Question about the Notwithstandning Clause

[1967100]

Is it true that if you become Prime Minister and activate the Notwithstanding clause, you can virtually act like Hitler in the 1940's (commit genocide, persecute citizens, stay in power for whenever you want etc.) without becing prosecuted in the International Court?

[geoffrey]

Is it true that if you become Prime Minister and activate the Notwithstanding clause, you can virtually act like Hitler in the 1940's (commit genocide, persecute citizens, stay in power for whenever you want etc.) without becing prosecuted in the International Court?

Not at all.

[jbg]

I would hope (but am not sure) that the common law, unwritten "British constitution" that was passed on as part of being a British colony survives to prevent that result.

[Charles Anthony]

The nature of this opening thread is inflamatory and absurd.

without becing prosecuted in the International Court?

No. The International Court can still get you -- unless of course you manage to file a report to the appropriate Administration that deals with such matters.

[bradco]

when did the notwithstanding clause begin to enable PM's to suspend elections???? Im pretty sure a genocidal maniac wouldnt get reelected in Canada. In fact, the use of the notwithstanding clause for anything remotely unjustified would be political suicide.

Interesting enough the American president could commit genocide and not face charges at the International Criminal Court, seeing that they refuse to sign on.

[jbg]

when did the notwithstanding clause begin to enable PM's to suspend elections???? Im pretty sure a genocidal maniac wouldnt get reelected in Canada. In fact, the use of the notwithstanding clause for anything remotely unjustified would be political suicide.

In theory, another clause, 4(2) can suspend elections:

(2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be.

Interesting enough the American president could commit genocide and not face charges at the International Criminal Court, seeing that they refuse to sign on.

I don't see what subjecting the US, a country with a functioning judiciary, to "justice" landled by the kinds of countries on the UN's "Human Rights Committtee") would contribute to anything good. The US will never be bound up, Lilliuput style.

[Figleaf]

Let's be precise about this. The 'notwithstanding' clause says (my emphasis added):

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

Operation of exception

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

Five year limitation

(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

Re-enactment

(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

Five year limitation

(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

The point being, that the notwithstanding clause can only except a narrow range of constititional provisions -- it cannot be used to grant carte blanche powers to the government.

[FTA Lawyer]

Let's be precise about this. The 'notwithstanding' clause says (my emphasis added):

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

...

The point being, that the notwithstanding clause can only except a narrow range of constititional provisions -- it cannot be used to grant carte blanche powers to the government.

I would hardly call it a narrow range...freedom of conscience, religion, thought, belief, opinion, expression, the press and other media, peaceful assembly, association, life, liberty and security of the person, freedom from unreasonable search and seizure, arbitrary detention or imprisonment, the right to be informed of reasons for arrest or detention, to retain and instruct counsel, and to have the validity of detention determined by habeas corpus, the right to be informed of charges against you, to a trial in a reasonable time, not to be compelled to testify against yourself, to the presumption of innocence, to a fair trial, to reasonable bail, to trial by jury if maximum of 5 years in jail, not to be convicted of something that is not an offence, not to be subjected to double jeopardy, to the benefit of a lesser punishment if the law is amended after conviction but before sentence, the right not to be subjected to cruel and unusual punishment, the right not to have incriminating evidence in one proceeding used against you in another, the right to an interpreter for proceedings if you do not understand the language of the proceedings, the right to equality before and under the law and equal protection and benefit of law.

Technically, any of the above can lawfully be taken away for 5-year intervals by a government (Fed. or Prov.) including the "notwithstanding clause" in legislation.

That being said, I am no expert on the jurisdiction of the ICJ, but it seems unlikely they would have no way of attempting to stop a tyrant from ruling Canada qua Hitler. Furthermore, how long do you really think it would take for Parliament Hill to be surrounded by soldiers from NATO, NORAD or just the plain ol' USofA to displace anyone who even attempted to use s. 33 this way?

The OP is a rather silly (although technically possible) proposition.

FTA

[Remiel]

Besides, any resolution to make Canada a dictatorship depends on the people and the military to allow it. Canadians allowing a dictatorship in this country is a much more disturbing idea than a Prime Minister trying to become a dictator.

[Figleaf]

Let's be precise about this. The 'notwithstanding' clause says (my emphasis added):

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

...

The point being, that the notwithstanding clause can only except a narrow range of constititional provisions -- it cannot be used to grant carte blanche powers to the government.

I would hardly call it a narrow range...freedom of conscience, religion, thought, belief, opinion, expression, the press and other media, peaceful assembly, association, life, liberty and security of the person, freedom from unreasonable search and seizure, arbitrary detention or imprisonment, the right to be informed of reasons for arrest or detention, to retain and instruct counsel, and to have the validity of detention determined by habeas corpus, the right to be informed of charges against you, to a trial in a reasonable time, not to be compelled to testify against yourself, to the presumption of innocence, to a fair trial, to reasonable bail, to trial by jury if maximum of 5 years in jail, not to be convicted of something that is not an offence, not to be subjected to double jeopardy, to the benefit of a lesser punishment if the law is amended after conviction but before sentence, the right not to be subjected to cruel and unusual punishment, the right not to have incriminating evidence in one proceeding used against you in another, the right to an interpreter for proceedings if you do not understand the language of the proceedings, the right to equality before and under the law and equal protection and benefit of law.

Technically, any of the above can lawfully be taken away for 5-year intervals by a government (Fed. or Prov.) including the "notwithstanding clause" in legislation.

I'll grant you that's important stuff, but constitutionally it is narrow. The Charter is a small element of the constitution and Canada ran as a liberal democracy for many years before it was adopted. The notwithstanding clause can't override the division of powers, for example. And in particular relation to a question raised earlier, it can't overrule the 5 year parliamentary cycle. Another provision can, but that provision is subject to judicial review (no notwithstanding).

[g_bambino]

Is it true that if you become Prime Minister and activate the Notwithstanding clause, you can virtually act like Hitler in the 1940's (commit genocide, persecute citizens, stay in power for whenever you want etc.) without becing prosecuted in the International Court?

I understood the Notwithstanding Clause to be the only thing left that allows for the supremacy of Parliament; otherwise, Canada would be fully governed by the courts, not the government.

As for a prime minister attempting to use it to create unconstitutional laws, he'd first have to get Royal Assent granted to them before they can come into effect, meaning he could, and probably would, be thwarted by the Governor General or the Queen. (It happened in 1937 when Lieutenant-Governor of Alberta, John C. Bowen, refused to grant Royal Assent to three bills passed by William Aberhart's Social Credit government that limited freedom of the press.) If the PM were to ignore existing laws, ie. the limit on Parliament's term, he would again be blocked by the Governor General as the power to call elections lies in the vice-regal's hands, not the PM's.

A tyrannical GG can be removed by the Queen, and a tyrannical Monarch can be removed by Parliament.

This is, of course, all assuming that nobody assembles a militia to back up their actions.

[FTA Lawyer]

I'll grant you that's important stuff, but constitutionally it is narrow. The Charter is a small element of the constitution and Canada ran as a liberal democracy for many years before it was adopted. The notwithstanding clause can't override the division of powers, for example. And in particular relation to a question raised earlier, it can't overrule the 5 year parliamentary cycle. Another provision can, but that provision is subject to judicial review (no notwithstanding).

Yes, Canada was a liberal democracy pre-Charter...the fact is that the Charter is simply an elevation of many of Canada's common-law principles to the status of "supreme law"...not much of the substance of the Charter was new to Canadian law in 1982.

No, the notwithstanding clause of the Charter cannot amend the Constitution that pre-dates it...and if that's what you mean by "constitutionally narrow", well, then, okay. I still somewhat disagree with your characterization of the clause because of the pervasiveness of the rights and freedoms that are guaranteed by ss. 7-15 of the Charter.

The Charter gives no powers to government, they in fact get power as you've noted from the "division of powers" sections (91 and 92) of the Constitution Act (used to be BNA Act). BUT, the Charter does dictate the manner in which the government can exercise its powers. By virtue of s. 52 of the Constitution Act, any law that contradicts the Charter is of no force or effect.

So...the notwithstanding clause allows a government to pass a law affecting any of the items I listed before that would otherwise be of no force or effect. Why I say this is not "constitutionally narrow" is that almost every head of power under ss. 91 and 92, when exercised, will have an impact on the "life liberty and security of the person" for example.

We're sort-of talking about different elements, so in a way we are not really disagreeing. I would clearly agree that the notwithstanding clause is "limited" in its application (i.e. not permissive of a full-scale erasing of all Canadian law) I just don't see it as "narrow" becuase of all of the things you could do with it that would be illegal without it.

Going back to the OP, an "evil genius" using the notwithstanding clause couldn't legally do anything he wanted but he could (in strict theory only) raise a hell of a mess in terms of human rights.

FTA

[FTA Lawyer]

As for a prime minister attempting to use it to create unconstitutional laws, he'd first have to get Royal Assent granted to them before they can come into effect, meaning he could, and probably would, be thwarted by the Governor General or the Queen.

Excellent point.

[rbacon]

Surely this is a joke....Why would he need the notwithstanding clause....The PM is elected by on average 30,000 voters....He already appoints your Head of State the GG..Who he controls and uses to control all of the military power...........He appoints 100% of the Senate which is 30% of the Government....He appoints all of the Judges across the whole land both high and low....He appoints the SCOC Judges.....He appoints all of the Privy Council which make law and spend taxdollars via Orders in Council.....He appoints all of the Heads of States of all of the Provinces.....He appoints the Heads of Hundreds of Crown Corps.....Did I miss anyone....Oh Yah he whips the elected MP's until they do exactly as he says, not what they promised to do for you beofre they were elected.....Surely you jest that he needs the NWC to usurp power......

[FTA Lawyer]

Surely this is a joke....Why would he need the notwithstanding clause....The PM is elected by on average 30,000 voters....He already appoints your Head of State the GG..Who he controls and uses to control all of the military power...........He appoints 100% of the Senate which is 30% of the Government....He appoints all of the Judges across the whole land both high and low....He appoints the SCOC Judges.....He appoints all of the Privy Council which make law and spend taxdollars via Orders in Council.....He appoints all of the Heads of States of all of the Provinces.....He appoints the Heads of Hundreds of Crown Corps.....Did I miss anyone....Oh Yah he whips the elected MP's until they do exactly as he says, not what they promised to do for you beofre they were elected.....Surely you jest that he needs the NWC to usurp power......

It would take an aspiring tyrannical leader a quarter of a century to replace all of these positions with his tyrannical henchmen. Your point is quite deflated by this reality. Pretend Harper is that aspiring tyrannical leader...how many of the list of current appointees above are his and how many belong to Martin and Cretien?

You can't just come in and totally clear the board of senators, judges, Lieutenant Gov.'s, etc. etc. and appoint new ones.

FTA

[Wilber]

No law is worth the paper it is written on if you don't have the ability or will to enforce it. Most of all, international law.

[jbg]

Interesting enough the American president could commit genocide and not face charges at the International Criminal Court, seeing that they refuse to sign on.

American Presidents also can't unilaterally pass legislation. In Canada a majority PM can force pretty much any legislation he wants through the HOC, subject only to a leadership revolt, the Senate and Royal Assent. In the U.S. a President cannot force anything he wants through the Senate and the House.

[Smallc]

American Presidents also can't unilaterally pass legislation. In Canada a majority PM can force pretty much any legislation he wants through the HOC,

That's just not true at all. The party wouldn't allow them to do something crazy, and the Constitution would (hopefully) handle it if they did.

[jbg]

That's just not true at all. The party wouldn't allow them to do something crazy, and the Constitution would (hopefully) handle it if they did.

Then how did OLA and the "restructuring" of the military pass?

[Smallc]

Then how did OLA and the "restructuring" of the military pass?

So because you think something was a bad idea, that automatically means all members of the House of Commons thought so as well....and ignored their thoughts because the Prime Minister wanted them to.

[August1991]

That's just not true at all. The party wouldn't allow them to do something crazy, and the Constitution would (hopefully) handle it if they did.

To a degree, I tend to agree with you smallc.

We didn't have a Charter of Rights (and hence didn't have a notwithstanding clause) prior to 1982. Did Canada become a police state prior to 1982? Well, we sort of did. The federal government imprisoned hundreds of people without cause in 1970. It interned thousands of Canadians of Japanese and German origin in the 1940s. Various provincial governments have acted against various minorities at various times.

Nevertheless, our existing constitution and parliamentary procedures were a good bulwark against tyranny.

The Charter of Rights is one additional if weak protection of the individual against the power of the State (against the oppression of the majority). The notwithstanding clause weakens the protection of the Charter but Trudeau deemed a Charter with the notwithstanding clause was better than no Charter at all.

I think that it is correct to say that since the Charter restricts the reach of the State, it has imposed limits on government actions since its inception. As a result, Canadians are arguably more free now than in 1980.

Edited May 26, 2010 by August1991

[August1991]

American Presidents also can't unilaterally pass legislation. In Canada a majority PM can force pretty much any legislation he wants through the HOC, subject only to a leadership revolt, the Senate and Royal Assent. In the U.S. a President cannot force anything he wants through the Senate and the House.

The writers of the US Constitution were well familiar with the "unwritten" British constitution. But they had to write a document after a revolution since establishing precedent over time was not an option.

The "British constitution" in effect solves the same problem as the American and French constitutions. There are various checks and balances so that no one person can usurp power and become a tyrant. (For starters, both Canada and the US are federal states where separate jurisdictions are sovereign in specific fields.)

In my mind, the most critical feature of a democratic constitution is the method to hand over power without death or cronyism. The US and French constitutions go into great detail about this. The British (and by extension Canadian) constitutions take an entirely different path. (The Head of State is permanent, or determined by birth in the UK, and names the Head of Government.)

-----

In this sense, the weak point of Canada's Constitution is the naming of the Governor-General (Head of State). Hitler became a tyrant when as Chancellor (PM), he named himself President (Head of State). The Canadian constitution as it now stands would also permit such. That is, nothing would formally prevent a sitting PM to name herself/himself as Governor-General.

This would be impossible in France and the UK. In the US, a sitting President cannot simultaneously sit in the Congress. (Article 1, Section 6)

Edited May 26, 2010 by August1991

[Smallc]

August, the Governor General is not, never has been, and probably never will be the Head of State of Canada. Also, in the US, the President already occupies both the posts of head of state (Sovereign) and head of government (prime minister).

Edited May 26, 2010 by Smallc

[jbg]

So because you think something was a bad idea, that automatically means all members of the House of Commons thought so as well....and ignored their thoughts because the Prime Minister wanted them to.

In that case they were, from what I remember, pretty strongly steamrolled. I cannot imagine that a majority of English-speaking Liberal MP's wo uld have wanted to vote for the OLa, for example.

August, the Governor General is not, never has been, and probably never will be the Head of State of Canada. Also, in the US, the President already occupies both the posts of head of state (Sovereign) and head of government (prime minister).

You mean the PM couldn't name himself or herself a Queen or King of the United Kingdom of England, Scotland, Wales and Northern Ireland? Edited May 26, 2010 by jbg

[Smallc]

In that case they were, from what I remember, pretty strongly steamrolled. I cannot imagine that a majority of English-speaking Liberal MP's wo uld have wanted to vote for the OLa, for example.

I can imagine many who would have wanted to vote for the act. I can promise that they didn't all think like you.

You mean the PM couldn't name himself or herself a Queen or King of the United Kingdom of England, Scotland, Wales and Northern Ireland?

Most definitely not.