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There’s an elephant in the room we call Canada: our Charter’s notwithstanding clause. Agreed to in 1981, the clause — which allows any Canadian government, federal or provincial, to override certain elements of the Charter of Rights and Freedoms — was a uniquely Canadian compromise seen as necessary to bring Quebec into the Charter fold. It was controversial from the start. We believe in civil and human rights for all, don’t we? On the other hand, in 1981, few of the nervous leaders who signed on thought it would be used often, if at all. They stressed the positive — in particular, the belief that it balanced the respective powers of Parliament and the judiciary. Furthermore, there were safeguards: It contained a five-year sunset clause, and a displeased electorate could throw out a government that sought to diminish basic freedoms. Paradoxical though it was and remains, the notwithstanding clause mirrored familiar ways of Canadian governance. We owe our success as a country to our ability to compromise on contentious issues — to accommodate, in other words. Since Confederation, we have avoided fracture by talking and legislating ourselves into national unity.”

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