Wednesday, January 11, 2006

In Defence of the Liberals

Martin is stepping into the mud. I don't recall a political party ever do well when it's foundational argument becomes, “We will defend…. ”

Martin is now preaching the defense of Canada.

Two items in his list annoy and trouble me, in particular.

First he talks about defending Canada from the separtists in Québec. The Liberals have gotten federalism in trouble in Québec by defending Canada, and of course, padding their own pocketbooks in the process. Their competence and ethical shortcomings make them a handicap in Québec.

Second, he talks about defending the Charter. However, an important component of the Charter of Rights and Freedoms is section 33, a.k.a. the Notwithstanding clause. This allows a legislature to pass a law that contravenes judicial interpretation of other parts of the Charter.

While the federal government has never used it, this clause allows a legislature to wrest control of an issue back from the courts. Like anywhere else, our judges are human. They can err and they can do foolish things. This clause allows the legislature to cross them. The legislature, meaning the government, has to put its own viability on the line in order to do so. The law cannot endure more than five years without being renewed. That creates an opportunity to change the government as that period exceeds the longest time that the country can go without an election. That's why it's never been used by the feds. It has been used infrequently by the provinces (excepting Québec; that province has other issues and used it, spitefully, for many years on every law the National Assembly passed.

I think that it is important because it allows us some flexibility.

Here is the basic text of section 33:

Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

Yes, it's very romantic.

Another curious part of the charter states that:

Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

That is section 28. It clearly states, “Notwithstanding anything in this Charter, ….”


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