October 19, 2000
The notwithstanding clause - THE COMMENTARY
By Joseph Planta
VANCOUVER -- (Perhaps, my most unexciting title for a commentary thus far.) Brian Nguyen’s eGroup (The Tupper Gang) is the place for intellectual discussion via the e-mail, within a 50 yard radius. Margaret Tse’s co-endeavour for the grads of 2000, sadly hasn’t been too discussion oriented. (I would refer to Azeema Jamal here, but she expressed vast discontent to what I said about here previous, so I won’t.)
I am in receipt of a question from the Nguyen eGroup from a fellow named Brendan Newton, who judging from his return e-mail address is now going to Eric Hamber. (Wherever the hell that is.) I knew Brendan, as he and I were classmates at elementary school Charles Dickens. (Hello Azeema Jamal.) At his expense, he was the source of much laughter for me. He should have forgotten the A-1 or checkers incidents already.
I shall now bore you with my response to his very thoughtful question. He should trust his answer will be somewhere amongst the forthcoming drivel. Previously I had stated that I considered the Charter of Rights and Freedoms as particularly “dubious” because of the notwithstanding clause.
According to me and my political party, I believe in a strong federal government without sacrificing provincial autonomy and provincial determination. Meaning, the federal government should be equal in stature to that of its provincial counterparts, not the opposite which is the current state of affairs. For brief moments during the Charter’s entrenchment in the Constitution Act of 1982, Quebec Premier Réne Lévesque was seen as championing the Canadian cause, as he fought vehemently hard against Pierre Trudeau for provincial rights.
See, through the patriation process, the proposed constitution was viewed as rather overcoming in the sense it looked like power would be heavily centralised in the hands of Ottawa. Trudeau’s desire of wanting a Charter of Rights and Freedoms was balked by the provinces, thus saw the creation of the ‘Gang of 8’.
Lévesque had just lost the Quebec referendum and was looking to stop Trudeau. Lévesque signed away Quebec’s traditional right to veto to get the other 7 provinces on side against Trudeau.
Brendan, you are of the ethnic extraction of being from Mother England. A country, which I believe, up to now hasn’t its own written constitution. They seem to be doing well don’t you think?
Well that was the point articulated by members of the ‘Gang of 8’, who saw the Charter, for that matter the entire constitution, as being the most unnecessary of all. Why? I can’t seem to reconcile why, but simply said the notwithstanding clause was what the provinces wanted or they wouldn’t sign on at all.
Cut a long story short, the provinces turned its back on Quebec - and Lévesque said something to the effect that “Trudeau has fucked me,” en français of course - and the constitution was patriated, with Trudeau’s Charter, and Quebec has yet to sign on, to this very day.
I call the Charter dubious, because of the notwithstanding clause. At their whim, the provinces may override certain sections of the Charter. Funny, because these things are supposedly our entrenched rights and freedoms. In practice, it isn’t envoked all that often. On top of that there are reasonable limits placed on the use thereof, meaning that certain challenges aren’t acceptable when dealing with “fundamental” rights.
Not long after it’s proclamation in 1982, Réne Lévesque used the notwithstanding clause to implement stringent language laws with regards to signs appearing in both official languages in la belle province. Sure, the Quebec government must renew their legislation every 5 years, but then why bother with a Charter when certain provisions can be declared void by the provinces?
Brendan, hope all is well with you and that the preceding mudification has somewhat cleared up my statement. I appreciate your question.
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