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This election campaign has revived the debate over the
Charter of Rights and Freedoms' notwithstanding clause.
Most
party leaders have denounced Section 33 -- the notwithstanding
clause -- as a threat to Canadians' individual rights.
The
clause permits Parliament and the provincial legislatures
to override court decisions creating new rights or expanding
old ones.
When
unelected judges become too activist, when they "read
in" rights to the Charter that its authors never
intended, Section 33 permits the people's elected representatives
to reverse all or part of those decisions.
The
notwithstanding clause was inserted expressly to counter
the new powers the Charter gave judges.
Under
Canada's pre-Charter constitution, judges could rule a
law within a legislature's or Parliament's jurisdiction,
or not. If not, judges could nullify it.
This
permitted judges some latitude to declare a law unconstitutional,
but it was much harder for judges to throw out entire
laws or radically reinterpret laws from the bench.
The
"judicial review" provisions of the Charter
changed that. Once the Charter became part of our constitution,
judges had the authority to amend, rewrite or strike down
any federal, provincial, territorial or municipal act
brought before them.
This
is a staggering amount of clout to give unelected persons
over the deliberations of elected ones, and the authors
of the Charter recognized it as such.
Former
Alberta premier Peter Lougheed has often said that without
the notwithstanding clause there would have been no Charter.
Eight
of 10 premiers opposed the Charter. Only Bill Davis of
Ontario and Richard Hatfield of New Brunswick sided with
Pierre Trudeau.
The
eight who opposed it feared a massive shift of power from
the provinces to the judiciary. They feared the federally
appointed Supreme Court of Canada would rule always in
favour of centralizing power and always against the autonomy
of the provinces.
Lougheed
explained, "We needed to have the supremacy of the
legislatures over the courts ... We did not (want) to
be in a position where public policy was dictated or determined
by non-elected people."
From
the start, the notwithstanding clause was intended as
a counterbalance to the Charter's judicial review clause.
So
for starters, any politician who claims Section 33 violates
the Charter is talking through his hat.
The
notwithstanding clause is an integral part of the Charter.
It
cannot, by definition, undermine the Charter, any more
than, say, the equality provisions undermine the Charter.
I
am not deaf, though, to the philosophic argument that
Parliament and the legislatures should never be able to
override fundamental rights. Our key liberties should
never be subject to the whim of the majority.
Therefore,
the notwithstanding clause is anathema to individual freedom
because it permits Canadians to enjoy their fundamental
rights only so long as no government invokes Section 33
to limit them.
But
if Section 33 is such a threat to freedom, why is there
not the same claim made of Section 1?
Section
1 is the judges' notwithstanding clause. It permits judges
to negate fundamental freedoms. And judges have used Section
1 to restrict our rights far more often than legislators
have used Section 33.
Section
1 "guarantees the rights and freedoms set out in
(the Charter)" to all Canadians, but then it permits
judges to limit those rights if they believe such limits
are "demonstrably justified in a free and democratic
society."
That's
a loophole you could drive a truck through. And judges
have driven through it more than 100 times since the Charter
was entrenched -- vastly more often than elected politicians
have used the notwithstanding clause.
Indeed,
the Supreme Court used Section
1 to override our freedom of speech just last month.
In
the case on third-party advertising during elections --
the so-called gag law -- the court found that third parties
had a right to speak out during elections. They even had
the right to spend buckets of money making their message
heard. The Charter gave them that right.
But
the judges used Section 1 to take those rights away, claiming,
in effect, that democracy is threatened by too much freedom
of expression.
Judges
have hidden behind Section 1 to advance women's rights,
protect minorities from debates they don't want to hear
and limit due process in trials.
They
even used Section 1 in a 1995 case known as Egan v. Canada
to override gay rights -- rights which the same courts
have said Parliament must never infringe upon.
So
where's the outcry against Section 1 to match the furor
over the notwithstanding clause? If we have fundamental
freedoms too precious to be constrained by legislators,
are those same freedoms not also too precious to be limited
by judges?
A
freedom is a freedom is a freedom, isn't it?
The
difference, of course, is one of ideology. The liberal-left
likes the way judges limit rights, but they are aghast
at the rights legislators propose to circumscribe.
Constitutional
and judicial expert Ted Morton of the University of Calgary
says the debate over Section 33 "has nothing to do
with rights or freedoms. It's about preserving a judicial
monopoly on decisions about rights," because most
judges share the same soft-left world view of rights favoured
by political leaders who oppose the legislative override
contained in Section 33.
Lorne Gunter
Columnist, Edmonton Journal
Editorial Board Member, National Post
tele: (780) 916-0719
fax: (780) 481-4735
e-mail: lgunter@shaw.ca
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