In Robin Koerner’s book #ifyoucankeepit, he talks a bit about the idea that governments, in large part, are and have been restrained by tradition more than law.
The act of going against traditional limits of power have in large part been met with violent or strong public backlash and revolution by the people being ruled. This got me thinking about the constitution of Canada versus America.
In the United States, at least in theory, government is restrained by the constitution (albeit largely ignored to push government agendas) with no legal loopholes or opt out clauses
In the Canadian constitution there are “notwithstanding” clauses that allow governments not be bound by by other provisions of the document. For example section 33 of the Canadian constitution states:
33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
Marginal note:Operation of exception
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
Marginal note:Five year limitation
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).”
Sections 7-15 being referred to as the Canadian Charter of rights and freedoms.
In addition to that, the Charter also contains provisions that basically state that no Canadian province or territory is legally bound to this Charter if they do not care to be.
While rare (and traditionally not used, largely because the public as a whole would not stand for it) this section 33 has been used against citizens, as we have seen in the example of the Quebec niqab ban in which the province of Quebec invoked the notwithstanding clause in section 33. Effectively, our constitution has no legal protections for citizens based on the whims of the government.
Some other examples include the Ministry of Child and Family Development here in BC which has a legal mandate to act however they see fit and can legally kidnap your children with no warrant, no criminal charges against you, no reasonable probable grounds, no lawyer, no court proceedings, no evidence, no crime in progress etc… merely because the social worker has decided the kids are not safe or even because you are first nations (as a recent case here in BC has shown as well as one other current case of a woman who had her daughter taken, then adopted out to a new family without even so much as notifying this girl’s mother).
In effect our constitution is about as worthless as the paper it is written on. Only through the collective will of the people is government restrained; there are no legal binding laws that government is restrained by.