Paul Martin notwithstanding
Last night, in the course of the leader's debate, Paul Martin pledged that the Liberals would amend the constitution to remove the "notwithstanding clause" from the Charter of Rights.
Before considering this proposition, let's review the situation. Our parliamentary democracy is founded on a number of principles. Perhaps the most important is the concept of the Supremacy of Parliament. It provides that of the three branches of government, Parliament, the Judiciary and the Executive, Parliament rules.
Parliament is accountable to the people, and consists of duly elected representatives of the people. The Judiciary is not accountable to the people, or anyone else for that matter, and is not elected by anyone.
In the past, the Judiciary was controlled by its own sense of its proper place in the Canadian democratic system. It viewed its job to be applying and interpreting the laws enacted by Parliament. The Judiciary did not create laws.
That changed after 1982 as a result of the Charter of Rights, one of Pierre Trudeau's many misguided and destructive conceits. Using the Charter, Chief Justice Brian Dickson and Justice Bertha Wilson rained down a series of judgments which stretched the words of the Charter beyond recognition. Police authority and powers were severly curtailed, as if Canada had been a police state prior to being saved by Dickson and Wilson. The Supreme Court of Canada decided that it could "read in" powers which were not set out in the Charter. They could invent new law, they decided.
In a short time, the law was not what Parliament enacted, it was what the Supreme Court of Canada said it was. The Court went so far as to direct elected legislatures to enact law which that legislature had specifically considered and rejected. (Vriend) So much for the Supremacy of Parliament and parliamentary democracy in this country.
To their shame, the elected legislatures and federal Parliament, took this lying down. The Supreme Court of Canada was running amok and out of control, but it became a matter of poitical dogma that no premier, except that of Quebec, and certainly no Liberal Prime Minister, would use the only check on judicial excess, which is the "notwithstanding clause" in the Charter of Rights.
We have no mechanism in our system to check or balance the judiciary. There is no public input in the appointment of judges, and they are appointed until they are 75. They cannot be fired, except by Act of Parliament, which is a political impossibility.
No mechanism was necessary before Brian Dickson became the Chief Justice, because of the self control and sense of propriety of the judges, as well as their clear understanding of the position of the Supreme Court of Canada in the system.
Now, with 20 years of overweening assumption of power by the Supreme Court, it has become necessary to rein it in and restore the Supremacy of Parliament. Since no other mechanism exists to do this, the notwithstanding clause in the Charter of Rights must be used to do so. That clause provides that legislation shall operate notwithstanding the Charter for a period of five years, if the legislation expressly so declares.
It has never been used by the Liberals. It should have been. For Paul Martin to suggest last night that the only check and safeguard that exists to control an out of control Judiciary be abandoned, shows that Paul Martin and the Liberals either don't understand our democratic system, or are so in the grip of a Liberal ideology that they are prepared to damage or destroy our system rather than change their thinking. Probably both.
Our federal and provincial legislatures should not only retain the notwithstanding clause, they should use it whenever necessary to assert the Supremacy of Parliament principle, when it has been subverted by the judiciary. It is the only way we have to check and balance an otherwise unaccountable, uncontrolled judiciary.
Paul Martin was once again hugely wrong last night. His proposal to dump the notwithstanding clause would do great damage to Canadian democracy, and leave us with no check on the judiciary at all.
This man is not just morally unfit to govern - he is too stupid to govern.
Before considering this proposition, let's review the situation. Our parliamentary democracy is founded on a number of principles. Perhaps the most important is the concept of the Supremacy of Parliament. It provides that of the three branches of government, Parliament, the Judiciary and the Executive, Parliament rules.
Parliament is accountable to the people, and consists of duly elected representatives of the people. The Judiciary is not accountable to the people, or anyone else for that matter, and is not elected by anyone.
In the past, the Judiciary was controlled by its own sense of its proper place in the Canadian democratic system. It viewed its job to be applying and interpreting the laws enacted by Parliament. The Judiciary did not create laws.
That changed after 1982 as a result of the Charter of Rights, one of Pierre Trudeau's many misguided and destructive conceits. Using the Charter, Chief Justice Brian Dickson and Justice Bertha Wilson rained down a series of judgments which stretched the words of the Charter beyond recognition. Police authority and powers were severly curtailed, as if Canada had been a police state prior to being saved by Dickson and Wilson. The Supreme Court of Canada decided that it could "read in" powers which were not set out in the Charter. They could invent new law, they decided.
In a short time, the law was not what Parliament enacted, it was what the Supreme Court of Canada said it was. The Court went so far as to direct elected legislatures to enact law which that legislature had specifically considered and rejected. (Vriend) So much for the Supremacy of Parliament and parliamentary democracy in this country.
To their shame, the elected legislatures and federal Parliament, took this lying down. The Supreme Court of Canada was running amok and out of control, but it became a matter of poitical dogma that no premier, except that of Quebec, and certainly no Liberal Prime Minister, would use the only check on judicial excess, which is the "notwithstanding clause" in the Charter of Rights.
We have no mechanism in our system to check or balance the judiciary. There is no public input in the appointment of judges, and they are appointed until they are 75. They cannot be fired, except by Act of Parliament, which is a political impossibility.
No mechanism was necessary before Brian Dickson became the Chief Justice, because of the self control and sense of propriety of the judges, as well as their clear understanding of the position of the Supreme Court of Canada in the system.
Now, with 20 years of overweening assumption of power by the Supreme Court, it has become necessary to rein it in and restore the Supremacy of Parliament. Since no other mechanism exists to do this, the notwithstanding clause in the Charter of Rights must be used to do so. That clause provides that legislation shall operate notwithstanding the Charter for a period of five years, if the legislation expressly so declares.
It has never been used by the Liberals. It should have been. For Paul Martin to suggest last night that the only check and safeguard that exists to control an out of control Judiciary be abandoned, shows that Paul Martin and the Liberals either don't understand our democratic system, or are so in the grip of a Liberal ideology that they are prepared to damage or destroy our system rather than change their thinking. Probably both.
Our federal and provincial legislatures should not only retain the notwithstanding clause, they should use it whenever necessary to assert the Supremacy of Parliament principle, when it has been subverted by the judiciary. It is the only way we have to check and balance an otherwise unaccountable, uncontrolled judiciary.
Paul Martin was once again hugely wrong last night. His proposal to dump the notwithstanding clause would do great damage to Canadian democracy, and leave us with no check on the judiciary at all.
This man is not just morally unfit to govern - he is too stupid to govern.
posted by Brian Purdy, Calgary at 9:03 a.m.
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