, which means there's less to spend on other services.

The point is that the Charter, being flexible, can be used to roll back and interfere with social policies that many people think are progressive rather than conservative.

Now, the second point. The US Constitution has no analogue to the notwithstanding clause. When the US Supreme Court makes a decision about constitutional rights, nothing short of a constitutional amendment (or the Court reversing itself) can change that.

As a result, the Americans are very concerned about who sits on their Supreme Court. That is perhaps one reason why their appointments process has become such a battleground - because SCOTUS decisions can reshape US society and cannot be easily undone, all sides fight as hard as they can to make sure their people get on the bench.

So, if you remove the notwithstanding clause, you make the SCC the final arbiter on many important decisions. That risks turning the SCC appointments process into a zoo and the court into an unelected policy-making body. Not a happy prospect.

Finally, the third point, which can be made briefly: Do you really want the last word on many critical social decisions to be given to nine unelected individuals who represent a very narrow cross-section of society and who are ill-equipped to consider factors other than legal ones?

I have no problem with the notwithstanding clause. It is such a political hand grenade that few leaders would actually try to employ it to deny people's rights. Nutbars in Alberta may mutter about using it to roll back protections for gays and lesbians, but talk is cheap, particularly when it comes from the loony fringe. So I'm not worried.

5:42 PM  
Blogger fragmunt said...

To anon -
excellent post and very informed.
Why not identify yourself as anonthepuck or anon2to, anything so that we can keep seperate you from the nutbar anon'ys and other albertans (like myself) out there.

7:24 PM  
Anonymous Anonymous said...

I am the original anon.

Being an Albertan myself, I should clarify that when I said "nutbars in Alberta", I did not mean to suggest that all Albertans are nutbars. On the contrary, most Albertans are lovely open-minded people.

There are nutbars in all provinces, not just Alberta, but many of the Alberta nutbars have such a pathological dislike for homosexuality that they are especially deserving of my scorn.

Also, they give non-nutbar Albertans like myself and fragmunt a bad name.

I apologize for my lack of clarity.

8:03 PM  
Blogger Steve said...

ha ha. Good man. I'll respond to this better tomorrow I think, but anonymous (who never does clarify their name-for instance=why not be johnny pneumonic etc.,) I think you missed his point considering the context.

11:02 PM  
Blogger SteelCityGrit said...

I guess I was maken a point about what sorts of constitutional changes we don't need. I didn't expect anyone to take me up on the Notwithstanding Clause, but I appreciate that you did.

Firstly, I think the Chaoulli case isn't so odious and subersive as you make it sound. If smart, Canadians can simply use it as a tool to ensure goverments provide adequate public health care. I'm not uncomfortable with the substance of the ruling, but that aside - let us not play the same game that the social conservatives do. The rule of law entails that ideology takes a back seat to certain basic tenements. The judges made a legally-sound ruling by most accounts; this is what, in a constitutional democracy, we should look for.

Your notion that removing the clause would alter the nature of judicial appointments is valid, but debatable. As things stand today PMs don't appoint potentially antagonistic judges on the reasurance that they can invoke Sec. 33 if need be. It is a fully politicized and imperfect mechanism. I'm open to ideas about reforming said mechanism. However, we are fooling ourselves when we suggest that today the process doesn't have the potential to be a political one. Nevertheless, we have a fairly uncontroversial slate of judges.

Next, to the notion that it is 'undemocratic.' This is a misunderstanding of the doctrine of liberal democracy. Democracy is not intended to be simple majoritarianism, in the same way that liberty is not intended to be simple autonomy. It is inherent in our system that we temper freedom with justice to empower the underprivileged.

Finally, will the Clause actually be put into use? Firstly, my Canada includes Quebec, and Quebec has made famous use of the clause. There is no reason to believe it won't again. This is an indication that should the ROC take a turn for the communitarian, the Clause may find itself dusted off in a hurry. Trudeau says it well: "...we should not overemphasize our righteousness." Better safe than sorry, anyway.

11:09 PM  
Blogger Steve said...

I think you've covered it. I like your style. I forget what it was I was going to say today so let's not hold our breath. As I'm sure so many were. ha ha.

5:31 PM  
Anonymous Anonymous said...

I suggest you read "PersonallyPenny" about her conversation with Ignatieff. It clears things up a litte.

6:17 AM  
Blogger SteelCityGrit said...

Thanks anon, I checked that out. It certainly is a very different message then what I was receiving. Interesting

9:00 AM  
Blogger Steve said...

Yes it is interesting, and perhaps Ignatieff believes it. I hope so and I think obviously I do or want to, but I also think there is a lot of validity to waht say Paper Dynamite has said (aside from the general vitriol at Ignatieff) that the cat is among the pigeons, in that QUebeckers are writing about it, and it may be very difficult to take a wait and see appraoch once you go around shouting to Quebeckers as Ignatieff did last weekend.

11:49 PM  
Blogger Miles Lunn said...

I agree it should be eliminated or at the very least raise it to say 80% approval in the legislature to make it a lot more difficult to invoke. I would even support saying it requires unanimous support thereby pretty much making it impossible to use without the support of all parties. In the Chaoulli case, all that was struck down was the right to buy private health insurance (which Saskatchewan, New Brunswick, Nova Scotia, and Newfoundland & Labrador have no such ban on, yet there is no parallel private system in these four provinces). There are several mechanisms to prevent or at least restrict the development of a parallel private system. I personally believe that the option should be available so governments will be faced with the choice of reducing waiting times to make such a system redundent or risk having one.

Another thing I would support adding to the constitution is property rights if its ever re-opened. This likely wouldn't chance much, it would simply ensure that when governments expropriate property, they provide proper compensation, which I don't think is unreasonable, since governments would still be able to expropriate property for public good.

11:58 PM  
Blogger Steve said...

People, this post is not about the notwithstanding clause! Think about it.

6:26 PM  

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