Notwithstanding his opinion, does it make a difference?

The concept of formulating constitutional policy in the heat of an election debate has caught more than a few observers off guard. Monday night, Prime Minister Martin suggested that a new Liberal government would eliminate the notwithstanding clause of the Constitution, an instrument used only once since the Constitution was patriated from England in 1982.

In effect, the Martin suggestion would entrench the Supreme Court unelected and unaccountable, as the final arbitrator of political will. The Notwithstanding clause has been a bit of an escape valve for the nation in the hybrid meshing of the British Parliamentarian system and an American style Constitutional system.

Rafe Mair explains the dynamics behind the creation of the clause back in the early eighties for the Tyee, it's an interesting look back at that time and how the clause came into creation and how it was used once, by a Liberal government in Quebec.

Mair points out that using the clause carries its own danger, as the will of the nation can be expressed at the voting booth. Something the PM is discovering as the weeks dwindle to Election Day. The entrance of the Notwithstanding baffled many an observer Monday night, an added ingredient to a messy stew of the Liberals own creation.

The notwithstanding clause was the creation of the Western premiers of the time, Blakeney (NDP), Lyon (Conservative), Lougheed (Conservative) and Bennett (Social Credit), it was the key element to the Western provinces signing on to the Constitutional package. It's curious to wonder what message the Prime Minister is sending out in these last days of the election campaign, is this Notwithstanding gambit a long sought after stamp on history, or a political diversion. Many suggest it may be the latter, as it appears to be a plan that seems to have come out of left field, in the last minute of play (if I may combine my cliche's for expression).

As Peter Lougheed points out in his examination of the Martin suggestion, the Notwithstanding clause was created to ensure that the supremacy of the elected officials was the final word, not that of an unelected judiciary.

Considering some of the questionable rulings by the Courts over the years, we somehow don't think that Canadians have changed their opinion on that treasured tenet of democracy.