Notwithstanding

The basic idea of a democracy is that the people get to decide their fates. Direct democracy if ever implemented anywhere would be messy. How you could have the general populace voting on every issue before a government seems challenging. Besides, for this process to work and not spiral in to mob rule, a fully informed populace is required.

I know many people who prefer to keep themselves as illiterate as possible of what’s happening in their country, thereby not living in fear of what they know. This reason and that keeping abreast of the whole thing is a full time job would be why we have developed the system of indirect democracy we have in enlightened countries.

In Canada we have a constitutional monarchy with a two house parliament, an executive that is a king but actually is the Prime Ministers (PM) Office (PMO) and a Supreme Court. The House of Commons was supposed to be supreme of these bodies, of all the governing bodies this is the only directly elected by the people, so in fact the only democratic body.

Our Senate, the second house of Parliament is not elected. It is an appointed body that typically mirrors the Government of the day after a time. So as a body of sober second thought, a party in power long enough is able to appoint enough partisan members that this aspect becomes the rubber stamp club.

Parliament is not Government. Government is the series of departments that run the country, they are overseen by appointees from Parliament or the Senate or even private life. These Ministers are answerable to the executive or PMO which is headed by the PM which guides our actual head of state, the King as represented by the Governor General. These roles are just figureheads and while they have constitutional and common law roles neither have ever been exercised in Canadian history.

Prior to 1982 the Supreme Court of Canada’s role was that oversight. As the voice of the people Parliament was supreme or sovereign, and make or change any law as it saw fit. Future Parliaments were never bound by past decisions. A court may be asked to rule on a new law where then the only question is whether the law falls within the scope of the body making it, they cannot just discard the law, only Parliament in this arrangement can make or remove law.

In 1982 we got our very own Constitution. And the people of the land thought this a wonderful step forward freeing us from the bindings of colonialism. The reality was less freeing. This was not a constitution such as the United States created which is a limiting document on the federal government that acknowledges liberty comes from God and to take that away is to deny God this right of gifting his children and is not taken lightly.

Canada’s newly minted Constitution provides liberty from a different source. That of the Sovereign. Our King, where even if the home country of his kingdom he is not supreme. In his home country the King does not bind his subjects with a constitution. Parliament is sovereign over the Sovereign if that makes sense. Here in Canada though we have chosen to bind our freedoms to those that are doled out by the sovereign body. The King as represented by the Governor General and guided by the Prime Minister give us these rights and freedoms, and they can take them away.

Now here is where the judiciary comes in. Let’s imagine the Government of the day creates a new law, and all is well. Except for the people who do not like the law. And realize that their opportunity to change the law is either stymied by the constitution or by the fact they will likely never have the chance in Parliament for years. What do they do? they challenge the law constitutionaly and the courts now decide the laws validity. They can approve or change it as they deem correct.

When the constitution was being crafted provincial Premiers saw that this document and the courts could take away their right to govern in their home provinces. That they would no longer be supreme in realm of their province, that the federal government would call all the shots. So they wrote in to the constitution the ‘notwithstanding clause’ that gives a provincial government the opportunity to create a law outside of the framework of the constitution, but only in five year increments, allowing for the sovereign of the people to remain supreme in the provinces.

This has rankled successive progressive governments here. The latest of which is now arguing at the Supreme Court for the removal of the ability from the constitution. With the result being of successful that the Courts will now be Sovereign in Canada not the people. Any law created can be subject to judicial scrutiny and may be approved, rejected or changed as the Supreme Court sees fit. And once done only another ruling of the court could change this. The people no longer have the right to determine their fates. An unelected body of nine make all the choices for you.

So if you are one of the ostrich brigade this is wonderful news. I can keep my head in the sand permanently knowing a group of learned judges will be deciding my fate. Perfect, wonderful I am so happy we have such wonderful universities to teach these future sovereigns how a country should run.

Will the courts rule the notwithstanding clause is in violation of the constitution and outlaw it? I guess we have to wait and see as this piece of constitutional business is heard.

If they strike this rule, my fear is this will be the beginning of the end of Canada. Quebec and Alberta certainly will use this as the wedge to gain a yes on a separation from Canada plebiscite. Saskatchewan I would think soon to follow. You take this ruling and add a dollop of property rights in the gun control case making its way through the supremes as well and you have what could be the two most impactful cases for or against personal liberty ever in Canada. Maybe we should hold our breath until we hear the outcomes.