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Thursday, January 26, 2006

The Charter's other 'notwithstanding' clause

The January/February issue of The Atlantic contains a telling letter (on page 28) from a Canadian reader who suggests she was shocked when she read, in a November article by Emily Bazelon, a reference to Canada's having laws that "limit free speech." The reader, Sharon Coulter Nichol, seeks elaboration, and concludes, "I would not like to continue to voice my opinions so openly if I am contravening legal statutes."

Whether or not Nichol is being sarcastic in her final declaration is not known. But what is apparent is that she was truly surprised at Bazelon's assessment of the status of speech rights in this country. I suspect a great many somnambulent Canadians would be similarly taken aback.

Here is Bazelon's factually-correct answer to Nichol's letter:

'Canada’s Charter of Rights and Freedoms treats as "fundamental" the rights to free speech and freedom of the press. But the charter makes these rights subject to "such reasonable limits prescribed by law as can demonstrably justified in a free and democratic society." In other words, Canadian free-speech rights have a built-in check.

In some contexts the country’s courts have interpreted the charter to allow for more suppression of speech than American law permits. In 1990 Canada’s supreme court upheld a law barring hate speech. In 1992 the court adopted a relatively broad definition of obscenity, including material that exploits sex in a "degrading or dehumanizing" manner.

And in 2002 a lower court outraged some civil libertarians by finding a man guilty of violating Saskatchewan’s Human Rights Code after he placed an advertisement in a local newspaper. The ad was for a bumper sticker. It cited (without quoting) biblical passages that condemn some homosexual acts and showed two male stick figures holding hands, standing in a circle with a slash through it.'

The latter case involves Hugh Owens, to whom I have just now talked, seeking an update on his case. He says the province's appeal court heard an appeal of the ruling against him several months ago, and he's still awaiting a decision.

Posted by Terry O'Neill on January 26, 2006 in Current Affairs | Permalink

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Comments

I guess the Charter uses Paul Martin's definition of "fundamental"

Posted by: Angela | 2006-01-26 4:53:54 PM


The charter is an instrument not for our freedom but to be used to push some agendas.

Homosexuality everywhere, sodomy, prostitution, polygamy, obscenities, pornography, eventually pedophilia. It is not too far from pedophilia since a 14 years boy can have sex with a 50 years man which certainly is not right for the boy because he is only in the beginning of his teens and just waking up to sexuality.

It is also used to promote moonbat agenda (socialism heading to communism).

Posted by: Rémi houle | 2006-01-26 5:01:15 PM


As long as we live in a country where you can be fined a thousand bucks plus costs for referring to a third party to a private conversation as a "fifi" we are not free:

Man to pay $1,000 for hurtful 'fifi' comment
Updated Mon. Oct. 11 2004 11:30 PM ET
CTV.ca News Staff

A gay man in Montreal has been awarded $1,000 by Quebec's Human Rights Tribunal after he was called "fifi" by a used car salesman.

According to the judge's decision, the man suffered emotionally from the comments. His name cannot be released because of a publication ban.

"Calling someone a 'fifi' constitutes a scornful way of referring to homosexuals," Judge Michele Pauze concluded. "The use of this term wounds and adds to the disgrace and lack of respect of human dignity a person (can suffer), homosexuals in particular."

The decision stems from an incident in November 2001. The man was driving a hitchhiker and stopped at a used car lot when his passenger, 20-year-old Dominic Lanthier, said he was looking to buy a used vehicle.

The two men walked into a dealership in Sorel, about 70 kilometres northeast of Montreal. While he was out of the driver's earshot, used car salesman Marcel Bardier said to the hitchhiker, "Fais attention a lui, c'est un fifi (pay attention to him, he's gay)."

Lanthier told the man what the salesman said. The gay man told the judge the comments made him feel dehumanized, humiliated and degraded.

"It makes me look like a criminal," he said. "Fifi -- you just can't say that."

In addition to the $1,000 in damages, Bardier and his employer, Roger Poirier Automobil Inc., have been ordered to pay interest and expenses.

In his defence, Bardier said he was just looking out for Lanthier "like a good father" would. He said he warned him like he would his own son.

With files from the Montreal Gazette
http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/1097519961879_92929161/?hub=TopStories

Posted by: Anonalogue | 2006-01-26 5:01:43 PM


Just out of curiosity:

On the one hand there is the talk about "Judges not making policies / politics", yet when you have something like the charter who tries to spell things out it isn't okay either?

How'd you LIKE it to be? A free for all where we just do away with all those Pesky laws (reminds me of Gonzales yesterday in the States who tries to explain why not getting a warrant is okay, as it is just too darn complicated to get one and he really can't be bothered checking everything and make sure it adheres to the law), or try to get as good a law as you can.

People change, societies change, so yes Remy that also means that "Homosexuality everywhere, sodomy, prostitution, polygamy, obscenities, pornography, eventually pedophilia." eventually if society deems this as appropriate.

If you transplant someone from, say 1901s Canada into 2006s and ask them for their opinion about all of this they would most likely get a heart attack, even in smaller things, like say people who have sex before marriage etc.

What makes it really really hard for me to even consider ever voting conservative are people who drum up support for them by basically telling everybody that it has to stay as it is, that there is no change to be allowed as it is "unnatural".

Right, next.

Here's a tip: If the conservatives WANT to win a majority government next time around stop acting like you're stuck in 1899 and stop pretending that you know all the truths.

The irony in all of this is that people rather vote for someone they think is screwing them a little bit on things like Money than trusting someone who seems to want to take over their lifes and control every aspect of it.

Gay marriage won't suddenly make people gay, nor will it change your own.

Sodomy, prostitution, polygamy, obscenities, pornography, etc. do already exist and always have. If you truly believe that this is a new human condition I am sorry that you had to learn the truth.

"It is not too far from pedophilia since a 14 years boy can have sex with a 50 years man which certainly is not right for the boy because he is only in the beginning of his teens and just waking up to sexuality."

Yes, and a girl too. Contrary to believes like yours Homosexuality has pretty much nil to do with Pedophilia, it is okay to be a homophob, but don't throw that into the same argument as another hot button issue that does deserve public scrutiny and laws to curtail.

Having said that, even Pedophilia is not new to society, it was always out there, there were socities where it was "Expected" or at least permitted.

We are not inventing humanity new, we are just going in circles. Everybody can chose how they want to live their lifes so long as nobody else is being impacted (negativly) by it, and THAT is what the charter is trying to gurantee.

Posted by: Snowrunner | 2006-01-26 5:27:12 PM


Actually Snowrunner, you are incorrect when you say that "homosexuality has pretty much nil to do with pedophilia". Studies have shown that homosexuals are over 10 times mores likely to be pedophiles than heterosexuals.

The Charter has been hijacked by special interest groups who have (thus far) been financially supported by political parties who don't have the guts to fight the fight themselves....so they let the courts do it.

Posted by: John Luft | 2006-01-26 8:12:10 PM


I guess I'm not surprised you folks think laws against hate speech are an abomination - I have my doubts about their effectiveness myself -- but how come nobody's outraged that we still have criminal code provisions that punish blasphemous libel and make it an offence to execute civil process against a clergyman? Oh, I see; a law only improperly restricts speech if it stops you from saying bad things about fags? Or should your local used car salesman also be able say things like, "watch out for him, he's a jew?" or "a catholic?" or "a fundamentalist?:
I suspect I know where the libertarians come down on this issue, but what of the rest of you?
BTW, John Luft, where did you get your "studies" -- the Family Research Council? Thought so. Now go to the blackboard and write 100 times: I will not be intellectually dishonest in the cause of hate.

Posted by: truewest | 2006-01-26 8:50:19 PM


I also have read serious studies about pedophilia by independent organizations. It is a factor of 10 times alright.

But this is not the point. Those things exist from the time of the fall when Adam and Eve disobeyed. Then sin entered the world. We live in a fallen world. The things I named only make life miserable for those who go that way.

Violence, murders, lies, stealing etc.. are of the same order. In the eyes of our Creator they are sins. Sin will lead you to death. So the Lord said choose life.

On the contrary, love, honesty, charity, humbleness, integrity, respect for your parents, looking for serving others, truth (contrary of lies), caring for others, will be a sign that you choose life. Homosexuality is a deviation and should be treated as such. I fully agree with the gentleman warning a young man that there is a danger riding with a homosexual. My parents had warned me before when I was young. Whenever I got a ride with a homosexual (who we were calling fifi), I asked him to stop right away. Many times he kept driving and tried to convince me of letting him touch me.

Posted by: Rémi houle | 2006-01-26 9:48:57 PM


truewest,

I'm going to point out the obvious.

Liberals calling Harper a 'religious fundamentalist'. And no, don't try to tell anybody here that that is meant as anything but a slur.

Ed the Hun

Posted by: EdtheHun | 2006-01-26 10:36:22 PM


>How'd you LIKE it to be? A free for all where we just do away with all those Pesky laws (reminds me of Gonzales yesterday in the States who tries to explain why not getting a warrant is okay, as it is just too darn complicated to get one and he really can't be bothered checking everything and make sure it adheres to the law), or try to get as good a law as you can.

People change, societies change, so yes Remy that also means that "Homosexuality everywhere, sodomy, prostitution, polygamy, obscenities, pornography, eventually pedophilia." eventually if society deems this as appropriate.

Snowrunner, radical terrorists flying planes into buildings changes things as well, if you want to be taken seriously I would suggest you not start every post with some kind of Anti Bush, Anti American comment. Bush had every authority, granted to him by congress, with full knowledge by congress to carry out the taps under war time measures.

Do you have any idea what one of the biggest reasons is the radial Islamists have declared Jihad on the western world? It is what they perceive as a lack of morality they can see one day infecting their culture. The things you talk about above are absolutely abhorred by these people. In their world there is absolutely no room for the kind of things you speak of and you would be the first ones taken out back and shot. So perhaps you should consider that before you slam the only man and one of the few countries in the world that has the gonads to confront this kind of evil. The "evil" Bush is the only thing standing between these people and you. Think about that for a minute.


>What makes it really hard for me to even consider ever voting conservative are people who drum up support for them by basically telling everybody that it has to stay as it is, that there is no change to be allowed as it is "unnatural"<

So in your world anything goes? Society should bend and accept these things as natural? Just because its going to happen anyway? That is an extremely hard left view just as Remi has an extremely hard right view. I'm sure many conservatives and moderates would find it just as hard to vote for you. It doesn't make them wrong it just means they have a different view of the world than you.

Posted by: deepblue | 2006-01-26 11:21:04 PM


Chris Kempling, BC teacher - fired for stating "homosexuality is not something to celebrate". Would he have been fired for saying "heterosexuality is not something to celebrate"? Would he have been fired for saying "pederasty is not something to celebrate"?

Or, would he have been fired for saying "Christianity is not something to celebrate"? Certainly not. The Courts would have defended his right to criticize Christianity.

The Courts feel compelled to protect homosexuality precisely because it cannot withstand rational scrutiny. It can only be defended as "a right".

Also, there was an Ontarian who handed out tracts in front of a high school suggesting Islam was a false religion. His punishment? Court-forced indoctrination in Islam. The Islamic leaders made him read sections about how infidels are to be treated under Islam. Would he have been punished for suggesting Christianity was a false religion? I doubt it. That is precisely the teaching of Islam, which the courts forced this guy to ingest.

Freedom of speech? The Charter has become an instrument of suppression, if not outright oppression, in the hands of biased judges with radical leftist agendas.

The question is not, "who protects us from the tyranny of the majority"? It is, "who protects us from the tyranny of the elite?".

Posted by: Richard Ball | 2006-01-26 11:55:03 PM


Ed,
Calling Harper a "religious fundamentalist" may not be true, but I'm not sure it's objectively a slur. The fact is that there are people who will happily admit to being religious fundamentalists. And while it may be dirty politics and meant to convey a negative image to a certain audience, its no more so than some of the CPC distortions about the findings of the Gomery inquiry.
On the other hand, calling some a "fifi" is, I suspect, both sent and received as an insult. To take your example, it's more like calling Harper a "religious zealot."
Remi, you strike me as someone whose world view is shaped largely, if not entirely, by religion. Which do you find offensive; religious fundamentalist or religious zealot. Or are you stung by both?

Posted by: truewest | 2006-01-26 11:56:00 PM


Richard Ball,
Can't stop you from being a nasty, small-minded bigot, but maybe you can get your facts straight. Kempling wasn't fired -- he was suspended for conduct unbecoming a teacher. He was a school counsellor and it was reasonable to expect that, in that position, he would be approached by young gay students seeking counselling. His publicly-stated position -- that their sexual orientation was a disorder that could be cured -- is clearly inconsistent with that role, as are comments such as "I refuse to be a false teacher saying that promiscuity is acceptable, perversion is normal, and immorality is simply “cultural diversity” of which we should be proud."

Now, if Kempling wants to teach shop, maybe the fact that he's a bigot in his private life wouldn't matter. But this goes right to the core of his job.

AS for the ability to withstand rational scrutiny, let me tell you what else can't withstand rational scrutiny -- religious belief. but we don't want to talk about that, do we?

Posted by: truewest | 2006-01-27 12:07:16 AM


If bigot means one who is intolerant of those who differ, then there are at least two bigots posting to this sight. Was Kempling suspended "with pay"? He was not. A suspension without pay feels a lot like being fired. If homosexuality is, objectively, a disorder, then who is being more unkind -- the person that speaks the truth, or the person that confirms the person in the disordered behaviour? What would your counsel be to an alcoholic or pederast? Go on being one, because that's who you are?

Why not rationally scrutinize religious belief? Christianity has an internal logic and consistency that can never be approached by homosexual ideology which insists, on the one hand, that homosexuality is a natural state and on the other that homosexuals may want children and therefore have the right to adopt. They insist that homosexuality is natural and therefore a person can be fired -- make that suspended -- for saying it is not, on the one hand, but that transsexuals, who enjoy a presumably equally natural state, have the need for and right to a sex re-assignment operation.

Finally, you may disagree with my views, but I have re-read my post and I can detect nothing nasty about it.

And it is not homosexuals who are being hauled before human rights tribunals, fined, deprived of their livelihoods, and threatened with fines for speaking out. It is Christians.

Posted by: Richard Ball | 2006-01-27 7:13:27 AM


"Homosexuality...cannot withstand rational scrutiny"
"If homosexuality is, objectively, a disorder..."
Yup, Richard, nothing nasty about saying someone is sick and crazy. Just like there's nothing nasty about printing up stickers citing bibilical verses that some people have interpreted as calling for homosexuals to be put to death and accompanying it with an image of the outline of two men holding hands inside the familiar circle with a slash through it, which is what got the martyred Mr. Owens into trouble with the Sask. Human Rights folks.
If I was an atheist school counsellor (and, no, I'm not) and I honestly believed that all forms of religious belief are mass delusions and a form of mental illness and I write that in my local paper, promising to cure all those poor children who've been indoctrinated into this madness, how long do you figure I'd last? Likewise, if, instead of two men holding hands, Mr. Owens had put a Star of David into that circle with a slash through, do you really think we'd be having this discussion?


Posted by: truewest | 2006-01-27 8:34:42 AM


Not-even-remotely-true-west wrote:

"Likewise, if, instead of two men holding hands, Mr. Owens had put a Star of David into that circle with a slash through, do you really think we'd be having this discussion?"

Not sure about the Star of David thing, but if you pop over to the newsstand today you'll see a magnificent mockery by some rapper of a tenet of the faith of millions of Canadians right there on the front cover. I somehow suspect, however, the Saskatchewan Human Rights Star Chamber, er, Tribunal won't be entertaining complaints about it, though - religious freedom doesn't seem to be quite as sacrosanct as certain other "rights" to the fearless "progressives" on the nation's tribunals.

Here's the point you and your fellow rights fetishists seem to fail to grasp, NERTwest: the state cannot sanction thought. In the same way that the entrenchment of religious belief as a human right has not curtailed (and, ultimately, cannot curtail) those who oppose religion for whatever reason from expressing their views publicly (exhibit "A" being certain of your preceding posts), even to the point of the sort of mockery of those beliefs by the likes of Kayne West, recognition by a few judicial sanhedrin of, for example, a "right" to SS"M" will not cause the millions of Canadians who understand marriage to be inherently a heterosexual institution to think otherwise and to curtail the expression of their views.

There are, quite literally, millions of Owens and Fieldings out there - are you going to round them all up and send them to re-education camps? On second thought, maybe I'd better not ask that.

Posted by: Great Walls of Fire | 2006-01-27 10:22:25 AM


As long as the charter contains section one's ability for government and court to truncate freedoms and rights, by legal definition, the "rights" they do chose to enumerate in the document are rendered nothing more than privileges which are indulged at the whim of an aristocratic court and Cabinet.

Free men have rights, slaves are given "privileges" and until the civic responsibility retarded, politically puerile and historically myopic Canadian public take an interest in such things, autocrats on the bench and PMO will control their lives for them allowing them only the freedom they see fit. More dangerous is the current trend for the Jurocrats and autocrats to devise pseudo-constitutional and quasi-lawful parallel legal systems where charter legal rights are highly compromised. Certainly, by demonstrated record, the Patrician class jurocracy who have claimed stewardship of Canadians charter rights (privileges) believe we soiled rabble are not to even be trusted with our own property let alone free speech or equality under law.

As for Truewest's incongruent argument about rights abusing bias being the exclusive realm of some nebulous "church-state" I will remind him that what ever he is citing as a "hate crime" is neither hate ( provably not a crime or millions would be prosecuted ) nor an indictable criminal act by conventional legal definition....calling someone a name is largely a victimless crime....had any of the proponents bringing forth complaints of hate crimes been required to meet the same charter required tenets of law as they hold in criminal law courts, their cases would be dismissed as either frivolous or possibly malicious to the defendant and open to counter charges and damages. In a true actionable codified crime the state must prove physical/property damages to the "victim" ( sorry hurt feeling don’t count as a criminal breech)...had they proven loss of income or property due to defamation that may be different...then they would have to prove the offender intended to do them damage with "mens rea" ( malice of forethought)....none of the civil safety valves in Criminal law ( remember this is the charter guaranteed right to fundamental justice being breeched her...not just free speech) are not present in the quasi-legitimate star chamber tribunal of the HRC. Criminalizing “hate” is akin to legally defining “love”… we have opened ourselves to a liberty destroying mechanism which directs the law to punish some types of hate while ignoring others.…sadly we all exercise prejudice every day in the choices we make over who to associate with. The legal abomination is that only some Canadians can be “hated” where others cannot, thus breeching the presumption of section 15 equality before the law to be capricious and unreliable.

Frankly the hate law infrastructure ( HRC) is a vast abomination to the charter Guarantee of our right to due process of law....in the hate laws you can be charged and convicted of a capital crime by reverse onus, denial of the proper rules of evidence, on hearsay, without peer judgment, without the criminal defense of absence of criminal intent ( mens rea) by a complainant who needn't prove criminal damages or even face the accused in trial....Yeah, real progressiveness there...more like another patrician class Moonbat make work project in the political which hunt industry....which is a phenomenon of the modern secularist jurocratic state...seems to paralell the heretic hunts the holy Roman emperors ran on an analogous pacified, servile european peasantry who were similarly cowed and deemed not to have absolute rights by their autocrats/jurocrats of the era of Kings.

The law has been the tool of tyrants as well as saints....so called hate laws are rife tools for the tyrant.

Historic redux 500 years later with the secularist which hunters burning their political heritics on a statist legislative pyre.

Posted by: WLMackenzie redux | 2006-01-27 12:03:56 PM


Great Flaming Firewall,
First, I don't think Kanye West is mocking Jesus. He may be guilty of some sort of heresy for comparing himself to Jesus, but the man's breakthrough record invoked JC as a moral teacher and guide through the temptations and dangers of modern life. so while you may be offended by the gesture, I don't think he's trying to mock your personal saviour. (not that there's anything wrong with that: c.f. Monty Python's Life of Brian.)
Second, human rights codes and the like aren't designed to govern how you think; you're entitled to all the hateful, small-minded cracker attitudes you care to hold. They are designed to govern how you behave in public, meaning that if you take those hateful, small-minded cracker attitudes and deny someone a public service or employment or express them in some public way so as to make them the subject of hatred or derision, you may have to answer for your behaviour. In other words, you can sit around on your front porch dissing homos with all your cousins and in-laws (who can tell which is which?) all you like, but as soon as you head out and started posting "Wanted Dead or Alive" posters with the local hairdresser's picture on them or deny someone service because they look like a sodomite, you'll be held to account.
I know both the libertarians and crazy Christian on this site hate human rights tribunals -- the former because they limit freedom of contract, the latter because they limit the freedom to hate your sinful neighbours (or at least his sins) -- but really, they're just a beauracratic expression of the old maxim that your right to swing your fist ends when you make contact with someone else's nose.
In a similar vein, you and anyone else is entitled to hold whatever thoughts you like about same-sex marriage (wassamatta, you're afraid you'll go to hell if you spell it out?), just as you're free to hold whatever thoughts you like about racial or religious intermarriage, but as soon as you try to give those believes legal effect while standing in the shoes of government -- that means you marriage commissioners -- you'll run up against the Charter guarantee of equality.
Third,
I suspect my claim to being a westerner outstrips yours by several generations, since my roots here date back to well before Alberta was even a province. Unless, of course, you figure being a right-wing religious cracker is a prerequisite to that status.

Posted by: truewest | 2006-01-27 6:47:15 PM


"Homosexuality everywhere, sodomy, prostitution, polygamy, obscenities, pornography, eventually pedophilia. It is not too far from pedophilia since a 14 years boy can have sex with a 50 years man which certainly is not right for the boy because he is only in the beginning of his teens and just waking up to sexuality."

Interesting observation, Rémi. I guess sort of like Jacob in the Old Testament being about 100 years old, before he took his first wife.

So, maybe it requires a very long period of time after the "wake up." Generally speaking of course.

Remi, what do you remember about your adolescent years? You don't have to reply with details; just remember in your mind is all.

Posted by: Ian Scott | 2006-01-27 6:51:58 PM


WLMackenzie on crack. ,
If it's any consolation, I have my doubts about criminal hate crime laws, which strike me as overkill, like breaking a rat on wheel.
The rest of your post, however, is incoherent spew that shows a profound ignorance of Charter jurisprudence and only a rudimentary understanding of basic legal principles.
Put down the glass pipe, son, and try to write sentences. If you can manage that act of will, I'd be happy to discuss this further.

Posted by: truewest | 2006-01-27 6:56:16 PM


Trooooouest writes:

"...so while you may be offended by the gesture, I don't think he's trying to mock your personal saviour. (not that there's anything wrong with that: c.f. Monty Python's Life of Brian.)"

Come on, TW, it's been well entrenched by the jurisprudential giants on our appellate courts that mockery is wholly in the eye of the beholder. It matters not one whit whether you think he's mocking me or not - all that matters is what I think. It matters not that the two dozen or so Canadian gays in "commmitted relationships" (i.e. those that limit themselves to two new partners apiece during the weekly bathhouse visits) have had every substantive legal entitlement associated with marriage for years - their entirely subjective view that they were (sniff sniff) "marginalized" because in two millenia it hadn't occurred to the rest of us to call their precious form of love "marriage" is more than sufficient to rewrite the constitution to suit them.

Establishing an exciting new analogous right to exist is merely an exercise in pleading one's entirely subjective case to a sympathetic Lieberal bagman/appellate justice and glorious rights will soon fall like manna from heaven. Hence, notwithstanding statistics that establish gays have higher employment rates, higher average salaries, and greater levels of education than Canadians on average, they still represent themselves as victims of "discrimination". How do they manage this neat trick, you ask - go read the "gay" jurisprudence - as often as not, the sympathetic jurist hearing their anguished tale is so overcome by the injustice of it all, s/he doesn't even bother to require even a smidgen of actual evidence. Rather, s/he'll simply take "judicial note" that gays suffer egregious discrimination, in much the same way one can take judicial note that the sky is blue. And, of course, any attempt by any other party to such a proceeding to present such evidence is easily dealt with by dismissing such evidence as "speculative" (see Halpern v. A.G. Ontario at 134).

then this:

"(Human rights star chambers) ... are designed to govern how you behave in public, meaning that if you take those hateful, small-minded cracker attitudes and deny someone a public service or employment or express them in some public way so as to make them the subject of hatred or derision, you may have to answer for your behaviour."

See above, re: judicial notice. What plague of public service denial to gays are you referring to? Where can one find the statistics on unemployment among gays that backs up your assertion denial of employment to gays is rampant? And what exactly is this "behaviour" that subjects an identifiable group to hatred or derision? Would it be, like, I don't know, referring to them as "small minded crackers"? And whassup with that cuh-ray-zee "designed to govern how you behave in public" jazz? I thought that's what my mother was for. Ya better get your HRTs out to the next Pride parades, there TeeDub, cause if there's anything pretty much guaranteed to subject gays to "hatred or derision", it's the annual festival of feigned (or not) soddomy, fisting and the other constitutionally-entrenched proclivities that make the whole gay thang so fabulous.

then this:

"In a similar vein, you and anyone else is entitled to hold whatever thoughts you like about same-sex marriage (wassamatta, you're afraid you'll go to hell if you spell it out?), just as you're free to hold whatever thoughts you like about racial or religious intermarriage, but as soon as you try to give those believes legal effect while standing in the shoes of government -- that means you marriage commissioners -- you'll run up against the Charter guarantee of equality".

Wow, TeeWee, you're like Kreskin! "Whatever" describes EXACTLY my thoughts on racial and religious intermarriage. Sorry if that makes me slightly less small minded and cracker-like. On the other hand, I do have certain believes that cause me to think, for example, people shouldn't be able to marry more than one person, people shouldn't be able to marry their 12 year old children and people shouldn't be able to marry their faithful dog Rover. Suspect you and 99.9% of the population share them. Is it still your perverse view that almost universally held beliefs are to be swept aside in the event some nutter of a judge decides some poor shepherd who has found love in all the wrong places is a member of yet another "analogous" group entitled to Charter protection. On second thought - don't answer that.

and finally:

"I suspect my claim to being a westerner outstrips yours by several generations, since my roots here date back to well before Alberta was even a province. Unless, of course, you figure being a right-wing religious cracker is a prerequisite to that status."

Bully for you, oh westerner of truth. Can't say my prairie roots go back quite that far, but I believe I'm a direct descendant of Charlemagne, so at least I've got that going for me. No, the derision isn't directed at your genealogy, but rather your suggestion from your choice of moniker that your liberal, "progressive" viewpoint epitomizes the "true" westerner. Just keep telling yourself that, Truly, and anything else for that matter if it helps to keep you off the meds.

Posted by: Great Walls of Fire | 2006-01-27 10:58:10 PM


Great Flaming Wall,
It's nice to know you've read a little law. (So many of these discussion seem to proceed on the knowledge garnered solely from radio talk show or, God forbid, conservative blogs) It would be nicer, however, if you should show any sign of having understood it.
First, mockery is not against the law, although publicly inciting hatred is. Kanye West's crown of thorns , while perhaps crass and offensive to the very devout, doesn't suggest that Christians are less deserving of equal treatment. A sign that suggests gays should be stamped out or killed does.
Second, our courts have not said mockery is in the eye of the beholder (by which I presume you mean the complainant). Rather, discrimination is determined by an objective/subjective test: would a reasonable person in the place of the complainant feel the law treats them as less human or deserving of equal treatment.

Third, at paragraph 134 of Halpern, the Ontario court did NOT reject the AG Canada's attempt to call evidence as speculative. It pointed out that it hadn't called any "cogent evidence" and thus its claims that allowing same-sex marriage would cause heaven to fall were merely speculative.

Fourth, as I'm sure you know, mixed-race marriage were once against the law in certain jurisdictions and thought of as unnatural in others. In certain cultures, religious intermarriage is still frowned on. Some people would claim lowering those barriers have destroyed marriage. They have no evidence to support this, which makes their arguments about as valid as those against same-sex marriage. Nobody has satisfactorily explained how the fact that the lesbians down the street got hitched -- and dared to call their union marriage -- is going to send shockwaves through the marriage of the nice couple in 2B. As far as I can see, it doesn't.

Look, I get that you think gay people are promiscuous perverts who should be shunned and shamed. I have friends who think Christians are delusional bigots. I disagree with both characterizations, although, God knows, there are individuals who can be offered up as evidence is support of both positions. You think sexual fidelity is a good thing? Then perhaps you should support same-sex marriage, because that, generally, is what most gay people who get married are signing up for. Are there exceptions? Sure. But adultery and open marriages are hardly unknown in opposite sex marriages.

As for my moniker, I'm not saying that mine is the only true Western view. But for the last 20 years, the Reform party and its successors, the Byfields and their employees and folks like you have offered up this nutty idea that to be a Westerner is to be conservative, Christian and against the Charter. Indeed, the attacks on my moniker seem based on the fact that I couldn't be a true westerner if I didn't hold those views.
Given that the Liberals helped build the west and many progressive ideas first took root in the west, I don't see why I should surrender this part of the country to the mouthbreathers, ranters, small-minded bigots and nitwits who populate this site. I chose Truewest because I figured it would bring out the worst in those types. Turns out I was right.

Posted by: truewest | 2006-01-28 7:44:40 AM


truewest,
>>As for the ability to withstand rational scrutiny, let me tell you something else that can't stand up to rational scrutiny- religious belief<<

Bravo brother! Truer words have never been spoken by a man using his power of REASON and his ability to THINK!, unlike those who are forever trapped by fear, ignorance, and superstition.

Posted by: Steve | 2006-01-28 2:15:35 PM


Wow, more exegesis on the "new law" from T-west!

S/he writes:

"It's nice to know you've read a little law...It would be nicer, however, if you should show any sign of having understood it."

Right you are, Tea Dubby, and on so many levels! You're right about my having read a little law - Lord knows, it don't get much littler than what passes for human rights jurisprudence here in Trudeaupia. Also nailed the "not understanding it" part as well - I keep forgetting that the sophisticated utterings of our distinguished appellate bench are no longer founded in such quaint and archaic concepts as "evidence" and "precedent" and "stare decisis", but on far more exciting doctrines as "if it feels good, do it" and "the legal heritage of millenia can now be swept away if I'm satisfied someone's "dignity" is offended".

then this:

"Rather, discrimination is determined by an objective/subjective test: would a reasonable person in the place of the complainant feel the law treats them as less human or deserving of equal treatment."

Thanks for the patient direction, Twesty. I can never remember whether the test is "subjective/objective" , "subjective/objective/subjective", "objective/subjective/subjective, but objective only if "dignity" is involved". I also keep forgetting the Canadian courts have determined the man on the Clapham Omnibus is actually a pre-op transgendered with a tendancy toward polyamory.

then this:

"(The OCA) pointed out that it hadn't called any "cogent evidence" and thus its claims that allowing same-sex marriage would cause heaven to fall were merely speculative."

Perhaps the OCA's failure to accept the cogency of the Crown's extensive sociological and anthropological evidence might be explained by their patent lack of familiarity with the whole concept of "evidence". Their conclusion that a suggestion that the dismantling of a fundamental institution that predates the common law by centuries and upon which civilization is grounded might not be all that great a thing as "speculative" illustrates well the depth of their "reasoning".

then this:

(miscellaneous ramblings about anti-miscegenation laws and cultural prohibitions and the yoking toghether of persons of different creeds)

Best response to such tired attempts to equate the plight of twenty or so gays living in million dollar condos in downtown TO and Vancouver to segregation-era southern blacks is to quote the SCC on the essence of marriage in the Egan decision (funny how all the inferior courts that have foisted SS"M" on us seem loathe to reference the following passage from Egan, notwithstanding they're extremely fond of others):

"But the ultimate raison d'être (of marriage) transcends all of these and is firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship. In this sense, marriage is by nature heterosexual." The acceptance or rejection of inter-racial and inter-faith marriages does not affect one whit the "ultimate raison d'etre" as thus described. Defining procreation out of marriage essentially destroys it.

Then this:

"You think sexual fidelity is a good thing? Then perhaps you should support same-sex marriage, because that, generally, is what most gay people who get married are signing up for."

Really! I must say I remain mystified by the nuances of gay culture - I did not know the traditional definition of "marriage" was an impediment to gay fidelity! Learn something every day! Darn good thing I'm not on the bench, though, since I'd tend to regard the suggestion that forcing the rest of us to use the word "marriage" to describe gay couplings will cause monogamy to spread throughout the gay community like wildfire as "speculative".

and finally:

"But for the last 20 years, the Reform party and its successors, the Byfields and their employees and folks like you have offered up this nutty idea that to be a Westerner is to be conservative, Christian and against the Charter."

Well, ya got us there, Twester. Being conservative, regarding Christianity as a positive influence and acknowledging the fundamental role it has played in the establishment of our democratic and free society and being somewhat dubious about the use made of the ultimate constitutional weapon by persons whose elevation to the bench seem to strangely coincide with their involvement in the re-election campaigns of Lieberal justice ministers (you out there, Justice SG?) certainly doesn't describe all westerners - just about 98%.

It's been fun, troo, but with this post I must defer further discussions until you've finished first year.


Posted by: Great Walls of Fire | 2006-01-28 3:01:10 PM


Flaming One,

First you misstate Halpern, now you butcher Egan. Let's take this one step at a time and let's see if we can't get you out of the registry. Or the closet.

In Halpern, the Crown advanced three reasons for excluding same-sex couple from marriage:
(i) uniting the opposite sexes; (ii) encouraging the birth and raising of children of the marriage; and (iii) companionship.
You've focussed on ii, to which the OCA said:
"We fail to see how the encouragement of procreation and childrearing is a pressing and substantial objective of maintaining marriage as an exclusively heterosexual institution. Heterosexual married couples will not stop having or raising children because same-sex couples are permitted to marry. Moreover, an increasing percentage of children are being born to and raised by same-sex couples.

[122] The AGC submits that the union of two persons of the opposite sex is the only union that can “naturally” procreate. In terms of that biological reality, same-sex couples are different from opposite-sex couples. In our view, however, “natural” procreation is not a sufficiently pressing and substantial objective to justify infringing the equality rights of same-sex couples. As previously stated, same-sex couples can have children by other means, such as adoption, surrogacy and donor insemination. A law that aims to encourage only “natural” procreation ignores the fact that same-sex couples are capable of having children."

Makes sense to me. Apparently not to you.


Was there "extensive sociological and anthropological evidence" proferred by the
Crown in support of the argument that allowing same-sex marriage would destabilize the institution. Apparently not, if we are to believe the comments at para. 34. Why not? Because such evidence does not exist. It is entirely speculative. But to approach this logically, there's absolutely no reason to believe allow a same-sex couple to marry should have any impact on opposite sex couples. This isn't like changing the divorce laws, which has a direct impact on the institution by changing the terms of each and every marriage contract. This merely opened the institution to couples who were previously excluded. Again, the fact that the gay couple down the street gets married has no more to do with the stability of my marriage than the fact that the straight married guy down the street visits hookers twice a week or the fact the married woman next door to him is doing the pool boy.


Now, on to Egan. In Egan, the court had to consider two issues, as it always does in Charter litigation. First, was the unequal treatment of same-sex couples discrimination? Second, if it was discrimination, was it saved by s.1 (or as whoever named this string calls it, incorrectly, the "other notwithstanding clause").
On the first question, five judges - McLachlin, L'Heureux-Dube,Cory, Iacobucci and Sopinka -- all of whom were appointed by Brian Mulroney, agreed that it was discrimination. Four judges, including the Liberal appointee, Lamer C.J. found that it was not. Sopinka sided with the four -- the minority on the essential question of discrimination -- on the second question, whether the unequal treatment was saved by s.1.

In other words, by relying on that cherry-picked quote from Egan describing marriage as "by nature heterosexual" you have rested your argument on comments that are not only obiter, but are actually from the dissent on the point at issue. Perhaps that's why the appellate courts haven't given in the due you think it deserves.

Nice work. Did you get a law degree off the internet. Or did you go to the U of C?

As for your description of westerners as conservative Christians who hate the Charter, that may describe the folks you hang with in Cornhole, Alberta, but having travelled across the West extensively over the years, I can assure you it doesn't doesn't describe the part of the country in which I was born and raised.

Posted by: truewest | 2006-01-28 4:33:35 PM



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