| > There's no document that says "I'm the constitution, that's it". Umm section 52(2) of the constitution act? I mean,i guess that is not exhaustive, but its most of it. > There are endless debates about exactly which documents should be considered. I think you are significantly overstating that. There is some debate, but its mostly theoretical and rarely comes up in practise. > Since the amending formula has made changes impossible Its not easy but its not that hard, just nobody agrees on anything. The process for ammending the canadian constitution is roughly the hard as the american one (except for stuff to do with the monarch). Americans need 75% of states, we need 70% of provinces which must contain 50% of the population. Basically the same. > And of course, we're not going to mention the notwithstanding clause. What about it? I might personally not like it, but i don't see how it confuses anything in the constitution. |
The notwithstanding clause allows a government to make a law "notwithstanding" parts of our Charter of Rights and Freedoms.
The only thing it would take for the federal government to remove the freedom of the press is to pass a law explicitly declaring it it is being removed notwithstanding section 2 of the Canadian Charter of Rights and Freedoms. That law now does not violate the Charter, however it is time limited to 5 years, which is the maximum length that parliament can remain in power without an election at which point it would need to be renewed.
The main things that cannot be overridden this way are our right to vote, that legislative assemblies must be re-elected at most every five years, that legislatures must sit every year, and that we have the right to move within or enter and leave Canada.
The original idea was that this provided a balance against the judiciary. Even if the court were to declare something violated our rights, the legislature could just say "okay, we acknowledge that and pass it anyway". The primary balance against this being abused is simply that it would be unprecedented and everyone's scared to touch the "nuclear" button. The federal government has never invoked this clause.
The only reason I can see to "not mention the notwithstanding clause" is because it directly contradicts the idea of the Canadian Supreme Court being the most powerful in the world. Except in a handful of very specific situations, their power is to declare something unconstitutional or against our rights at which point the legislature can simply shout "NO U" and it's in force anyway.