During the second English-language debate, Paul Martin stated his intention to remove the notwithstanding clause, in regards to federal use, from the Charter of Rights and Freedoms. The clause allows government to enact legislation that violates the Charter, but the law must be reviewed after a five-year period.
In the days following the debate, I was surprised at how much attention Mr. Martin’s comment received, and shocked at how strongly many opposed his intent to remove the clause. I was even more shocked at the reasons for this opposition, in particular the claim that removing the clause would undermine our democracy. I attribute this point of view to a general misunderstanding about the role of constitutions and judicial review, as well as naive notions about democracy and the value of majority opinion.
A commonly cited reason for maintaining the clause is that it keeps power away from unelected judges. This seems to be made based on a simple and false assumption that “unelected” is equivalent to “undemocratic.” In reality, sometimes power needs to be vested in officials who are not elected so that they can make rational and fair decisions based on law and not majority opinion. This is why judicial review helps to uphold, and not undermine, democracy.
Where majority opinion may be expressed is in the Charter itself, which was created by and can be amended by those we elect. Once created and made law however, the Charter must be applied fairly and universally, and sometimes this application is contrary to majority opinion. This is particularly because the Charter protects rights, and most frequently, minority rights.
For example, a Supreme Court reference case concluded that same-sex marriage could not be prohibited under the Charter. If it were a matter of public opinion, it is possible that same-sex marriage may have never been legalized, and it was feared that the notwithstanding clause might be invoked to allow such an injustice to be done.
Furthermore, politicians were reluctant to act on the issue without the legitimacy provided by the Supreme Court, because politicians are, of course, at the mercy of the majority, whether or not majority opinion is correct, rational, or fair. Judges interpret laws created by elected officials, provide a rational and thorough explanation for their decisions, and can protect our rights without fear of upsetting voters.
The fact that the majority has a voice is one of democracy’s best features, and ironically, can be one of its flaws. The majority is not always right, and when they are not they should not infringe upon the rights of anyone else. We want to maintain majority rule as well as equality, and sometimes the former does not accommodate the latter.
This is why we create documents like the Charter of Rights and Freedoms, and this is why they must have primacy. To say that the Charter protects rights, and then to include a clause to allow the violation of those rights, is more in contrast with notions of democracy than allowing judges to rule based on laws that are created by democratically elected politicians in the first place.
