Notwithstanding: minorities in Canada can never feel completely, secure as long as the country's Constitution contains the "Notwithstanding Clause".
More than anything else, Mr. Trudeau wanted a Charter of Rights and Freedoms to be included in the Constitution. He believed this Charter was crucial in defending the values of liberty and equality, that Canadians enjoyed. In his view, these rights had to be enshrined in law and beyond the touch of people.
After all, the mood of the people can change. Older Canadians had seen this happen. During the 1930s and '40s, Canada closed its doors to Jews. Thousands had tried to enter Canada when they realized the goal of the Nazis in Europe was to exterminate them. But, the government of William Lyon Mackenzie King refused to allow any Jews from Europe to enter the country. Why? The mood of the Cabinet and the country was anti-Jewish.
Keeping Jews out of the country was politically popular. So was locking up Canadians of Japanese ancestry a few years later.
In 1941, Canada was at war with Japan. In 1942, thousands of Canadians of Japanese ancestry were rounded up and put into internment camps. Their property was seized and they were stripped of the right to vote. In general, the Canadian public approved of these actions.
With basic rights carved into the granite of the law, minorities can't be persecuted so easily.
In his 1993 book Memoirs Pierre Trudeau wrote: "I saw the Charter as an expression of my long-held view that the subject of law must be the individual human being; the law must permit the individual to fulfil himself or herself to the utmost. Therefore, the individual has certain basic rights that cannot be taken away by any government."
During those constitutional talks, some of the provincial premiers didn't share Mr. Trudeau's vision of a cast-iron ,guarantee of rights. In the horse-trading over the Constitution and the Charter of Rights and Freedoms, they persuaded the prime minister to accept a "Notwithstanding Clause."
This clause allows both provincial and federal governments to overrule some of the Charter's protections (see sidebar below).
Mr. Trudeau hated giving in on what he called the "mealy-mouthed" Notwithstanding Clause. Another prime minister, Brian Mulroney, said it reduced the Charter to "scrap paper." While one of Canada's most distinguished constitutional scholars, the late Senator Eugene Forsey, said the Notwithstanding Clause had "shot" the Charter full of "great, big, gaping holes."
Section 33 of the Charter of Rights and Freedoms gives Canadian legislatures the power to suspend certain rights. Called the Notwithstanding Clause, Section 33 allows for the suspension of rights for a maximum of five years, this suspension can be renewed. The rights that can be put on ice are the fundamental freedoms of religion, expression, the press, assembly, and association. The guarantee of equality can also be suspended. The Notwithstanding Clause cannot be applied to issues that relate to our democratic system of government, the right to move and work in another province, or language rights.
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|Publication:||Canada and the World Backgrounder|
|Date:||Oct 1, 2003|
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