The Supreme Leader's Not-with-standing Gambit

At some point today I wanted to write a post about another memorable moment in last night's debate: The Supreme Leader's pledge to remove the not-with-standing clause from the Charter of Rights and Freedoms.

You see in this country, we didn't really have our own constitution. Our Constitution for years was an act or a law passed by the Brittish parliament called the BNA act that created the "Dominion of Canada."

Now we, as a nation, could have been content with that. Though at a certain point we felt the need to "re-patriate" the constitution. And that's exactly what Pierre Eliott Trudeau did. He even created a Charter of Rights and Freedoms, that would enshrine Canadian Liberties reminiscent of the American Bill of Rights.

So, when we wrote of rights, we wrote of the right of assembly, the right of free speech, the right of security of the person and so on and so forth... Of course, Trudeau, some say being a in the closet Red Square Commie, cleverly forgot to mention one right: the right to property.

You see at first, Canada was more like Britain. Britain has no constitution. It is ruled by the common law. In other words, it is ruled from tradition and precedent. When Canada wrote up the constitution, there were some concerns that Canuckland could turn into another US with the Supreme Court having the heyday of power. So Trudeau, being the smart fox that he is, included the "not-with-standing" clause...

Basically it's a "but we can do whatever the heck we please" clause. By invoking it, the government of the day can override any Supreme Court decision... say like Same Sex Marriage.

I have to admit to thinking that was the most ridiculous thing ever when I first learned of that clause. How could we guarantee people certain rights and then say we can take away those same rights at a moments notice?

What I didn't see then was that it's all a question of interpretation. Everyone can agree that all individuals are equal. Not everyone can agree that Same Sex Marriage is a debate about equality. And since Supreme Court appointees don't undergo the scrutiny they do in the US, the prospects of the concentration of power into one unelected body that has such far reaching influence can be a disastrous proposition.

Some say Martin did it as a desperate gambit in the last stages of the game to knock Harper off guard. And it very nearly did, and that's what surprised me that no one has picked up on. You could tell in the debate that Harper did not see that coming, and instead offered a pre-canned response to the Charter of wanting to include a "right to property..." That is a great idea, but it was obvious he was just rhyming off talking points.

Then Martin pressed Harper again on the issue, and you could tell Harper had to make a decision right then and there that could possibly affect the rest of his campaign. Making party policy up on the fly is never a good idea, and can be down right disastrous. This issue is not covered anywhere in Conservative policy that I know of. I've never heard it discussed by anyone. But Harper needed to make a decision right then and there.

Finally, his response was that he supported the Charter as is. Perhaps he leaned on his own Burkean roots, which told him when in doubt to uphold the status quo and keep tradition before steaming ahead into unknown territory.

Whatever happened, whether Harper really was almost stumped or not, this will something discussed for a while by pundits and the like. And I bet Martin liked this idea as well, because it involves getting a reaction of the Premiers for it... Anything to get Ralph Klein's mouth to open I guess....

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