The Notwithstanding Clause from Bourassa to Legault

 

Francois Legault, full of confidence with the surprising scale of his CAQ electoral victory, is currently threatening to make use of the Notwithstanding Clause to insulate his proposed immigration restrictions from court challenges. He may go through with it even in the face of substantial public opposition, particularly in Montreal. But if he does, I hope that the public debate will distinguish between arguments about the substance of his proposals from arguments about the ‘legitimacy’ of the Clause itself. It was introduced in the constitutional negotiations of 1982 as a quite defensible compromise feature of the Charter, both to avoid the kind of juridical absolutism that has caused so much grief in the United States, and to preserve the democratic powers of the provinces from oppressive federal centralization.

Even if one intensely dislikes some specific application of the Clause, that does not demonstrate that Canada would be better off if it could somehow be rescinded, unlikely in any case. Individual citizens or groups of citizens in functioning democracies may quite often find themselves disliking particular laws introduced by elected governments. including ones that they voted for. But that dislike is not alone justification for unlimited opposition, to the point of disobeying such laws. Both in the past and at present, this ordinary requirement can be obscured by deafening cries about ‘rights’, a word with unlimited possibilities for producing insoluble conflicts between clashing interests. It makes more sense to concentrate public support or opposition on the substance of the policies that appear to require the use of the Clause.

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Trudeau Underestimates the Power of Ideas

The New York Times recently posted a 2016 podcast interview of a returning Canadian ISIS fighter, known as Abu Huzaifa, who confessed to committing an execution-style murder while in Syria, which he now unconvincingly denies. He is believed to be living in Toronto and he is apparently known to the authorities. The Conservative opposition is in an uproar over these revelations, as they would have preferred that re-entry be denied to such individuals in the first place, as is the case in the UK.

One may reasonably conclude that in spite of the permitted re-entry of ISIS fighters, our national security forces are on top of it, and that Huzaifa, and those like him, will simply have to face justice here at home. The trouble, however, is that such an outcome is highly unlikely. Building a case on events that occurred a few years ago in a foreign war-torn country is extremely difficult, something the Trudeau government undoubtedly realizes.

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