[Byfield] Why the notwithstanding clause will survive, nothwithstanding the Left

[Byfield] Why the notwithstanding clause will survive, nothwithstanding the Left

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The clause reasserts the British formula, but Canada’s Left champions ‘the American Way’

[Ted Byfield Blog] One of Canada’s more interesting left-wing commentators bade a public farewell last week to what has become a much pilloried institution in Canadian constitutional government. “The era of constitutional restraint,” pronounced the columnist and white collar union guru David Climenhaga, “is over.” He was referring to our constitution’s so-called “notwithstanding clause,” a provision uniquely Canadian, which was jammed at the last minute into our Constitution at the insistence of Alberta Premier Peter Lougheed and his attorney-general Merv Leitch. Its original intent was to prevent the big provinces from ruthlessly exploiting the little ones. More lately, however, threats have been made to use it for other purposes which intrigue the Right and horrify the Left.

VIDEO: [CBC News] Former premiers Christy Clark (British Columbia), Brad Wall (Saskatchewan) and Jean Charest (Quebec) weigh in on Ontario Premier Doug Ford’s decision to invoke the notwithstanding clause to reduce Toronto’s City Council from 47 councillors to 25.

The Left, in fact, is baffled by the clause and can’t figure out what to do about it. This was amusingly evidenced in two recent pronouncements by Mr. Climenhaga In the first, he declares in an article that the day of the clause is “over,” with the implication that it is dead, gone, never to be heard of again. “Get used to this,” he advises. But then in the same article, he goes on to present the clause as suddenly springing back to life, and he paints at length the grave damage it is threatening to inflict on Canada’s increasingly socialized paradise.

Making the clause very dangerous to the Left is the fact that its current invocation is not by one of the smaller provinces that it was initially designed to protect, but by Ontario, biggest and mightiest of them all. The new Ontario government of Doug Ford has passed a law reducing the Toronto City Council from 47 to 25 members. A judge voided the law as a violation of electoral rights, and Ford has called the Legislature into an emergency session to assert the “notwithstanding clause” and void the judge’s ruling.

Now if it had been some cowboy province like Alberta that had invoked the clause, that could be handled. But this is Canada, where Ontario does things right. Ontario denotes responsibility, respectability, uprightness, dependability. soundness. And here is the point. By invoking the clause, Ontario subtly confers all these qualities on its usage. Meanwhile the Left has spent the last 30 or more years almost frantically striving to make sure that the clause is regarded as fundamentally preposterous. And in this, the Left has up to now succeeded, or thought it had.. It assumed it had managed to somehow portray the clause as a weapon of authoritarian despotism, which must never, ever, ever be invoked except perhaps in the most critically conceivable circumstances. Its use represents “the death of democracy,” writes one commentator.

How giving elected politicians the right to overrule politically appointed judges represents a disastrous defeat for democracy is something the Left never quite explains. Usually, their faces cloud over, the eyes darken, and there’s a trace of trembling as they intone: “Do you not know that majorities impose oppression?” Is the suggestion, one wonders, that, given the chance, minorities do not impose oppression? What about all these current gay rights cases, in which people are ordered to think, act, teach and approve of forms of conduct they believe plainly immoral? Would not all this represent oppression by a minority? I think so..

This article continues at [Ted Byfield Blog] Why the notwithstanding clause will survive, nothwithstanding the Left

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  1. The Notwithstanding Clause represents what stands between the tyranny of the federal government and the will of provincial representation. To eliminate this protection, insisted on by Premier Peter Lougheed, would be a travesty of justice in Canada. The Left only invoke and press their position when it is convenient for them. In these challenging times, we may have to utilize the Clause more than we have ever done in the past. The other factor is one of “judicial humility”. We have been transported to a period in our history where even judicial precedent is going by the way. Justice Brian Dickson, making the statement on CBC TV, “We make the Law.”, communicated, arguably, the beginning of the end of democracy in Canada, and this was early in his judicial “service” on the Supreme Court of Canada bench. As Chief Justice, he and others carried out the plan that has led to devastating results for Canadians in many ways, judicial, political and social.

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