Withstanding notwithstanding

A number of readers, perhaps new to these parts, have asked what on earth (I'm paraphrasing) I am doing supporting the Prime Minister's proposal to remove the notwithstanding clause from Parliament's reach. I'll be writing about this in tomorrow's column, but meantime here's a column on the same subject (one of many) from last June. The rest can be found by clicking this saved search link. Occasionally I receive an email like the one that landed in my in box yesterday. Subject: “Burn the Charter before it kills us all.” Though they express themselves in more uncompromising language, the writers of these jeremiads are not that far removed from certain eminent members of the commentariat, who seem no less convinced that the Charter of Rights represents a strange new threat to the public good, albeit one of less existential dimensions. The Charter is hardly a flawless document, and the Supreme Court is fully capable of the most bizarre interpretations of it. Yet listening to some of the critics, I am convinced their complaint is not really with the Charter, but with the whole system of written law; not with an activist Supreme Court, but with the very principle of judicial independence. The emotional thrust of their arguments, if not the logical, is an impatience that any constraint should be placed upon the right of an elected Parliament to do what it thinks necessary in the public interest, and therefore that any exercise of judicial review is in itself an example of judicial activism. But this is not a new argument. Nearly four centuries ago, in 1608, James I declared before “all the Judges of England” that, as they were but his delegates, he could as well sit in judgment of their cases as themselves. He was famously rebuked by Sir Edward Coke, Chief Justice of the Court of Common Pleas. "The King in his own person cannot adjudge any case," he replied. These could be decided only "according to the law and custom of England," which was the "golden measure to try the causes of the subjects." Substitute Parliament for James I, and the Supreme Court for Sir Edward, and you have much the same debate today. Critics of the Charter wonder why the Supreme Court should have “the last word” on laws that Parliament has passed. But they might as well wonder the same about any law, since all laws, though they are passed by the legislature, have effect only as interpreted and applied by the courts. I said at the end of my last column that intepreting the law was the courts’ job. But why should that be? Why shouldn't parliament be able to say what its own laws mean -- all laws, not just the Charter? Why should we leave it so some unelected judge in Medicine Hat or Chicoutimi to say what they mean? For that matter, why do we need written laws at all? We elected the government. Why can't it just get on with governing? If we don't like it, we can toss it out at the next election. Because we insist our governments be held to certain standards, even between elections. We want their discretion to be limited, not unlimited, and so we insist that they put their intentions in writing, in law, so that we can see precisely what they are doing, and whether it is consistent with what they had previously said they would do -- or, to the extent of the inconsistency, whether this represents a deliberate change of policy, or mere arbitrariness or incoherence. But for this to be so, we need an independent adjudicator. If governments could be the judge of their own handiwork, the vital check on their discretion posed by the written law would fade to nothing. Laws would mean whatever the government said they meant, depending on their mood. Inconsistencies would multiply. It would be impossible to identify what principles, if any, were guiding government action, and impossible to hold governments to their word. In the specific case of the Charter, we consider the principles it contains to be so important that we forbid any inconsistency, except in special circumstances. And we make it harder to change the Charter than ordinary laws. But the general point applies. In enforcing the Charter, the courts are simply holding governments to their word. Yes, but -- why be so dogmatic about it? Isn’t there room for some sort of safety valve, like the notwithstanding clause, to ensure that Parliament’s will prevails in the end? After all, the courts are themselves permitted to derogate from the Charter, through the “reasonable limits” clause. Why shouldn’t Parliament have the same power? Isn’t opposition to notwithstanding ultimately grounded in a belief that the courts know best? Well, no. It isn't that judges are "better" at interpreting the law than Parliament, so much as it is that judges are "other" than Parliament: an independent third party, beyond Parliament’s control. Why is a "reasonable limits" clause okay, but notwithstanding is not? Because a reasonable limits clause is itself reasonably limited. There are exceptions allowed to Charter guarantees, but they have to pass the test of reasonableness. Again, that provision would have no meaning if Parliament itself could define what was reasonable: all exceptions could and would be so justified. Which is pretty much the case with notwithstanding. Of course the courts can get it wrong, just as much as Parliament can. That's why we need both, each as a constraint on the other. The difference between reasonable limits and notwithstanding is not between one branch of government and another, but between laws that invite the scrutiny and participation of both branches, versus laws that involve only one and not the other. If the courts decide that a given law unreasonably limits Charter rights, Parliament has the option of redrafting the law in a way that achieves the same objective, but at less cost to rights. Most often there is plenty of latitude for this. Whereas the notwithstanding clause removes the law from all judicial scrutiny. No one would want the courts to rule without Parliament. But neither may Parliament rule without the courts.