Prime Minister Paul Martin insists that Parliament should never use the notwithstanding clause of the Constitution to prevent the Supreme Court of Canada from striking down a law that allegedly violates the Canadian Charter of Rights and Freedoms. During last spring’s federal election, he argued: “We have got to ensure that minority rights are protected when challenged by the majority. The only way you can do this is to have a Charter of Rights which is ultimately interpreted by the Supreme Court of Canada.”
After a lengthy debate in the early 1980s, a majority of elected Canadian legislators ratified the Charter. Yet Martin insists that a majority of elected legislators now has no right to determine how the abstract and general terms of the Charter apply to the concrete and particular provisions of the laws governing Canadians. Where is the logic in this position?
Martin’s predecessor, Jean Chretien, also renounced use of the notwithstanding clause of the Charter, yet he originally defended the provision. Speaking in the House of Commons on Nov. 20, 1981, he said: “The purpose of an override clause is to provide the flexibility that is required to ensure that legislatures, rather than judges, have the final say on important matters of public policy.”
Former prime minister Pierre Trudeau took much the same view. Despite having initially opposed inclusion of the notwithstanding clause in the Charter, he said in a radio interview on Nov. 24, 1981: “I don’t fear the notwithstanding clause very much. It is a way that the legislatures, federal and provincial, have of ensuring that the last word is held by the elected representatives of the people, rather than by the courts.”
Furthermore, in a confidential letter to Catholic Cardinal Emmett Carter of Toronto on Dec. 21, 1981, Trudeau insisted that Parliament could make use of the notwithstanding clause. He wrote: “Should a court decide at some future date that Sections 7 (the right of women to security of the person) or 15 (equality rights) establish a right to abortion on demand, Parliament will continue to legislate on the matter by overriding the court’s decision and the specific Charter right.”
Alas, Trudeau’s assurance proved worthless. In the 1988 Morgentaler case, the Supreme Court of Canada struck down the restrictions on abortion in the Criminal Code for supposedly violating the Charter. Yet, to this day, Parliament has failed to enact any law – with or without the notwithstanding clause – to end this scandal of judicially imposed abortion-on-demand in Canada.
That’s fine with Martin. During the national leaders’ debate on June 16, he challenged Stephen Harper: “Would you use the notwithstanding clause on the case of a woman’s right to choose? Will you protect it?” Harper parried: “Let me talk about an example where the notwithstanding clause might be appropriate. We’ve had repeated court decisions limiting our ability to stop child pornography. I will do that if I have to protect the rights of children.”
Martin rejoined: “The government of Canada has never used the notwithstanding clause, and if you’re prepared to use the notwithstanding clause, then what you’re saying essentially is that in fact, minority rights can be subjected to the will of the majority.” It matters not to Martin that the fathers of Confederation designed Canada as a parliamentary democracy in which the majority could be counted upon to uphold legitimate minority rights.
On the role of Parliament in defining rights, Martin is inconsistent. He has pledged: “Never, never will I allow the rights of women to be removed by going back to the past. I believe that the situation in Canada is a free choice for women. They have to decide for themselves.”
What, then, would Martin do if the Supreme Court of Canada were to summon up the common decency to outlaw at least the horrors of partial-birth abortion? He would either have to allow the courts to ban this barbaric procedure or invoke the notwithstanding clause of the Constitution to override the court’s decision. Martin cannot have it both ways – he cannot promise to forgo all use of the notwithstanding clause, while pledging never to allow the courts to constrict the unfettered freedom of a Canadian woman to choose to kill her baby in the womb.
Martin is a Catholic. In his private life, he upholds the teachings of the Catholic church on abortion, gay “marriage” and other contested social issues. Nonetheless, as a legislator, he takes the view that a right is a right, only if the Supreme Court of Canada says so. Thus for years, Martin solemnly pledged to uphold marriage as the voluntary union for life of one man and one woman, but shortly after the Ontario Court of Appeal reformulated the common-law definition of marriage in last year’s Halpern case as “the voluntary union for life of two persons to the exclusion of all others,” Martin reversed course. He came out in favour of gay “marriage,” saying: “I am a practising Catholic and I have responsibilities as a legislator and those responsibilities must take in a wider perspective.”
That’s poppycock. It’s a sophistical rationale that contradicts the insistent teachings of the Catholic church on the moral responsibility of legislators to uphold the natural family. If the Supreme Court were to sanction polygamy or incest, would Martin still defer to the court? Would Martin use the notwithstanding clause if the courts were to rule that churches must perform gay “marriages”? When that last question was put to him in an interview on CBC radio last Dec. 18, he replied: “Oh yes, I would. I would look at it if it was a question of affirming a right.”
Apparently, then, even Martin agrees that there are some occasions when elected representatives of the people should invoke their constitutional authority to override an egregious judicial interpretation of the Charter. It’s only as a matter of political expediency, not constitutional principle, that he has ruled out use of the notwithstanding clause to override such court-contrived abominations as legalized abortion-on-demand and same-sex “marriage.”
Rory Leishman is a columnist for both the London Free Press and Catholic Insight and a frequent contributor to The Interim. On Sept. 2, he joined The Interim’s editorial advisory board.
