Notwithstanding that he’s losing this election, Prime Minister Paul Martin made a serious error in the recent leadership debate by announcing that the Liberals would take away the right to override the courts on Charter of Rights issues.
It may be a defensible position, but it smacks of a desperate man taking desperate measures in the heat of a battle that’s not going well.
It’s obvious what the Liberal leader was trying to do: paint Stephen Harper as a man who might be willing to abrogate court decisions over basic human rights (such as same sex marriage) by using the notwithstanding clause. Harper has said he won’t do that over the same sex issue but Martin wants to plant the seed of uncertainty.
The PM wants to stake out the territory on the high road to suggest the Liberals would never violate Charter Rights as confirmed by the courts. Knowing that Canadians are more than a tad nervous that the Conservatives may have a hidden agenda on key social issues, this makes a lot of sense as a campaign strategy.
But, wait a minute.
The notwithstanding clause didn’t land on our plates exactly by accident.
I’m no constitutional expert (excepting the wife’s mood swings) but I do remember this: the notwithstanding clause was the compromise that the provinces (outside of Quebec) accepted to allow the repatriation to take place in the first place.
It is a key safety valve that means that, should there ever be a court decision on the Charter of Rights that the majority of Canadians find unacceptable, there is a possible way that the people we elect can address it.
Needless to say there would be full-scale public debate coast-to-coast-to-coast should anyone try to use the notwithstanding clause.
The point is that Martin seemed to be making constitutional policy off the top of his head in the heat of a leadership debate. Did this new constitutional wrinkle just occur to him when he woke up Monday morning?
If he was trying to be statesman-like, Martin blew it. In fact, he just looked like a politician paralyzed by the thought that he might be losing power. Not exactly the image Canadians hope to see in their Prime Minister.