Notwithstanding Not Withstood

The notwithstanding clause of the Charter of Rights and Freedoms is regarded in Canadian political discourse in a manner not unlike the "Satanic verses" of the Qu'ran: the devil's words interjected into the infallible word of Allah, never to be erased, but always to be condemned.

I'm sorry to see Stephen Harper get trapped into the pernicious myth that has arisen around the clause, as he did in last night's debate to get the media off his back about the homosexual marriage issue:

On a question about gay rights, the Conservative Leader said that, while he would put the issue of gay marriage to the House of Commons for a vote, he would not try to get around any future court decisions by using the constitutional notwithstanding clause.

"No, I will never use the notwithstanding clause on this issue," Mr. Harper said. The pledge appears to take the sting out of Liberal attacks on Mr. Harper, although a surprised Mr. Martin attempted to press on with his charge nonetheless.

"If he is not ready to use the notwithstanding clause, he should say it clearly, and the people who support him will be aware of his position," Mr. Martin said.

Mr. Harper made his pledge after he was asked how he would react if he found out that one of his two children were gay.

"It's the job of a parent to always love our children. I love my children and will love them for all their life," Mr. Harper said.

Given that the Supreme Court threw the issue back to Parliament by refusing to declare the traditional definition of marriage unconstitutional, it is false to claim that a future Tory government would need to invoke it to restore it.

At least initially, anyway, because we know how the Supreme Court would rule on the first challenge to a law restoring it.

In fact, that is the tragedy of the matter. We know little of our appellate courts' approach to the law, but we know its opinions on matters of social policy, and they are uniformly liberal.

The judiciary has exploited politicians' fear of invoking the clause to create for themselves a role as an effective third house of Parliament with the power to direct the other two, and provincial legislatures as well.

During the next Tory government, it will act as the unofficial opposition.

The best way to destroy the myth around the clause, as well as chasten the judiciary, might be for Parliament to invoke it on a relatively non-contentious matter. Once people see that the world hasn't ended because of its exercise, and that the iron fist of tyranny has not smashed down on our skulls, the public will finally understand what it's there for: to defend Parliament's supremacy and check an overzealous judiciary.

Source: Globe and Mail