Ottawa fordert den Obersten Gerichtshof auf, das Gesetz über die Verwendung von Charters ungeachtet der Klausel zu klären

This is a really stupid idea. Who in Ottawa thought this was a good idea?

Section 33 was a concession to get Quebec into the constitution. If you water it down — something Quebec has used extensively since its inception for the National Assembly to enact laws designed to „protect Quebec culture“ — you seriously risk fanning the flames of Quebec separatism.

But you also fan the flames of Albertan separatism, telling Alberta that its elected officials can no longer overrule progressive activist judges giving overbroad interpretations to the Charter.

Of course Ontario won’t be too thrilled either.

And then federally, who hasn’t needed to use it but very well may need to soon, will be left with possibly a diminished power.

There’s about a 99% chance the SCC upholds the Ford decision (not about Doug Ford, this is just the name of the leading case from 35 years ago). There’s a 1% chance they water the power down. But there’s a 100% chance this exercise needlessly fans flames of separatism in a divided country. And most insane, it comes at a time when Carney needs to enact a ton of legislation to start fixing things. This is not the time to voluntarily ask the courts whether Parliament should have less power.

From a more philosophical perspective, I see this as an attack on Parliament as an institution. We know PMs have progressively made the PMO (the de facto executive branch) stronger at the expense of Parliament. This is why the country has remained governed despite Parliament sitting very minimally over the past year: complete gridlock last fall, then prorogued, then dissolved, then sitting for a few weeks in June, then summer recess, and only back this week. We also know judges have increasingly used the Charter to limit Parliament’s powers to legislate. Our 3 branches of government are barely co-equal. Trying to water down Parliament’s greatest power, its ability to exempt legislation from application of ss 2, 7-15 of the Charter and thereby check against judicial overreach, would be the final nail in the coffin. If the judicial branch is supreme over the legislative branch, is it still a democracy?

We opted against the UK model of absolute parliamentary supremacy, but this move would mark a pivot towards unfettered judicial supremacy. Why should 9 unelected lawyers in santa claus robes be absolutely supreme over 350 duly elected lawmakers?

This stupid it’s like asking the fox to clarify whether it’s ok to build a fence around a henhouse. The notwithstanding clause is specifically there to prevent the courts from running roughshod over the elected parliament of the people.