Colby Cosh: Liberals put Canada in danger at Supreme Court |
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Colby Cosh: Liberals put Canada in danger at Supreme Court
Ottawa wants every use of Section 33 to require court approval, a threat to the rule of law
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Before the courtroom fight over Quebec’s Bill 21 and the “notwithstanding clause” in the Charter of Rights concludes at the Supreme Court, I wanted to call attention to what I think is the most important constitutional issue at stake this week. The federal government is hoping to give new capabilities to the Supreme Court and to modify the notwithstanding clause in Charter Section 33. This proviso allows governments to pass laws even when they infringe Charter-guaranteed personal liberties in a way that would not be allowed under Section 1 of the document, which explicitly recognizes that rights are subject to “reasonable limits… in a free and democratic society.”
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In that last sentence, “would not be allowed” means “would not be allowed by the courts, and in particular the Supreme Court itself.” The axiom of the Charter, for better or worse, is that the rights therein are subject to democratically decided political limitations. Section 33, negotiated by the provinces, provides a guarantee that legislatures retain the final say in determining those limits — a last-resort veto over the courts. But the people are also given an even higher super-veto. The effect of a Sec. 33........