A bomb in the Canadian constitution is real, and Canada is not alone. Any written constitution is almost certain to have errors, omissions, vague statements and potentially damaging clauses. The longer the constitution has been in existence the more significant those problems become because cultures, meanings of words and phrases, and political expediencies change with time. In addition, the longer the life of the words, the longer constitutional lawyers have to interpret, and misinterpret, their meanings.
These problems usually do not become apparent until some politician decides that his, or her, desires contradict the accepted interpretation of the written word. When that happens, that politician’s first instinct is to convince themselves that they are right and everyone else is wrong (That usually takes about 30 seconds or less). The bomb is activated.
Their second instinct, which they implement almost immediately, is to employ an army of lawyers to produce an interpretation of the constitution that fits their desires, regardless of whether that interpretation is ethical, or good for the people and the country. AND, the higher ranking the politician, the more outrageous can be the desire. I am reminded of the old adage “power corrupts, and absolute power corrupts absolutely.” The intended target of the bomb is identified.
If that sounds like the introduction to another rant about Donald Trump, it certainly could be but, in this particular case, it refers to a provincial governor of Canada.
The bomb in the Canadian constitution that the governor of Ontario recently used to violate the collective bargaining rights of certain unions was the “notwithstanding clause” – Section 33 of Canada’s Charter of Rights and Freedoms. That section allows Canada’s legislatures to override basic rights for up to five years, and to keep renewing that measure. They may suspend freedoms of religion and speech; suspend protection against torture; suspend rights against unreasonable searches and seizures; muzzle the press; suspend rights against arbitrary arrest; and shut down houses of worship.
You may well ask how such undemocratic powers ever ended up in a Bill of Rights that was only finalized in 1982. It was simply because provincial governors at that time wanted to make sure the Canadian courts couldn’t take away their autonomy. I sincerely doubt that those governors ever imagined that their demand for inclusion of the “notwithstanding clause” could result in the suspension of most democratic rights, but they did. Therein lies the danger of “wording” in documents as important as constitutions.
Politicians almost always forget that any legislation they pass applies to everyone, and not just their particular pet project. The result may well be good for the entity for which the legislation was written, but it could well be highly detrimental to other entities outside that limited group. Myopic legislation, or legislators would be a good description. Equally, writers of constitutions cannot possibly be aware of what armies of focused lawyers can do to the original intent of their words. So we have a dilemma.
It’s obvious that unethical, corrupt and autocratic politicians can always bend the rules to their advantage, given enough lawyers, and even ones with good intentions in mind can have their efforts twisted and corrupted by future politicians with big enough armies of lawyers.
I am tempted to quote Benjamin Franklin who, when asked what would be his first step in creating a new country, said, “I would first shoot all the lawyers”.
The Ontario provincial governor invoked the “notwithstanding clause” to impose a very low settlement on a labor dispute – he eventually had to back down because of serious street demonstrations against his imposition but, legally, he was within his rights. The bomb exploded.
The Premier of Quebec recently used the same clause to ban public officials from wearing religious symbols, and banned the use of English in courts and public services. He even went so far as to establish the Office Québécois de la Langua Française, a sort of language police force (sounds a bit like the Iranian religious police). Other provincial governors are also experimenting with the unethical, but legal, use of the “notwithstanding clause”.
Brian Mulroney, the prime minister of Canada from 1984 to 1993, said that Section 33 meant Canada’s Bill of Rights was “not worth the paper it is written on.” His words deserve contemplation and action.
Clauses such as Canada’s “notwithstanding” should be eliminated from public documents, especially constitutions. It is impossible to anticipate what armies of lawyers can do in the hands of unscrupulous politicians, but when those politicians start trying to misinterpret the intent of the legislation using such clauses, they should be eliminated immediately.
AND this applies to all countries, not just Canada. Donald Trump and the United States constitution are very poignant and recent examples of such new and novel abuses of constitutional wording.
