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Comment by SECProto | Hacker News Reader

Note that the notwithstanding clause has never been used by the federal government (the "parliament" you referenced).

It's a shitty clause, and should be removed but it was put in at the behest of certain province(s) as the only way to get the Charter of Rights and Freedoms at all, and has only been used by provincial governments (aka legislatures, though a few provinces do call them "provincial Parliament").

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That said, the Conservative Leader has signalled that he will use it to override the Supreme Court on social issues. Now dropping hints in an election runup is obviously different than actually invoking the NWC, but it demonstrates that our Charter is as robust as our politicians' perceived risk of throwing it out. Having the loophole to preserve some level of provincial autonomy is one thing, but having federal parties signal they will use it is an attack on the institution itself.

What prevents its use by the federal government? If the answer is "nothing", then it's only a matter of time.

Political blowback has been enough to keep the power in check - it significantly raises the visibility of the attempted action whenever it's invoked(1) and historically has been associated with a political hit. It also has a 5-year sunset/renewal requirement, and can only override certain sections.

I think everyone would generally agree a constitution would be stronger without it, but even if 'it's only a matter of time', it's played out as a pretty decent compromise to actually get the charter signed ~45 years earlier than potentially no charter at all.

Canada generally relies on trust and good behaviour more than the US system of checks-and-balances - the most obvious difference is that our Prime Minister plays the role of both US president (head of exec) and congress (technically just the House equivalent, but the senate equivalent is much weaker)

(1) https://www.cbc.ca/news/politics/notwithstanding-clause-doug...

What? There has been absolutely no blowback when Quebec used it. And minimal blowback for all other uses. This is just a weird cope, people don't really care if they use it here. It's sad but true.

There's no doubt that the RoC, especially the West, is not particularly happy with Quebec's liberal use of the notwithstanding clause.

I agree but that's not super actionable. There's no actual consequences. In fact, I don't think said usage has ever been even slightly important in any election for any of the government that has used it.

And since that's usually the main defense for the notwithstanding clause ("using it would lead to too much backlash so self policing is fine!"), then i don't see how it's defensible.

Not that it actually even makes sense anyways. If it won't be used, why have it? If it will be used for issues as trivial as what it has actually been used for up until now, that's super dangerous, so again why even leave it there? And for exceptional situations, we already have a government that's pretty trigger happy with the emergency act that allows for basically anything.

So it leaves us with provincial government using it in non critical situations (which would be handled by the federal government anyways). I guess that's also a "valid" option, and the one we have now, but then it's hard to argue that our constitution isn't completely worthless.

Don't think I agree with your reasoning. I'm also guessing you're from Quebec in your attempt to minimize how cavalierly the CAQ has used this law in recent times to advance it's agenda.

I suspect we will start to see Alberta's provincial government use it more frequently, starting with small items eventually leading up to challenging the equalization act. Saskatchewan may follow suit. This law is likely to become the centerpiece of Canadian politics over the next five years.

Wait what? Where did you get that from? I'm against the clause, why would I minimize Quebec using it? That's the opposite of what I'm trying to do. That we even have such a mechanism in Canada is super bad imo. Quebec hasn't been the only province using it but that's besides the point. The RoC didn't do anything about Quebec misusing it, because they can't do anything about it. Sure there's some outrage but again, what does that do to stop the laws that were passed using that "no constitution lol" card? Absolutely 0.

And if you think I'm in favor of the CAQ out of all things then there's again been a severe misunderstanding. I can't think of any politician that's as low and repulsive as Legault in Canada.

My apologies, that didn't come out clearly in your previous response. Sure, you're right of course, it's not just Quebec, but it's been mostly Quebec [1]. Once we normalize it's use though, it will start to get weaponized for partisan reasons.

[1] https://en.wikipedia.org/wiki/Section_33_of_the_Canadian_Cha....

What does the Quebec legislature care about the RoC?

Keep what in check? The war measures act has been used twice in 60 years!

The trucker fiasco ended only when the Ukraine war substituted the COVID madness

Note that this comment once again diverges from the truth. The war measures act has only been used once in the last 60 years (1970 October Crisis), and was repealed in 1988. You might have (intentionally or unintentionally) confused it with the Emergencies Act, which was used in 2022. It's much more limited, specifically requires governmental action to be in line with the charter, and requires review by parliamentary committee and a public inquiry following any usage.

Nothing. But they dont need to use it.

1. There is effectively one ruling party in Canada (the Liberals) representing the interest of the Eastern industrialists (the Laurentian elite). The supreme court is appointed from this incestuous group and the government typically wins (exception - truckers)

2. They have the War Measures act which the feds have proven very willing to use.

3. Canadians are extremely conforming. Really they are Scandinavians in their attitude.

Before the last 9 years of the Liberals there was 9 years of the Conservatives. Prior to that there were 12 years of Liberals and before that 10 years of Conservatives. Saying there is one ruling party in Canada ignores the majority of Canadian history. Furthermore, since you brought up partisanship, it's worth noting that outside of Quebec, only members of conservative provincial parties have invoked the notwithstanding clause.

The majority of Canadian history? The Liberals have ruled for 70 years in the 20th century, and 15 of the last 24 of the 21st.

Also the beloved and so mourned recently deceased Brian Mulroney, a Conservative, came from.... the same incestuous Laurentian Elite from the YYZ-MTL corridor that all of the PMs except Harper (whom I dislike, but I digress) have hailed from.

In fact, Im old enough to remember Mulroney's government collapsing because of corruption surrounding the same companies, the same industrialists, that discredited Chretien's (whom I liked, for what it's worth), and would have take down Jr's were it not for him firing the justice minister.

As to the not withstanding clause, you're really clinging on to "only separatists and conservatives have used it" without addressing all the reasons the Federal government doesn't need to ever invoke it (power is concentrated in the PM hands in a way unparalleled in the West)?

Look, I've read Trudeau's autobiography. His "memoirs" as he called it. I recall vividly his lament that a flawed constitution is better than none. Flawed? It fails at its most basic task - limiting government power.

> beloved and so mourned recently deceased Brian Mulroney

You made me laugh here (and I don't even know if you're being sarcastic or not! :-) )

> YYZ-MTL corridor that all of the PMs except Harper (whom I dislike, but I digress) have hailed from

Joe Clark was from Alberta and Kim Campbell was from BC, though their stints as PM were too short to matter I guess. Diefenbaker was born in Ontario, but spent his childhood in and his electoral seats were from Saskatchewan. Robert Borden was from and represented Halifax.

I'm not disputing the presence of the "Laurentian Elite" or its (ill, IMO) influence, but proportionally to population the PMs haven't really been all that off regionally, especially as the population west of Ontario has only really grown in the last 30 years, especially in Alberta and BC.

>power is concentrated in the PM hands in a way unparalleled in the West

The UK would like a word. They've been lamenting the "presidentialisation" of the PM there since Thatcher took power.

I forgot about Clark. I liked him.

The UK ruling party has much more effective control over their PM-> see how many times they ditched their PM since the last election. Otherwise, yes, the UK PM is a (semi) elected autocrat.

Yes, yes we all know the history. "We didnt want it! We dont want it! We've never used it" As if 42 years are a long time.

Of course, the feds dont really need the clause. In less than 60 years they've invoked the war measures act twice. The last time the government lost the court case on its suitability.

Canada has always been the land of the free to conform.

While it may be true that the Federal government has not used Section 33, they do readily invoke Section 1. As an easy example, roadside check stops for alcohol screening. This is a violation of section 8 (unreasonable search and seizure) and section 9 (arbitrary detention) but the SCC has determined that they’re saved by section 1 (reasonable in a free and democratic society).

During COVID 6.2 was violated repeatedly (pursue gaining livelihood in any province) when people were not allowed to cross the border between provinces. I don’t know if that ever made it to the SCC but I’m sure it would be saved by section 1 as well.

Note that the two examples you give are generally by provincial authorities as well, not the federal government.

I strongly support section 1, and think both of those examples make our society function better, and agree that they are reasonable in our free and democratic society.

Sorry for the late reply. I... generally do support it as well, although it does make things a fair bit less predictable than e.g. the US constitution does. From what I understand (not a lawyer) the US Supreme Court spends most of its effort on interpreting edge cases while the SCC has a fair bit more latitude in allowing what would appear to be clear prima facie Charter violations.

One of the things that does worry me about Canadian politics in general is that it seems to be a bit of an arms race where we don't always consider the question "what if the other party did what we just did". As an easy example, whether or not you agree with the Liberals' use of the Emergency Act, they've basically set the precedent that it's ok to use in a situation like what we had. The left generally seemed to praise this action, in large part because it was used to shut down a protest that they didn't agree with.

Next time the Conservatives are in power, though, it could very easily be wielded against left-leaning protests (e.g. the railway blockades) and the people who praised it the first time are going to be making shocked Pikachu face.

Whatever I agree or disagree with doesn't matter, rather I'm just concerned that the way the Charter is put together does leave the door open for the government to do things that seem to be prohibited but can be surprisingly overridden. Sometimes it'll be a government you agree with and sometimes not.

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