Defending the Notwithstanding Clause
The english language leadership debate
Since my days in University, I’ve heard arguments over an instrument that, I’m told, was once unique to Canada’s constitutional apparatus – the "notwithstanding clause". Originally, tihis was a political response to getting all provinces (except Québec) to sign Canada’s constitution. A concession that let Canada amend the old British North America (BNA) Act and claim its constitution as its own.
Both then, as now, it was a controversial decision. None of my college professors liked it – all though it was weak of then Prime Minsiter Pierre Elliott Trudeau to let it stand. The clause would let any provincial or the federal government occasionally override court rulings on any part save for the first thirteen sections of the constitution for any reason (practically speaking). And insodoing what, said the cirtics, was the point in having a constituion at all? For all practical purposes; the governemnt had no "checks" to balance the executive arm of government.
Well times sure have changed….because now the Tories (which then championed opposition to the Constitution’s repatriation as outlined) are the proponents of the notwithstanding clause. And the Liberal Party (yes, the same party of Pierre Elliott Trudeau) has now emerged as its opponent.
Why the change? Well it’s not hard to imagine the Liberals need a distraction from current political woes to help them win the election. And it’s a pretty cynnical move if that’s the case. Regardless, I never understood why the notwithstanding clause was such a bad idea – my college professors never did a very good job of explaining why this forumla doesn’t work – and indeed, it seem to hae worked just fine for 20 years or so.
So where is there really a need to change it again?