The reality is that Canadians have very few rights that cannot be legislated away by an act of Parliament. Use of the Notwithstanding Clause under any circumstances would just highlight this
Using the ‘Notwithstanding Clause’ to keep illegals from entering Canada from the U.S.
Since the end of last year, the number of people crossing illegally from the United States to Canada has increased. The increase has been attributed to Donald Trump’s election as president with the promised crackdown of illegal immigrants in the United States.
While the numbers are not yet large, they are bound to grow. While many of the current illegal border crossers are from Africa and the Middle East, Reuters reported last week, Canada has recorded a record number of detentions of Mexicans attempting to illegally enter Canada during the first two months of the year. In addition to Trump’s election on Dec. 1, 2016, Justin Trudeau’s government did away with the requirement of visas in order for Mexicans to visit Canada. Unless Trump does a complete policy reversal, these numbers are bound to increase. And more and more Canadians are now demanding their country’s borders to be secured.
Despite all the various suggestions of how to accomplish this objective, there are only two possible solutions, one of which is to build a wall along the Canadian/U.S. border. But a brief glance at a map of North America shows the border is a lot longer than the border separating the United States from Mexico. It would be too unrealistic to expect construction of such a northern wall both in the financial cost and construction time. As Trump and his supporters realize, walls are highly effective but to erect one on the world’s longest undefended border would be unrealistic. The financial cost would be exorbitant and by the time such a wall was finished, everyone who wanted to sneak into Canada would already be here.
The second possible solution would be to change Canadian law to either eliminate or suspend the making of refugee claims by people in or attempting to enter Canada. Any such legislative change would not only be a breach of international law but would likely be ruled unconstitutional by Canadian courts. Hence, the use of the Notwithstanding Clause
Section 33 of the Constitution Act, 1982 is what is known as the Notwithstanding Clause. This section was put in to at least theoretically uphold the doctrine of Parliamentary supremacy. Section 33 can be applied to the fundamental freedoms set out in Section 2 of the Constitution and the legal rights enshrined in Sections 7-15.
If for example, a court strikes down a law as being unconstitutional under one of those sections, Parliament can simply re-enact it. The new law would have to state it is operational notwithstanding it violates the enumerated section of the Constitution. Such a law can be in force for only a period up to five years but can be renewed or introduced again.
Since the current constitution became the supreme law of the land in April 1982, the federal government has never used it. Some provinces have and the most notable use of Section 33 was by Quebec. In 1988, after its French-only sign law was found to be unconstitutional, Quebec re-enacted the law using the Notwithstanding Clause.
The Notwithstanding Clause could be used to prevent refugee claims from being made by those who sneak into the country. Or it could be drawn narrowly to exclude only those who enter Canada illegally from the United States or applied to nationals from certain countries. Similarly a law could be passed requiring persons making refugee claims to be detained until they are found to be Convention refugees or deported. Mass detentions without the possibility of release would be costly but would be a somewhat effective deterrent to future illegal entrants. The suggestion those who enter from the U.S. just be sent back to the United States would require the agreement of the Americans. Trump would be in serious doo-doo with his base if he accepted illegal immigrants from Canada who have no legal status in his country and may only have been in the U.S. for hours before they crossed into Canada.
The reality is that Canadians have very few rights that cannot be legislated away by an act of Parliament. Use of the Notwithstanding Clause under any circumstances would just highlight this.
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Recent polls have shown more and more Canadians want to see the illegals in the country forced to leave. As the number increases with the approach of summer and Trump’s continued crackdown, the numbers will increase. And this increase will only spark more anger from ordinary Canadians.
It is hard to imagine Trudeau’s globalist government will ever want to do anything about it let alone use the Notwithstanding Clause to keep illegals out. And given the current crop of Conservative Party of Canada leadership hopefuls, with the possible exception of Kellie Leitch, it is doubtful any of them would consider using the drastic measure the Notwithstanding Clause entails.
It’s sad to be so pessimistic, but illegals will be coming to Canada as long as they want to come.
