Revolutionary Moderation

The Notwithstanding Question

There was some discussion among the Global 'experts', right before I had to cut the wall-to-wall debate analysis short for my job, about Martin's declaration that he would, "eliminate the notwithstanding clause". Except, and the news stories and spin rooms may be reflecting this, that's not what the Prime Minister said. What he proposed, and he was careful to couch this, was a restriction to keep the federal government from invoking the clause. That would still leave ten governments in this country with the opportunity to apply it to their own legislation.

Who's up for a s. 33 refresher? I remember the fun during the provincial elections I ran in, with angry constituents asking Lyle Oberg why his government hadn't yet used the notwithstanding clause to opt Alberta out of the gun registry. Or something. Now, these are not dumb people. However much my politics and the politics of farmers in rural southern Alberta may not overlap, I give them credit for being generally pretty smart individuals. But talk the subtleties of constitutional issues to the average voter, and they tend to glaze over. Who can blame them? The most extensive discussion of the notwithstanding clause in Alberta was around the recognition of gay marriage (could Alberta avoid it with the use of the notwithstanding clause? The answer, which few politicians admitted but most must have realized, was no). No wonder voters came to the conclusion that s. 33 is a big stick that's used to smack the federal government around.

In the meantime, even though it could, the federal government has never felt the need to invoke s. 33.

What would it take to legislate the change Martin is suggesting? Would the federal government be satisfied with a Parliamentary resolution establishing it will never use s. 33? It would have the same effect in law as the various pieces of legislation enacted by governments banning deficit spending - there'd be a stink overturning it, but a government that wanted to violate the law would only have the additional impediment of revoking it. Conversely, the Liberals could attempt a constitutional amendment, which in this case (affecting the federal government alone) wouldn't require any provincial support

44. Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.

but we return to the same problem we have with the resolution: repealing the amendment would be a simple matter of getting the approval of the House of Commons.

What Paul Martin is talking about is a symbolic act of claiming he likes the Charter better than Stephen Harper. That strategy might even work. But the proposal simply doesn't have any practical effect.