However, scholars of British constitutional law, upon which much Canadian constitutional jurisprudence is based, stress that if the fundamental jus commune or law of the land was to be overridden in such a cavalier way by a Parliament exercising such arbitrary parliamentary supremacy the people would have the ability to revolt against their government much as the rebels revolted against the Crown in the thirteen colonies.
Of course, the big difference between Canada today and the thirteen colonies is that
we would have elected the bastards. Or at least 36% of us would have ...
If a society is willing to elect a government that then uses a notwithstanding clause to override constitutional guarantees of freedom of speech or the right to a fair trial or the right to the equal benefit of the law, it's got a big honking problem already. A bit of parchment is really not much of a bulwark against that kind of problem.
The constitution and the rights and freedoms it guarantees are the result of a consensus, minimal though it may be. If the consensus disappears, it won't matter what the constitution says. Yes, the notwithstanding clause gives a government an easy way to legislate contrary to that consensus, but if the consensus is gone, what would there be to stop it from getting the constitution amended anyway?
The notwithstanding clause reflects the belief in the supremacy of Parliament -- that Parliament, the people's elected representatives, knows best what is best for the country. The Supreme Court in fact defers to Parliament already in areas that it considers to be matters of public policy. It can sometimes do this under section 1 of the Constitution:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
The notwithstanding clause could be used where the SCC applied the tests it has developed for applying that section and found that the govt's legislation failed them, e.g. that while its objective was pressing and substantial, the effect on individual rights of the measures it proposed to take was disproportionate to the harm it sought to prevent.
http://www.iijcan.ca/eliisa/highlight.do;jsessionid=DA22E259EF7B00ACE419D48EE7F4CFCA?path=%2Fca%2Fcom%2Fchart%2Fs-1.html&language=en&query=%222004+SCC+66%22While the substance of the s. 1 test has essentially remained constant, its application has varied with the circumstances. The Supreme Court of Canada has stressed that the test is flexible and must be applied with sensitivity for the particular context ... . Broadly speaking, where a legislature has been obliged to strike a balance between the claims of competing groups, the Court has been more inclined to defer to the legislative judgment than where the government acted as the "singular antagonist of the individual whose right has been infringed", as is the case with criminal or penal laws ... . The Court's recent judgments, however, suggest that it views the mediator/antagonist distinction as imprecise, and that it will scrutinize the circumstances carefully before determining whether any deference is due ... .
... political complexity is not the deciding factor in establishing a margin of deference under s. 1. Rather, the margin will vary according to whether legislature has (1) sought a balance between the interests of competing groups, (2) defended a vulnerable group with a subjective apprehension of harm, (3) chosen a remedy whose effectiveness cannot be measured scientifically, and (4) suppressed an activity whose social or moral value is relatively low: ... .
... It is established that the deference accorded to Parliament or the legislatures may vary with the social context in which the limitation on rights is imposed. As with context, however, care must be taken not to extend the notion of deference too far. Deference must not be carried to the point of relieving the government of the burden which the Charter places upon it of demonstrating that the limits it has imposed on guaranteed rights are reasonable and justifiable. To carry judicial deference to the point of accepting Parliament's view simply on the basis that the problem is serious and the solution difficult, would be to diminish the role of the courts in the constitutional process and to weaken the structure of rights upon which our constitution and our nation is founded.
So the issue would likely arise if the SCC found that the situation was *not* one in which it should defer to Parliament's judgment.
If the Chaoulli decision had been based on the Charter (it wasn't, fortunately), it would have meant that the Court had found that Chaoulli's "right" to buy private insurance just in case some day he needed an air ambulance and the govt couldn't provide him with it outweighed the interest of the entire Canadian society and every individual in it in having decent healthcare accessible to everyone -- either that or the Court simply rejected the overwhelming body of evidence and argument to show that a two-tier system will virtually inevitably lead to the deterioration of the public tier.
The Court is fallible; is its opinion on matters of healthcare economics and public finance better than a government's? I don't necessarily think so. Should a Cdn govt be able to override a decision of the SCC based as much on the SCC's opinion about those things as it is on "rights"? I think so.
On the pure "rights" question alone, should Chaoulli's hypothetical need for something, and the hypothetical harm he might suffer if he doesn't have it, outweigh the interest of all Canadians in having access to decent healthcare? I don't think so. The loss they will suffer if the present system is undermined is no more hypothetical than his. Should a Cdn govt be able to say that it chooses to protect everyone else's interests at the hypothetical expense of Chaoulli's? I do think so.
So if the SCC ever did decide that a prohibition on private medical insurance was contrary to the Charter, I would *want* the Cdn govt to use the notwithstanding clause.
Our constitution is a living tree, but it is still essentially a combination of 18th-century liberalism, in its protection of purely individual freedoms (
liberté), and 20th-century liberal democracy, in its protection of minority rights (
égalité). It may need grafts, not just new twigs, if Canadian-style social democracy is to continue to develop:
fraternité, social solidarity -- continuing to extend benefits, not just freedoms or rights, to members of society, in the interests of not just individuals but the society as a whole.
I think Martin's renunciation of the notwithstanding clause was bizarre and unthought out ... although one might have to think that the Liberals renouncing a clause that could be used to enable Parliament to extend social and economic benefits and increase social and economic equality isn't that odd.
It's unfortunately a very complex subject that doesn't lend itself well to sound bytes in election campaigns, but I'd like to see somebody standing up for the notwithstanding clause from a perspective in what I see as the Canadian tradition.
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