Wednesday, April 11, 2007


To the chattering classes, the notwithstanding clause is considered akin to the so-called Satanic verses in the Qu'ran, an embarrassing interpolation into a sacred text which must be ignored or explained away lest the faithful be scandalized and the faithless emboldened.

The rest of the country apparently doesn't share the same sense of shame and disgust:

More than two-thirds of Canadians believe politicians should have the power to override court decisions by having the final word on the Charter of Rights and Freedoms in certain circumstances, a survey indicates.

With the 25th anniversary of the Charter approaching, the Montreal-based Association for Canadian Studies and the Carleton University Survey Centre in Ottawa polled Canadians on what they think of the controversial "notwithstanding" clause in the Constitution, which allows governments to override rights.

Sixty-eight per cent either strongly or somewhat agreed the "notwithstanding clause" should remain intact.


The notwithstanding clause, added to the Constitution as a deal-maker at the insistence of several premiers during negotiations in the early 1980s, has seldom been used in Canada.

Both Parliament and provincial governments have a limited power to pass laws that are exempt from certain Charter provisions for a period of five years.

Until now, it was safe to assume that the public believed, as do the elites, that the Charter is the fons et origo of all our rights and freedoms, and that to change one word within (or not to read in many words without) would lead the nation into tyranny.

But as our judiciary has been spinning out of control with interpretations of the Charter that recognize strange new rights while denigrating others, perhaps people are becoming reassured that there is a remedy to rein in the courts.

Certainly the people do not share the same faith in judicial infallibility as the elites, else they would not be calling for an elected judiciary at the same time.

Most of our constitutional protections and conventions have arisen out of the need to check the predations of the executive or legislative branches. Now, it seems, we need to check the predations of the judiciary.

Source: National Post

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