The Charter of Rights and Section 33

Paul Martin threw a proposal to inhibit the Federal Government's use of the Notwithstanding Clause in the Monday debate.

Initially, I dismissed it mostly as a desperate election gambit with no real thought behind it. In fact, I mentally concluded that it should be ignored.

Then I heard Irwin Cotler talking about it on CBC's "As It Happens" program last night, and he came very close to selling me on the idea. (I'm sure if Cotler had been standing at the podium for the Liberals instead of Paul Martin, the debate would have gone much better for the Liberals - he's a very sharp speaker.)

Basically, his argument was (like mine with regards to SGM) that the rights that are embodied in the Charter - even if they are not explicitly written therein - should not be subject to the capricious whim of a government.

Further, Cotler argued that the Constitution adopted in 1982 forms a pact of trust between the citizens of Canada, the Legislative Assemblies and the Court System. Providing a government - any government - with the ability to override that trust by a mere act of legislation is simply providing the means to subvert democracy.

An interesting argument, to say the least. To date, the only cases where the terms of section 33 have been proposed haven't been justified in my view. (In the case of SGM civil marriage, most of the arguments against it were either religious moralizing, or failed utterly to demonstrate that any kind of harm was being done as a result)

There are still situations that could arise where Section 33 would be a useful clause - such as a civil emergency (a la the 1970 FLQ Crisis) where the government may need to take extreme measures in the short term which may violate people's civil and legal rights briefly, so I remain somewhat skeptical that removing Section 33 from the government's tools is entirely valid. (But Cotler came damn close to convincing me)