Wednesday, January 11, 2006

Notwithstanding fear

The power of interpretation The donnybrook that Paul Martin wants to open up on changing the charter - and wasn't he supposed to be it's best defender, using it protect religious minorities? - seems like as good a place as any to discuss textual interpretation. Wait! This won't be boring, I promise. The way Martin and his defenders paint it, removing the notwithstanding clause removes a Damocles' sword from the rights that are in the Charter. The crude insinuation is that this will remove, once and for all, the ability of those nasty conservatives to bash minorities. This is based on the idea that a text, in this case the Charter, means exactly what it says it means and nothing else. No respectable scholar would argue that, and Martin knows it. The Charter, like any other law, has to be interpreted before it can be acted on. It's easy to overlook how important that is. You cannot safeguard the nation through a magical combination or words on a page. A sharp mind can do amazing things with any text. When the Liberals passed their SSM bill in the last session of the house, they did so in response to the Supreme Court, which had ruled that the existing definition of marriage was discriminatory under the Charter. The court didn't change a word of the Charter in reaching it's conclusion. The subject of gender orientation was 'read in'. The existing phraseology was kept, but it's meaning was altered. So you can see that altering the effect of the Charter does not require the use of the notwithstanding clause. That is a blunt weapon that most governments would rather not use, and why use it when you can get results with so much more finesse? In this case a court stacked with Liberal appointees (eight of ten) "found" a right. In a different case, the court could remove or impair a right in such a way that it still exists on paper but is of little consequence. In the Chaoulli case, for example, the Court ruled that overly long delays in accessing the services of the public health system were a violation of the Charter's guarantee of the right to personal security. It was a contentious decision but it was the right one, I think. To rule the other way would have been to impair the right to personal security tremendously. The point is that Chaoulli could have gone the other way, eroded a Charter right, and it would have done it without altering a dot of the Charter or using the notwithstanding clause. Martin's characterization of the notwithstanding clause as a threat to the Charter is baseless because the Charter is always subject to the interpretation of the court. No adult thinking person should be of the opinion that the court will always arrive at the "right" decision, held from excess by a mere document. These ten people are charged with a tremendous burden in a society undergoing as much rapid change as ours. Even with the best of intent, they could produce a Dredd Scott type of decision in some unkown future event. With no notwithstanding clause, the government will not be able to say, "thanks, but no, we will respectfully decline to accept that." It's hard to say what such a move of no confidence in the court would have on the court but it could be the less of two evils. In any case, any government that undertakes to use the notwithstanding clause would have to face the public at some point. It will be held accountable, which cannot be said of a court that botches a decision.
Martin's suggestion that he has to alter the Charter to save it is based on ignoring how much room there is to alter the document through interpretation. Now, I'm sure that Martin does in fact know this and is just praying on the fears of the ignorant voter. Unless his change is written into the Constitution it could simply be undone by a future government. Martin likely knows this also. During the whole SSM debate the ability of the Court to read the document with a wide degree of latitude was loudly trumpeted by those in favour and I argued that while it is helping you now, it might return to bite you in the ass in the future. The Martin Liberals are scared to death that future might be near at hand and are now claiming constructionism is the way to go. My originalist argument was that while the laws certainly need to be respectful of changes going on in the culture, the way to do this is through the process of revision and amendment in the house of commons. That is what we elect these people to do. The house is filled with three hundred and eight members elected from all across the country, who must respond to their local riding in order to keep their seats. The judges of the supreme court are, in contrast, ten people appointed (no real judicial review in Canada) by the PM. They answer to no one and were elected by no one. Martin's proposed course of action - increasing the autonomy of the court - is a step in the direction of a star chamber. The Liberal party has a preference for a loosey goosey manner of legal interpretation. It helps grease the wheels of government in their efforts to get the trains to run on time. This makes their claim to stand or fall on the text of the Charter somewhat ridiculous, and it means that voting Liberal means you can't be really sure about what you're getting. More specifically, in this case what they want to save is not so much the Charter, but their interpretation of it. No one who is not pure can be allowed near it, or Martin will turn red and wave his arms.
Martin and the Liberals are over the line and think that their vision of the country is the only "true" one. Non Liberal Francophones and westerners can't allowed to touch the levers of power because we would only dilute the glorious truth of their stealth revolution. As a democrat and a Trinitarian, I think there is a lot to recommend interaction of differing parties. Here's a quote that gets at the same idea. As J.S. Mill wrote (surprised?):
He who knows only his own side of the case, knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side; if he does not so much as know what they are, he has no ground for preferring either opinion. ... Nor is it enough that he should hear the arguments of adversaries from his own teachers, presented as they state them, and accompanied by what they offer as refutations. That is not the way to do justice to the arguments, or bring them into real contact with his own mind. He must be able to hear them from persons who actually believe them; who defend them in earnest, and do their very utmost for them. He must know them in their most plausible and persuasive form; he must feel the whole force of the difficulty which the true view of the subject has to encounter and dispose of; else he will never really possess himself of the portion of truth which meets and removes that difficulty.
The deliberations of the Court would be enriched with the addition of new points of view that fall in the wide range of Canadian tradition. The Martin government is doing its utmost to permanently exclude them and in so doing, it would alter the nature of the Charter and the court that gives it life. This fear ridden attempt, done as a campaign afterthought, is the height of irresponsibility. Just go, Mr. Martin. Please, just GO.

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