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Thursday, December 22, 2005

Is the notwithstanding clause the Charter's fatal flaw?

That's what Blue Tory blogger Stephen Taylor suggests, here, in his piece about upcoming Liberal attack ads (scroll down almost to the end of the post):

The Charter is a Liberal document with one serious flaw in my opinion: it is wrong that rights can be withheld by the use of the notwithstanding clause. This type of "just kidding" clause in a legal document that defines our rights remains a significant failure of Trudeau's legacy.

But is young Stephen Taylor right, er, correct?

Well, he's right about one thing:  The Charter is Pierre Trudeau's most significant legacy.  Taken as a whole, the Charter is his legacy's greatest "failure."

First, did Canada really need another rights charter?

Yes, that's right:  another rights charter.  Canada already had a federal rights charter:  the Canadian Bill of Rights, 1960 -- the Diefenbaker charter.  And this one included property rights (subsection 1(a)), unlike the Canadian Charter of Rights and Freedoms ("the Charter") which has none.

That strikes me as a "failure."

The "reasonable limits" clause of Section 1 of the Charter is frequently used to allow some Charter rights -- especially, Section 15 "equality rights" -- to trump other Charter rights -- especially religious freedom.

That strikes me as a "failure."

Section 3 of the Charter is now interpreted in such a way that the Court has found that criminal inmates have the right to vote while they serve their sentences.

That strikes me as a "failure."

Section 5 of the Charter means that a Parliament can continue its "session" indefinitely within the five-year maximum length of any Parliament.  "Session" means the sitting from a Throne Speech until prorogation or dissolution of Parliament.  Why is that important? Prior to the Charter, the number of bills a Government could introduce in Parliament was constrained by the BNA Act's requirement that Parliament have a new session every year of its sitting.  That is, Governments would only introduce the number of bills they could reasonably expect to pass within one "session" -- within one year of Parliament's sitting. Now, a "session" can continue unabated within a Parliament, and a Government can introduce bills that sit on the order paper waiting for an opportune time to be passed.

That strikes me as a "failure."

Subsection 24(1) expanded the Court's power of judicial review from merely settling disputes between the federal and provincial governments, turning the Court into an unelected, largely unaccountable legislature.  Unlike political parties that must face voters at least every five years, the Courts never do.  Further, subsection 24(2) is interpreted by the Court such that not just Governments are required to uphold its provisions, but so are businesses, private institutions, voluntary associations, and individual citizens.  The Court insists that when, say, an independent printer opens his doors for business, his business is no longer a private concern, but a public domain subject to the Charter.  Therefore, a printer may not refuse to take business from, say, those whose objects he finds objectionable.  Or, when a religious service club and, even, a church offers its premises for rental generally, it cannot refuse to rent to those whose "lifestyle" it does not condone.

That strikes me as a "failure."

Section 33 of the Charter -- the notwithstanding clause -- was a deal breaker at the time it was presented to the Parliament of Canada and the provincial legislatures.  Without the inclusion of Section 33, the Charter would never have become constitutional law.


Because Parliamentarians, the premiers, and provincial legislators understood that the notwithstanding clause was the only effective check on an unelected, unaccountable, agenda-driven, power-hungry, or capricious Court.

Section 33 a "failure?"

Far from it.  It's the Charter's saving grace.

Posted by Russ Kuykendall on December 22, 2005 in Canadian Politics | Permalink


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A “free vote” on “same-sex marriage” is a vote on a lie
By Stephen Gray

We are told that if the Conservatives form the next government they would allow a “free vote” on this invention and corruption of words called “same-sex marriage.” This sounds good and admirable, except that having a vote on this abomination called “same-sex marriage” would be a vote on a LIE. And to win this vote the Conservatives would need to have a majority. Surely they know this is unlikely? Even if the vote was lost they would be able to say they tried, then it would be back to politically correct business as usual. And this LIE would now have been given the credibility of being a truth.

Fact #1 Same-sex marriage was never in the Charter of Rights
Fact #2 The Charter was subverted and this abomination was imposed by non-elected judges.
Fact #3 Scurrilous politicians voted upon this LIE in parliament.
Fact #4 This LIE was then passed into “law.”
Fact #5 This now meant this lying nonsense was “legal” in the country.

So what can be done? The only hope is the use of the not-withstanding clause. This clause was put there for reasons such as this. Non-elected judges cannot and should not be allowed to subvert the Charter of Rights. But do we have any principled politicians left who will do the right thing and call for the not-withstanding clause to be used?

Stephen Gray
December 20, 2005.
[email protected] Website: http://www.geocities.com/graysinfo

Posted by: Stephen Gray | 2005-12-22 9:24:45 PM

> Fact #1 Same-sex marriage was never in the Charter of Rights

Probably not, but there are countless laws in the books that don't really make sense these days anymore.

Why? Because societies change and develope, people change. It is not a static thing....

So why does there seem to be a group of "Conservatives" who seems to be hell bend to keep the status quo?

The Nothwistanding clause is an interesting piece in the charter and I wouldn't call it a failure, the onlyl problem with it is: It is a "trigger" if any politicians has the guts to pull it it doens't look good.

So yeah.

> But do we have any principled politicians left who will do the
> right thing and call for the not-withstanding clause to be
> used?

Probably not, because I don't think any politician really believes that he if pushes for this he'll have a future.

Posted by: Snowrunner | 2005-12-22 10:13:10 PM

The flaws are right at the beginning:

"Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law"

The part about God is meaningless because no two people have the same conception of God or in what areas he/she would choose to exert their supremacy. And if the rule of law is supreme, then what good is a charter? This means that laws will always override your rights.

Which is confirmed just below:

"... guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

This means, you have rights, until someone decides that you don't have rights. There's really no point to reading any further in the charter.

Even if it were better written, a charter would be useless anyways. It is only a piece of paper. The only thing that matters is what the majority of people in an area deem to be their fundamental rights. Canadians, like people in western countries, have a fairly odd conception of their rights, mostly thinking that they have some kind of right to take other people's property and dictate to other people what they can do with their own person and property. When there is no real understanding of what I would call fundamental rights (life, liberty and property), then any piece of paper allegedly capturing humans rights is bound to be contradictory and full of holes.

You will notice that section 2 of the charter, allegedly listing the "fundamental" rights, contains only fairly useless rights, i.e. ones which can hardly be used to better your own life in any meaningful way:

a) freedom of conscience and religion;
b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
c) freedom of peaceful assembly; and
d) freedom of association.

Freedoms of conscience, thought, belief, and opinion are ridiculous because no one knows what is in your conscience or thoughts anyways. So how could they allow or disallow it? These rights are meaningless. The part about expression in media is a dead letter, because our legislatures and courts can and do forbid any kind of expression which they deem to be "harmful".

And you do not have any practical freedom of assembly and association - if you actually had these rights, then the courts and police would not allow union thugs to prevent you from working or shopping. What these items really mean, is that you have the freedom to assemble and associate with people only for fairly useless and (they deem) harmless things like chess clubs and prayer meetings. Regarding unions, I guess what the charter means is that you have the right to force others to associate with you. "As can be demonstrably justified in a free and democratic society." Ha ha, that's a good one.

Posted by: Justzumgai | 2005-12-23 7:52:16 AM

I think we must go to the root of the problem. The problem is this charter. The previous bill of rights was acceptable and had much more wisdom. The real problem is not another vote on SSM. I agree it would be voting on a lie.

Who is going to have the wisdom and guts to abolish this charter, that is the question.

Trudeau was the worst thing that ever happened to Canada. He goofed with the separatist tendency in Québec. He could have managed to play it down. Instead, his provocative attitude threw oil over the flame. In the past there was a Bloc party at the federal level. It subsided, because of the skilled politics put forward.

So we have to repair the damages made to this country by Trudeau.

How to abolish the charter? First a national campaign to show the problems generated by this infamous device. Then I suggest a referendum.

Posted by: Rémi houle | 2005-12-23 8:06:24 AM

P.S. Russ, you have failed to state what you think would check an elected, agenda-driven, power-hungry, or capricious legislature. An election? Hardly. Not when you can easily convince a plurality of voters that they can benefit from legalized plunder. Ever wonder why the equalization formula means that there are eight have-not provinces, three have-not territories, and only two 'have' provinces?

The de facto Canadian charter of rights and freedoms is this:

1. Government is your Daddy
2. Money grows on trees

Posted by: Justzumgai | 2005-12-23 8:09:51 AM

JZG - the check on that would be an arrangement where provinces that are unduly supporting the others can opt out of the equalization payments.

Posted by: Shane O. | 2005-12-23 8:29:45 AM

I think the biggest flaw with the Charter is the assumed provision "Equal Rights shall exist for all, but Ontario has priority." Unless equality means what it says, the Charter is worthless. Get rid of Ontario's Kyoto exemption NOW! No special privileges for anyone, not even the gov'ts rich friends.

Posted by: Scott | 2005-12-23 1:00:30 PM

Scott, I agree that the auto industry's Kyoto exemption is wrong. I also think that one province being considered have-not only after their major source of revenue is exempted by the churchill falls agreement is wrong. How many other provinces have side deals with respect to the eqalization payment formula? So many things need to be fixed in this country.

Posted by: jmrSudbury | 2005-12-23 2:34:23 PM

"But the fact is, you have no right to get everything your way when everybody else wants something different."

"Everybody wants ... "? What was the average popular vote percentage in Canada, which has turned in a parliamentary majority over the last 50 years? Maybe 40 percent I'm guessing.

But even if it was always more than half of the voters who wanted something ... what if 51% of your neighbors elected a committee, who decided they wanted to take all the furniture and appliances out of your house for themselves, then knock it down and use it for a parking lot - what are you gonna do, call another election?

Maybe democratic legislatures are not so inherently wonderful after all.

Posted by: Justzumgai | 2005-12-23 4:56:39 PM

If everybody wants to rule the world (even though I don't), but I have no right to get what I want when everybody (else) wants something different, does that mean I will be forced to rule the world ?-)

Merry Christmas Everyone
Peace On Earth and Goodwill Toward All

Posted by: Vitruvius | 2005-12-23 5:25:17 PM

Justzumgai, Mulroney won in the 80's with a sound majority. In fact, the Progressive Conservatives won the largest majority government in the history of Canada with 211 of 282 seats (50.03% of the popular vote). The in the early 90's, the liberals won a good majority too 197/295 where the popular vote for the Progressive Conservatives fell from 43% to 16%. The liberals had 41% of the popular vote. Why are you so worried about the popular vote? The composition of parliment does not reflect the popular vote.

Posted by: jmrSudbury | 2005-12-23 8:34:20 PM

Check these two Websites on Canada's marriage issue.-1.promarriage.ca and enshrine marriage canada,check the "Declaration" section at this Website.

Posted by: Larry | 2005-12-26 4:05:48 PM

You've missed a big difference between the Charter and the old Bill of Rights and its a significant one:

The Charter is part of our constitution and therefore in order to change it requires a constitutional amendment. Meech Lake and Charrlottetown showed us how easy that is.

The Bill of of Rights was Federal Legislation. It could be revoked or changed at anytime at the whim of a particular government. Not exactly a great way to protect our rights and freedoms. Also, as federal law, it did not apply to the provinces (see section 91 and 92 of the BNA). Not a good way to protect our rights and freedoms.

As for the whole section 15 not including homosexuality, you guys might want to read that section again - the list in section 15 is not an exhaustive list, as the section itself states.

And for the historically ignorant, the notwithstanding clause was put in at the insistencce of Peter Lougheed and Alberta (among others). Yes it is one of the failures of the the Charter.

Most of your whining about the Charter are because your opinion falls on the loosing side in a few issues. I certainly didn't hear conservatives up in arms about the activist court and the damn charter whne Chauolli came down. I don't remember too many complaining when R V Oak struck down the reverse oness clause (guilty until you prove yourself innocent) of the Narcotic Control Act in 1984. A great many conservatives applauded the SCC when it used the charter to affirm personal liberty in the recent Swingers club case.

Before you get too nostalgic for the good old days, remember there are a few things that happened in those days that the charter would prevent - Natives being denied the right to vote, internment of Japanese, Italian, Ukranian and Gernan citizens to name a few.

that same charter might just protect you someday.

Posted by: Mike | 2006-01-02 1:57:55 PM

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