It’s been much written by now — over twelve hours later — that Paul Martin threw a hail mary in last night’s debate by promising to amend the charter.

What a stupid, stupid thing to do for one major reason: Quebec.

Yes, Quebec retains its role as the perennial excuse in Canadian politics.

What’s Wrong with Section 33?

Quite a bit in principle, and not very much in practice. The notwithstanding clause, to make a very long story short, was added during last minute negotiations between the Trudeau government (including Jean Chretien) and the provinces to get the constitution passed. These rushed negotiations were triggered by Quebec Premier Rene Levesque’s challenge to Trudeau to put the constitution to a vote. Trudeau, and the other premiers, knew the vote would end in a victory for the federal government, and the provinces would be left in the dark.

Here’s a longer version of the story.

Section 33 means, in essence, that the government (any Canadian government) can pass any legislation that might contradict the rights guaranteed by the charter. Doing so requires that the legislation have an effective period of less than 5 years, therefore requiring a regular review if the intent is to have the legislation valid for perpetuity.

Is Section 33 Appropriate?

Section 33 is and was controversial, but has its roots in the view that Canada is a parliamentary democracy in the British Tradition, with the Parliament as the final authority and not the courts. This is quite distinct from the American Republic, which clearly defines the courts as the final authority on all matters within its field of responsibility.

It’s appropriateness is debateable: many feel that Parliament (which is, after all, elected) should be supreme as an expression of the people’s will. Others who feel that human rights are basic and fundamental (a category into which I would fall, by most definitions) feel that the judiciary — not subject to the fickle whims of the electorate — is the most appropriate venue for final review.

Both viewpoints have proponents and validity, but it doesn’t matter here — my problem with this has little to do with this argument.

Has it been used?

Section 33 hasn’t been used very much. Three times, in fact.

Quebec’s controversial sign law is the most notable use, requiring French on signs to be featured first and at least as prominently as English.

The other uses were far less cotroversial. Saskatchewan invoked it relative to back to work legislation. Again in Quebec to pass Bill 178 by the Quebec National Assembly following the 15 December 1988 Supreme Court of Canada decisions in Chaussure Brown’s and in Devine.

Back to the Point: What’s Wrong With This Amendment

Hypothetically, and in my view, the federal government should never use the powers it has under Section 33. It should be used only by provinces in cases where federal legislation may contradict provincial needs or authority.

The problems isn’t whether Mr. Martin’s commitment is right or wrong, it’s that it’s not realistically achieveable. Constitutional amendments are quite difficult to pass and the amending formula gives both Quebec and Ontario a tremendous amount of power.

Still, if the goal is noble enough pursuing an amendment could be necessary.

If it weren’t for the fact that this will destroy the country.

Quebec will, of course, leverage its power. With Mr. Duceppe as the elected leader of the Bloc Quebecois and Mr. Charest as the unpopular premier, Quebec currently suffers from a schizophrenic political personality. Duceppe a staunch separatist will use this opportunity to re-open Constitutional negotiations completely; Mr. Charest is a staunch federalist, and may play along with Martin’s plan but lose all of his extremely limited political capital in the process.

The vote would be a provincial one, and Mr. Charest’s majority government could pass such an amendment with ease. In doing so, two things would happen.

Charest would guarantee a loss in the next election. The Charest government is extremely unpopular as it is, and this would cement this due to its unpopularity with French speaking Quebeckers.

The myth of Quebec’s exclusion from the costitution will be renewed. I call this a myth based on my interpretation of events. In Quebec, the notion that Quebec was betrayed in negotiations plays well. The other provinces turned their backs on Levesque, the view goes.

The reality is that Levesque’s suggestion that Trudeau hold a referendum was out of the blue and unplanned, and betrayed the other nine provinces. With few other options and a weakened negotiating position, the other provinces assembled a deal.

Paul Martin’s Fatal Mistake

Constitutions are living, breathing documents. They are meant to change and evolve over time. While the view that Section 33 has run its course and is no longer needed may be true, our constitution is still very young. The potential damage that could be caused by reopening negotiations while a strong separatist mandate is in power federally far outweighs any potential gain from the amendment effort. The clause does little harm as it remains completely unused.

Mr. Martin has, in fact, promised to use it himself making this promise deeply hypocritical. It has little basis in reality, and will serve to do nothing other than rip at a tear in the fabric of our nation, perhaps permanetly.

I firmly believe Canadians aren’t foolish enough to fall for it. I firmly believe that if they choose to vote Liberal — despite the stealing, the lying, the corruption and the desperation — it will not be because of this.

I firmly believe in Canada as a whole, and want to keep Quebec in it. This does nothing to achieve that goal and may, in fact, push the raft even further way.

Posted by skooter at 6:23 AM This entry is filed under Politics.
This entry is tagged: Federal Election 2006, Paul Martin