Reopening the Constitution just to stay in office is like pulling a dead rabbit out of a hat, says ANTHONY WESTELL
Any lingering doubts there may have been about Paul Martin's poor political instincts -- some might say stupidity, but that would be rude -- were surely removed during the party leaders' English-language debate on Monday when the Prime Minister suddenly announced that a new Liberal government would move at once to reopen the constitutional package negotiated with such difficulty a quarter of a century ago to remove the so-called notwithstanding clause as it applies to the federal government. If he thought he was pulling a vote-winning rabbit out of the hat, he probably will find that it is dead and smelly -- a vote-losing trick.
When politicians start talking about the Constitution, most Canadians stop listening. It's a foreign language and seemingly unrelated to their daily concerns. Talk about jobs or prices or the housing market and they will listen. Talk about the notwithstanding clause and, at best, they may have a vague notion of what it is.
In reality, it was the essential compromise that made it possible for Pierre Trudeau and nine of the 10 premiers -- Quebec was the holdout -- to approve the package "patriating" from Britain the basic constitution, the BNA Act, by which the British Parliament had established Confederation, and adding the Charter of Rights and Freedoms.
Up to that point, Canada had been a parliamentary democracy -- Parliament was the supreme authority and the courts were deferential, except on rare occasions. The Charter, however, set out rights that were to be beyond the power of Parliament to change. In the first draft, the Supreme Court of Canada was to have absolute authority to define those rights in practice.
The court, for example, could interpret the Charter to guarantee the right to abortion -- although the word never appears in the document -- and there was nothing Parliament could have done about it, even had it wished to do so.
Mr. Trudeau, the principal author of the Charter, was a political theorist and had studied in the United States and France, where this form of government prevails, and he was happy to make a fundamental change in the Canadian system. But several of the premiers raised in the British parliamentary tradition were uneasy to the point at which they would not approve the package. The compromise was to add a clause providing that Parliament and legislatures could adopt a special procedure that would override the Supreme Court.
The safeguard was the Charter's popularity: Governments would dare to invoke the procedure to override it only when confident of popular approval. That has proved to be correct: Parliament has never sought to override the Charter. When Conservative Leader Stephen Harper talked of reversing the law permitting gay marriage, he was warned that he would have to use the dreaded override power.
It was this issue that prompted Mr. Martin to announce the new Liberal policy, and to challenge Mr. Harper to join him in abolishing the federal right to override. He hoped to cast himself as the champion of the Charter -- the Charter pure and simple, with no political override -- and Mr. Harper as the villain who would override civil rights.
Mr. Harper wisely said he was happy with the original compromise, which placed Canada somewhere between the Westminster and Washington models -- just where most Canadians want to be. Certainly, they do not want to see their federal government focused on a constitutional issue irrelevant to most of them.
If they care to think about it at all, they will know that Mr. Martin, even if he is returned to office on Jan. 23, would face a long fight in the House of Commons that he probably could not win unless he had a majority -- an increasingly unlikely prospect. It does appear that Parliament could amend the Constitution to surrender its override power without the consent of the provinces, but there might be a protracted dispute about that.
And all for what? "I think governance says that the courts shouldn't be overturned by politicians," said Mr. Martin. Why not? In a democracy, it is politicians who make policy, not judges.
Anthony Westell has been reporting and commenting on Canadian politics for more than 40 years.