Paul Martin & The Constitution

I had Charter this morning with Professor Elliot (he of the most excellent mustache), and we discussed Paul Martin's Constitutional plan. So, in the second English debate, Paul Martin pledged to introduce a constitutional amendment to remove the ability of Parliament, but not the provincial legislatures to invoke the notwithstanding clause, section 33 of the Constitution Act, 1982. Martin claims he is able to do this under section 44, which allows the Federal government to amend the Constitution unilaterally with respect "to the executive government of Canada or the Senate and House of Commons." However, that section is subject to subsection 42(b) of the Charter which invokes the general amending formula (7 provinces with 1/2 of the population) for changes affecting "the powers of the Senate and the method of selecting Senators."

The upshot of all of which is that since the Senate would be stripped of the power to utilize the notwithstanding clause, the general amending formula operates. Martin, who has been busy claiming such enormous fidelity to the Constitution not only wants to amend the Constitution, but apparently wants to do so unconstitutionally.

What happens if Martin gets his druthers? Well, not only could a majority of the House & Senate reinstate the notwithstanding clause unilaterally, but could probably strengthen the notwithstanding clause so as to allow the federal government to ignore all the enumerated rights, and with permanency. The last time the Liberals fiddled with the Constitution, they created a cascade of resentment that almost tore the country apart. They now seem to be on the verge of tearing apart the Constitution itself.

Bravo, Mr. Martin.

n.b. The legal opinions expressed herein are mine; Professor Elliot started the discussion, and strongly suggested that s.42(b) would be operative rather than s.44, but I wouldn't attribute the other views expressed to him.

Update: Professor Elliot wrote a few days ago (and I hadn't got around to posting it) summarizing his thoughts:

I have doubts as to whether s. 44 would be applicable in this context quite apart from s. 42(1)(b), because I think there's a good argument to be made that the references to the Senate and House of Commons in s. 44 relate to what might be called housekeepings matters (see eg, ss. 33 - 36 of the CA 1867), and also because the override provision refers to Parliament as an institution and not (as s. 44 does) to its component parts.

Even if s. 44 could be said to be applicable here in a prima facie sense, I think there's a solid argument to be made that s. 42(1)(b) would take precedence over it because of the latter's reference to the "powers of the Senate."

Thanks Professor!