The Constitution

It seems to me that reform of the Canadian Constitution including its patriation in 1982 was the issue that just wouldn't go away this century. There were 6 seperate rounds of Intergovernmental negotiations over no less than three complete generations of political leadership. The widest imaginable range of reforms and amending formulas were considered and debated and decided against. It was on the desk of nearly every Prime Minister including King, Pearson, Trudeau, Mulroney. (it actually started much sooner) When it was patriated under Trudeau it was a compromise and that compromise gave us "the notwithstanding clause" or in french (ironically) "le clause derogatoire".

This single constitutional innovation is the element of our constitution of which I personally am most proud. While I wasn't suprised by the Prime Minister's announcement during the debate, I must say that I disagree. Democracy requires that the collective will be given some place in policy and that popular sovereignty by protected. In the tension between individual rights and democratic choice the "notwithstanding clause" is not only a safety valve for the democratic voice but it is also a mechanism by which conflicts between rights can be mediated.

This is the point that the Prime Minister eloquently made in the last election. He declared that as Prime Minister he would never use the "notwithstanding clause" to take rights away from Canadians but only to protect them. The problem with leaving the protection of rights to the courts and to the courts alone is that they have only the power to strike down or uphold laws they did not write. There is no mechanism in the judicial branch of government for the proposing of new positions. The court must choose whether to uphold a law or to demolish it, they have not the recourse of reform.

This third option of reform is the genius of the "notwithstanding clause". Because parliament is capable of enacting new solutions to problems and reforming laws rather than just striking them down it is reasonable that the Parliament is the place where the final recourse of the protection of our rights rests. In a conflict between rights or in reaction to a judicial decision the parliament can do what the courts cannot and propose a solution to the problem and in so doing lend the weight of their popular legitimacy to the compromise position.

Opponents argue that the use of the notwithstanding clause is a step towards tyranny and I agree that this parliamentary power could be abused. Thankfully it's abuse could only ever be temporary and the political checks and democratic accountibility mitigate this risk to a very high degree.

The failure of the notwithstanding clause is not that it exists but that no one has yet had the courage to use it at the federal level. This brilliant constitutional innovation enables our parliament to do what no other democracy has yet accomplished and that is to mediate the conflict between individual rights and communal sovereignty in a positive and constructive way rather than a negative and divisive one.

It is my hope that this understanding will percolate past the political risks of legislative innovation and that one day soon the use of the notwithstanding clause will demonstrate to Canadians that this device is not a risk or a danger but instead is a powerful tool for democracy and reform. A powerful tool for vision.

A concurring opinion from a great liberal mind.