Canadian Charter of Rights and Freedoms

[nw843x]

:mad:
My local MLA has said that the Canadian Charter of Rights and Freedoms is no longer needed.

"I just don't think it's a good document whatsoever myself," Pimm said in the legislature. For 99 per cent of the people out there, that document doesn't even need to exist, first off. It's only about one per cent or two per cent of the people that it's even developed for, and it's to keep the lawyers and the judges and everybody working to support the system."

:mad:

Thankfully it is just this one idiot who believes that the Charter should be scrapped. I mean it is not like the Charter really defines the type of country Canada really is or anything. :rolleyes:

quote from Victoria Times Colonist :

What the Charter does is set out the basic rights of Canadians. We can say what we think and follow our religious beliefs without government intrusion. Basic principles of justice have to be followed if the state wants to interfere with our lives.

[Gord_in_Toronto]

What a curious thing to say. And even more curious to believe.
:confused:

[FlamingMoe]

Given the activities of the Canadian Human Rights Council, one could argue the charter isn't needed because it's ineffective at keeping the government from curtailing the rights and freedoms such a charter should exist to ensure.

[Praktik]

Well, judging the charter on that narrow basis would be nearly as foolish as the viewpoint in the OP.

Read it again. It's fairly wide ranging, even if you disagree with the ills of the Canadian Human Rights Commission, the charter applies to much more than that.

Though there are some protections in common law precedent, the charter codified a series of rights much more firmly.

It was only recently, for example, that prison guards in the UK were forbidden from reading communications in and out of prisons to prisoners - sometimes this included communications with lawyers. A charter-less environment is not one I'd wanna go back to - even if worse things could happen.

[INRM]

Is the Canadian Charter of Rights and Freedoms equivalent to the US Constitution?

[Roma]

Wouldn't the Canadian Charter of Rights and Freedoms support the gender equality rights of Women's Ski Jumping in the upcoming Winter Olympics in Canada ?

Guess not since the men can have ski jumping at this year's olympics but not the women.

So what is this, just a snowy Saudi Arabia ?

[pipelineaudio]

Well, judging the charter on that narrow basis would be nearly as foolish as the viewpoint in the OP.

Read it again. It's fairly wide ranging, even if you disagree with the ills of the Canadian Human Rights Commission, the charter applies to much more than that.


I think his point was, if it cant even keep those kangaroo courts from harassing people, how can it be expected to do anything broader?

[D'rok]

Wouldn't the Canadian Charter of Rights and Freedoms support the gender equality rights of Women's Ski Jumping in the upcoming Winter Olympics in Canada ?

Guess not since the men can have ski jumping at this year's olympics but not the women.

So what is this, just a snowy Saudi Arabia ?

The Charter doesn't apply to non-government action. The IOC is not an entity of any level of government in Canada.

[Wolfman]

Wouldn't the Canadian Charter of Rights and Freedoms support the gender equality rights of Women's Ski Jumping in the upcoming Winter Olympics in Canada ?

Guess not since the men can have ski jumping at this year's olympics but not the women.

So what is this, just a snowy Saudi Arabia ?
Personally, I think that there should be women's ski jumping. The IOC's stated reason for not including it is that it doesn't meet Olympic criteria -- ie. it is not practiced by enough people in enough countries to make it a legitimate Olympic sport. And I've got to admit, from their perspective, it would be rather problematic having an event in which only a few countries were able to compete, because most of them didn't have qualified athletes.

I wish it had been included...but rather than bitching and moaning about the Charter of Rights, I'd suggest that those who support this should be spending their time to get out there and make the sport more popular! Get more women in more countries involved! Host more international competitions, with real prizes, to encourage more women to get involved.

If that were done, then the IOC would no longer have a reason not to include it.

[Puppycow]

Why ski jumping in particular? Ice hockey is also a winter olympic sport. Is there a women's event in ice hockey?

What about a men's event in syncronized swimming?

[Praktik]

Why ski jumping in particular? Ice hockey is also a winter olympic sport. Is there a women's event in ice hockey?

What about a men's event in syncronized swimming?

These trailblazers are already on it. (http://video.google.ca/videoplay?docid=4122944961711350389#)

Well... that was some decades ago - but when it happens these are the guys who will be cited as the pioneers.

[Segnosaur]

Why ski jumping in particular? Ice hockey is also a winter olympic sport. Is there a women's event in ice hockey?


Actually, yes there is a Women's Ice Hockey tournament at the Olympics. (Usually the 2 dominant teams are the Canadians and the Americans.)

http://en.wikipedia.org/wiki/Ice_hockey_at_the_Olympic_Games#Future_tournaments

[Gord_in_Toronto]

Why ski jumping in particular? Ice hockey is also a winter olympic sport. Is there a women's event in ice hockey?

What about a men's event in syncronized swimming?


Your first question -- Yes
www.vancouver2010.com/ (http://www.vancouver2010.com/)olympic-hockey/

To your second -- No
Not enough interest. ;)

[Segnosaur]

Well, judging the charter on that narrow basis would be nearly as foolish as the viewpoint in the OP.

Read it again. It's fairly wide ranging, even if you disagree with the ills of the Canadian Human Rights Commission, the charter applies to much more than that.

Though there are some protections in common law precedent, the charter codified a series of rights much more firmly.


Some of us believe the problems with the charter go a lot further than just the issues with the Human Rights Commissions.

I've complained about the charter before. I can think of a lot of problems with it. For example:

- At the beginning, it acknowledges the 'supremacy of god'. Now, that particular phrase doesn't hold any sort of legal weight. However, as an atheist I'm a little annoyed that it contains that phrase.

- The charter contains no protection for property rights

- The charter contains the 'notwithstanding' clause, which allows governments to pass laws that violate certain rights if they choose

- Contains provisions for rights to be overridden if its in the 'public good'. (That's basically how the Human Rights Commissions and Hate Speech Laws work... technically, its a violation of the right to free speech, but the constitution allows such violations.)


It was only recently, for example, that prison guards in the UK were forbidden from reading communications in and out of prisons to prisoners - sometimes this included communications with lawyers. A charter-less environment is not one I'd wanna go back to - even if worse things could happen.
Just out of curiosity, where is the phrase in the charter and/or constitution that guarantees private communication between prisoners and lawyers? I know its got sections relating to speedy trials, having access to lawyers, etc. but I can't find anything about private communications. (Might be there, but I might have overlooked it.)

Of course, if such a provision isn't there, then the charter itself isn't of much use in protecting the right to private communication, is it.

[Praktik]

Ya not sure where and not sure I feel like looking it up but I expect it would be included under the right to a fair trial and unreasonable search and seizure.

The point is that the opening of mail only became an issue once the EU charter came into force and it was litigated on that basis since there was nothing in common law to prevent it.

The charter ain't perfect (see NAPE case), the only reason we have a notwithstanding clause is because we still have Quebec - yet another reason to say "see ya!" when they get back on the separation bandwagon!


I'd still prefer to have it and have the kinks worked out over the years with more charter jurisprudence than to not have one.

[D'rok]

Some of us believe the problems with the charter go a lot further than just the issues with the Human Rights Commissions.

I've complained about the charter before. I can think of a lot of problems with it. For example:

- At the beginning, it acknowledges the 'supremacy of god'. Now, that particular phrase doesn't hold any sort of legal weight. However, as an atheist I'm a little annoyed that it contains that phrase.

I don't like that either, but it is unlikely to ever affect interpretation of the Charter.

- The charter contains no protection for property rightsThis is a complex question and was hotly debated when the Charter was being drafted. Basically, there are two good reasons for not explicitly including private property rights:

1. Aboriginal Rights - Aboriginal land claims do not fit into the liberal "bill of rights" framework, nor are they compatible with the standard Locke-liberal notion of private property (control over traditional/ancestral territory vs. outright ownership). Aboriginal peoples (mostly) never surrendered their sovereignty to the Crown and the treaties that pre-date confederation are nation to nation agreements that acknowledge this. Entrenching liberal property rights into the Charter would further disenfranchise First Nations peoples.

2. Property is arguably a second-order right that flows from other first-order rights (like s. 7 liberty rights and s. 15 equality rights). Libertarians would scream blue murder at this idea, but it has traction in the Canadian zeitgeist. We've always had communitarian notions mixed in with our liberalism.

Also, property and civil rights are provincial matters. Provincial legislation and the common law already offer significant protection for private property.

- The charter contains the 'notwithstanding' clause, which allows governments to pass laws that violate certain rights if they chooseHas almost never been used and is likely politically impossible to use. Also, it was an important compromise at the time of drafting because it injects some degree of Parliamentary Supremacy (which was our tradition of governance before the Charter) into our constitutional order. Parliament is made up of our elected representatives, after all. In a democracy, shouldn't the final word go to the legislature, not the judiciary? (That's how the argument goes at least).

- Contains provisions for rights to be overridden if its in the 'public good'. This is simply an explicit acknowledgment of what de facto happens everywhere bills of rights exist. All governments have to abrogate rights on a regular basis. How could we have prisons otherwise? How could we be arrested? How could we be taxed? The list is endless. The provisions in the Charter are actually a check on this kind of activity, because the tests that the govt has to meet before it can abrogate a right are clearly laid out and they are reasonable and quite stringent. In the USA, where no such provisions exist, the Courts have had to create them.

(That's basically how the Human Rights Commissions and Hate Speech Laws work... technically, its a violation of the right to free speech, but the constitution allows such violations.)It's important to remember that Human Rights Commissions exist to field private sector discrimination complaints. In other words, the Charter does not directly apply because, when a commission hears a complaint, the alleged rights violation has occurred between two private individuals or entities, not between a citizen or group of citizens and the government. The Charter is engaged on a meta-level regarding the Provincial Human Rights Acts by which the HRCs are empowered. Those Acts are open to Charter challenges (remember Vriend?)

I began life as a Charter sceptic, and I still am a little bit, but I've more or less come around after actually studying Charter jurisprudence. We're better off with it, warts and all. It really does constrain what the government can and can't do - constraints that were not properly in force pre-Charter.

[D'rok]

I'd still prefer to have it and have the kinks worked out over the years with more charter jurisprudence than to not have one.

Exactly!

[Segnosaur]

On guaranteed lawyer-client privacy...

Ya not sure where and not sure I feel like looking it up but I expect it would be included under the right to a fair trial and unreasonable search and seizure.

Well, I'll wait for confirmation. Until then, I'll be on the fence. (Like I said, quite possible that I overlooked something, but I'd still like to see proof.)

The point is that the opening of mail only became an issue once the EU charter came into force and it was litigated on that basis since there was nothing in common law to prevent it.

But that doesn't prove the Canadian charter is any good... It just that the rights under UK law were less than that of the EU. Maybe Canada would have been better off if we had adopted the EU charter rather than making our own...


The charter ain't perfect (see NAPE case), the only reason we have a notwithstanding clause is because we still have Quebec - yet another reason to say "see ya!" when they get back on the separation bandwagon!

Actually, I thought it was actually the western premiers who originally wanted the notwithstanding clause (perhaps worried that they'd have a bunch of laws that would need to be unexpectedly rewritten once the charter came into effect.)

Of course, to me, the reason its in there is irrelevant. I would have preferred they come up with a flawless charter, and if they couldn't, then drop the issue (rather than pass a half-ass charter with incomplete protections).

I'd still prefer to have it and have the kinks worked out over the years with more charter jurisprudence than to not have one.

Problem is, once its already in place, it can become a major hassle to try to work out the kinks. (And remember, even before we had our own charter, its not like people were rounded up and executed in the middle of the night... even if you are right about the whole 'Lawyer-criminal privacy" issue, most of our freedoms were still pretty secure.

[Praktik]

The whole example of the UK is kind of its separate thing: showing the kind of environment that exists with only common law precedent as your basis, and the good things that can happen when a charter of sorts is imposed on top.

So I'm sure there is an analogous situation you can find in Canadian history of law i just used the UK as kind of an example... I'm not sure if there was a case decided after we left the UK that may very well have provided a protection from that kind of thing happening in Canadian common law jurisprudence prior to the charter. The point remains that the addition of a charter to the UK helped address some weaknesses in the common law system.

D'Rok has a good post where he has had the time to address your other concerns more fully and I endorse his opinions...

[Segnosaur]

- The charter contains no protection for property rights
This is a complex question and was hotly debated when the Charter was being drafted. Basically, there are two good reasons for not explicitly including private property rights:

1. Aboriginal Rights

I agree that aboriginal rights do make things a bit trickier. But supposedly the people coming up with the Charter had big brains. I figure they'd be able to code it in such a way that respects both Aboriginal rights, and the rights of the larger non-aboriginal population.

2. Property is arguably a second-order right that flows from other first-order rights (like s. 7 liberty rights and s. 15 equality rights). Libertarians would scream blue murder at this idea, but it has traction in the Canadian zeitgeist. We've always had communitarian notions mixed in with our liberalism.

I don't think Canadian society has ever been big on the idea of property rights. Even though some could argue that it stems from other rights, that's certainly not an iron-clad guarantee, especially if there are plenty of presidents that go against the notion of property rights.

If its a right, I think it should be spelled out explicitly.
Also, property and civil rights are provincial matters. Provincial legislation and the common law already offer significant protection for private property.

Well, property rights are not purely provincial matters... after all, the federal government has expropriated land before for its own uses.

And yes, there is/was some protection for private property without the constitution. But given the presidents, I'd rather that protection be a bit more guaranteed. (Besides, if you're saying we don't need property rights because we're protected by other laws, then why did we need to bring in the Canadian constitution/charter of rights, because we already had protection for most of our rights already.)

- The charter contains the 'notwithstanding' clause, which allows governments to pass laws that violate certain rights if they choose

Has almost never been used and is likely politically impossible to use.

However, the fact that it does exist is the issue. I'd rather not stake my personal rights on what is "likely" politically impossible. (Tell that to Anglophones in Quebec.)

To be honest, I'm not sure why you think its "likely politically impossible". All you would need is some issue for which there is overwhelming popular support for restricting certain rights.

Also, it was an important compromise at the time of drafting because it injects some degree of Parliamentary Supremacy (which was our tradition of governance before the Charter) into our constitutional order. Parliament is made up of our elected representatives, after all. In a democracy, shouldn't the final word go to the legislature, not the judiciary? (That's how the argument goes at least).

Yes, that may be why it was put in there, but that doesn't mean that it's right.

In my opinion, one of the goals of the charter should be to prevent individuals from having rights removed due to the wishes of the majority (i.e. tyranny of the masses).

[quote]- Contains provisions for rights to be overridden if its in the 'public good'.
This is simply an explicit acknowledgment of what de facto happens everywhere bills of rights exist. All governments have to abrogate rights on a regular basis. How could we have prisons otherwise? How could we be arrested?
I think the fact that prisons exist is probably because the charter of rights actually discusses issues of crime.
How could we be taxed? The list is endless. The provisions in the Charter are actually a check on this kind of activity, because the tests that the govt has to meet before it can abrogate a right are clearly laid out and they are reasonable and quite stringent.
Not sure what you mean by the tests allowing the government to override our freedoms for the public good are 'stringent'. Various presidents suggest otherwise.

It's important to remember that Human Rights Commissions exist to field private sector discrimination complaints. In other words, the Charter does not directly apply because, when a commission hears a complaint, the alleged rights violation has occurred between two private individuals or entities, not between a citizen or group of citizens and the government.
First of all, you are right in that human rights commissions deal with complaints between private individuals/entities. However, those complaints do not necessarily exist in a vacuum. I rather suspect that many complaints, while between private individuals, deal at least in part with laws that were passed by the government.

Secondly, Human Rights Commissions are not the only forum for these issues. Consider the case of the Little Sister's Book Store, a gay/lesbian store in BC that regularly had its shipments confiscated (even though many of their items were available through other sources). The supreme court argued that even though there were some procedural problems, the idea of seizing material was justified under the constitution.

[quixotecoyote]

The word you're looking for is 'precedents.'

[D'rok]

To be honest, I'm not sure why you think its "likely politically impossible". All you would need is some issue for which there is overwhelming popular support for restricting certain rights.

Simply because, in the 27 years that the Charter has been in place, no government has had the courage to use it on a controversial issue, or on practically any issue at all. The metrics for doing so come election time are just not good. I can't imagine overwhelming popular support for ignoring human rights.

Also, don't forget that the notwithstanding clause only applies to certain rights, not the whole Charter.

Not sure what you mean by the tests allowing the government to override our freedoms for the public good are 'stringent'. Various presidents suggest otherwise.The tests flow from s. 1 and s. 7. Section 1 is referred to as the Oakes test because it was authoritatively dealt with in that case. The Oakes test sets out the criteria that apply in "a free and democratic society". Broadly speaking, the govt must have a "pressing and substantial objective" and the means deployed must be rationally connected to and proportional to the goal (i.e., the deleterious effects of whatever the legislation is rights-wise can't outweigh the salutory nature of the goal). It is a tough test to meet, particularly the proportionality part. Legislation frequently fails that part of the test.

The s. 7 test deals with the "principles of fundamental justice" which must be respected if the govt is to pass legislation that has some effect on the rights in that section. It's here that a lot of common law-type protections get imported into the constitution as principles of fundamental justice. Also, even if legislation passes the s. 7 test, it still has to pass the Oakes test.



Secondly, Human Rights Commissions are not the only forum for these issues. Consider the case of the Little Sister's Book Store, a gay/lesbian store in BC that regularly had its shipments confiscated (even though many of their items were available through other sources). The supreme court argued that even though there were some procedural problems, the idea of seizing material was justified under the constitution.That was a Charter case between the book store and the federal govt. It was not between two private sector litigants. The only forum for that issue is the courts re: the Charter.

Although the result in that case was poor in some respects, it also stands for the principle that freedom of expression includes the right to receive expressive material, not just to create/disseminate it. That is a really important expansion of s. 2(b).

[Praktik]

ha - I brought up the oakes test on another board. There's a common misconception among laypeople that the rights of the charter are absolute.

In discussing bill C-6 this person asserted it clearly violated certain sections of the charter.

Of course, certain abrogations of rights may be upheld if they pass the Oakes test. Ended up having to launch into a full description of that to support myself...

[D'rok]

ha - I brought up the oakes test on another board. There's a common misconception among laypeople that the rights of the charter are absolute.

In discussing bill C-6 this person asserted it clearly violated certain sections of the charter.

Of course, certain abrogations of rights may be upheld if they pass the Oakes test. Ended up having to launch into a full description of that to support myself...

Yeah. On the flip side, there's also frequently an OMG fascism! response when people (not you Seg) hear about it. What they usually fail to understand is that it is a hoop that the govt has to jump through in order to pass certain otherwise infringing pieces of legislation. And the courts get to decide whether or not the govt jumped through it properly. In other words, it's a constraint and a restraint as much as it is an enabling mechanism.

[D'rok]

Just to expand a bit on the Little Sisters case. That case is a perfect example of why we're better off with the Charter. Here's why:

In short, the SCC ruled that the Charter does not prevent the govt from making laws prohibiting the importation of obscenity nor does it prevent Canada Customs from enforcing those laws. What the SCC said the Charter does do is to require Canada Customs to enforce those laws according to the correct standard for obscenity and in a non-discriminatory fashion. The SCC also said that this is precisely what Canada Customs didn't do with respect to Little Sisters.

IMO the SCC dropped the ball when it came to the whole issue of standards of obscenity and whether or not grunts at the border should be making judgments about potentially obscene material. Still, the case did solidify the proposition that the scope of freedom of expression includes the right to receive expressive material (including the right to import it), and it smacked down Canada Customs for its discriminatory application of the obscenity laws. These are good things. But what is really germane is what the case reveals about the Charter generally.

Imagine you are Little Sisters and there is no Charter. You try to import some gay erotica. The grunts at Canada Customs think it's obscene and seize it. The RCMP investigate and charges you. In your defence, you appeal to...well...not much! There is no constitutional issue, because border matters are clearly intra vires the federal government. Your best bet is to drudge up some common law defence and hope you get a sympathetic judge.

The fact that Little Sisters can appeal to the Charter for a remedy is a huge improvement on this state of affairs. Even though there is a lot of room to criticize the decision in this particular case, it is far and away a better result than if there was no Charter remedy at all. The net result of the case, while flawed in some respects, was an expanded right to freedom of expression in Canada. It is something to build on.

[Gord_in_Toronto]

The trouble with a charter cast in granite is that times do change and that rights and responsibilities are not intrinsic properties built into the fabric of the Universe.

See the USA for example as to where this can lead. :duck:

[Praktik]

Well, as charter jurisprudence develops over time, the Charter does in fact change.

[Segnosaur]

To be honest, I'm not sure why you think its "likely politically impossible". All you would need is some issue for which there is overwhelming popular support for restricting certain rights.
Simply because, in the 27 years that the Charter has been in place, no government has had the courage to use it on a controversial issue, or on practically any issue at all. The metrics for doing so come election time are just not good.

Still not sure why you're claiming that. Remember, the notwithstanding clause has been used by Quebec in order to implement its anti-free-speech language laws. Not only was there no significant backlash at the time, those same laws (in one form or another) have been in effect through multiple governments (both PQ and Liberals).
I can't imagine overwhelming popular support for ignoring human rights.
First of all, you wouldn't necessarily need 'overwhelming' popular support. Remember, a party can get into power with ~40% of the popular vote. Any use of the 'notwithstanding' clause would only have to appeal to a party's base support. (There was a real risk that the conservatives were going to use the clause if they brought in anti-same-sex marriage laws.)
Also, don't forget that the notwithstanding clause only applies to certain rights, not the whole Charter.
But the fact that it exists at all, for at least some of our freedoms, is probably not a "good thing".

The tests flow from s. 1 and s. 7. Section 1 is referred to as the Oakes test because it was authoritatively dealt with in that case. The Oakes test sets out the criteria that apply in "a free and democratic society". Broadly speaking, the govt must have a "pressing and substantial objective" and the means deployed must be rationally connected to and proportional to the goal (i.e., the deleterious effects of whatever the legislation is rights-wise can't outweigh the salutory nature of the goal).
The problem is that a determination of what meats the Oakes test is still decided upon by Supreme court justices, who, while I am sure are quite intelligent/skilled, still bring certain biases with them. I can't necessarily fault them for that (they are, after all, human, and there are no easy answers to a lot of these things.)

I would just rather have the bar set a little higher when it comes to determining when there is a "pressing and substantial objective" when laws are enacted that affect our rights. (Our current hate speech laws and obscenity laws are my prime example.)

Secondly, Human Rights Commissions are not the only forum for these issues. Consider the case of the Little Sister's Book Store, a gay/lesbian store in BC that regularly had its shipments confiscated (even though many of their items were available through other sources). The supreme court argued that even though there were some procedural problems, the idea of seizing material was justified under the constitution.
That was a Charter case between the book store and the federal govt. It was not between two private sector litigants. The only forum for that issue is the courts re: the Charter.
I think we're getting a bit off topic here when we're dealing with the nature of the forums and littigants (courts in the little sister's bookstore case, Human Rights Commissions in the recent hate-speech cases). Although one case involved only private individuals and the other involved a private organization vs. the state, the underlying issue is still the nature of the laws themselves.... i.e. do they allow the violation of the right of free speech, regardless of who is doing the arguing and where.

Although the result in that case was poor in some respects, it also stands for the principle that freedom of expression includes the right to receive expressive material, not just to create/disseminate it. That is a really important expansion of s. 2(b).
For some reason, it seems like a distinction that I'm not totally happy with. If you can't create/disseminate questionable material, how are others to receive it?

Just to expand a bit on the Little Sisters case. That case is a perfect example of why we're better off with the Charter. Here's why:
...
Imagine you are Little Sisters and there is no Charter. You try to import some gay erotica. The grunts at Canada Customs think it's obscene and seize it. The RCMP investigate and charges you. In your defence, you appeal to...well...not much! There is no constitutional issue, because border matters are clearly intra vires the federal government. Your best bet is to drudge up some common law defence and hope you get a sympathetic judge.

The fact that Little Sisters can appeal to the Charter for a remedy is a huge improvement on this state of affairs.

Here I have to disagree...

I know its impossible to prove such a "what if..." scenario. However, Canada also had a bill of rights that was passed when Dief was the Prime Minister. Although the Bill of Rights wasn't as detailed as the current charter, it did have a sections specifically protecting equality and speech:

(a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law;
...
(d) freedom of speech;

I believe that, had we not had the Charter, that the Little Sister's case could have been brought forward in the courts based on the Bill of Rights. (Actually, in a way, the bill of rights had a protection the Charter did not, since it does mention property.)

[D'rok]

Still not sure why you're claiming that. Remember, the notwithstanding clause has been used by Quebec in order to implement its anti-free-speech language laws. Not only was there no significant backlash at the time, those same laws (in one form or another) have been in effect through multiple governments (both PQ and Liberals).

First of all, you wouldn't necessarily need 'overwhelming' popular support. Remember, a party can get into power with ~40% of the popular vote. Any use of the 'notwithstanding' clause would only have to appeal to a party's base support. (There was a real risk that the conservatives were going to use the clause if they brought in anti-same-sex marriage laws.)

But the fact that it exists at all, for at least some of our freedoms, is probably not a "good thing".

Yeah, you're right about the Quebec thing, but in general we'll have to agree to disagree on this.


The problem is that a determination of what meats the Oakes test is still decided upon by Supreme court justices, who, while I am sure are quite intelligent/skilled, still bring certain biases with them. I can't necessarily fault them for that (they are, after all, human, and there are no easy answers to a lot of these things.)

I would just rather have the bar set a little higher when it comes to determining when there is a "pressing and substantial objective" when laws are enacted that affect our rights. (Our current hate speech laws and obscenity laws are my prime example.) I'm with you on speech restrictions. I want those rights to be as close to inviolable as reasonably possible. In general, the SCC's approach is not bad. Every conceivable form of expression other than acts of violence is covered by s. 2(b) and anything the govt does to restrict expression is a prima facie violation which triggers a s. 1 analysis. (In other words, most of the time, the court doesn't have to determine if a s.2(b) violation has occurred - that part of the analysis is automatic). It doesn't always work out in practice, but the approach is good. Failures occur mostly at the HRC and tribunal level.

Also, generally speaking, the bar is quite high when it comes to the Oakes test (s. 1) and the Principles of Fundamental Justice test (s. 7). For a good example, check out the Morgentaler case, where the govt failed both tests.

http://www.canlii.org/en/ca/scc/doc/1988/1988canlii90/1988canlii90.html


I think we're getting a bit off topic here when we're dealing with the nature of the forums and littigants (courts in the little sister's bookstore case, Human Rights Commissions in the recent hate-speech cases). Although one case involved only private individuals and the other involved a private organization vs. the state, the underlying issue is still the nature of the laws themselves.... i.e. do they allow the violation of the right of free speech, regardless of who is doing the arguing and where.No right is absolute. The question is always how to strike the appropriate balance.


For some reason, it seems like a distinction that I'm not totally happy with. If you can't create/disseminate questionable material, how are others to receive it?The point is that your Charter rights have been violated if the govt prevents you from receiving questionable material just as if they prevented you from creating/disseminating it.


Here I have to disagree...

I know its impossible to prove such a "what if..." scenario. However, Canada also had a bill of rights that was passed when Dief was the Prime Minister. Although the Bill of Rights wasn't as detailed as the current charter, it did have a sections specifically protecting equality and speech:

(a) the right of the individual to life, liberty, security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law;
(b) the right of the individual to equality before the law and the protection of the law;
...
(d) freedom of speech;

I believe that, had we not had the Charter, that the Little Sister's case could have been brought forward in the courts based on the Bill of Rights. (Actually, in a way, the bill of rights had a protection the Charter did not, since it does mention property.)Unfortunately, the Bill of Rights is just an ordinary statute with no constitutional force. For that reason, the interpretive approach taken by the courts is a "frozen rights" approach. This means that, because the statute is not constitutional, the court did/does not feel empowered to do much with it. It interprets the rights therein to be "frozen in time". In other words, they only represent rights as already enacted. This puts it better than I can:

The problem faced by the judiciary was how, in a system of legislative supremacy, an ordinary statute like the Bill of Rights could take precedence over other ordinary statutes, particularly those enacted after it. Indeed, the judiciary made it quite clear that it felt a great deal of uncertainty about applying the statute because it did not constitute a constitutional mandate to make judicial decisions with the effect of limiting the traditional sovereignty of Parliament. In fact, with only one notable exception, the courts consistently rendered the Bill of Rights ineffective in the promotion and protection of human rights in Canada. Often, it was determined that the Bill of Rights did not apply to a particular case on the basis that the rights it could protect were only those that had existed at the time of its enactment. In other words, the courts gave an extremely narrow interpretation, often referred to as the “frozen rights concept,” to the rights set out in the Bill of Rights. In some cases, the courts simply refused to find any inconsistency between its provisions and discriminatory provisions in federal legislation, particularly as the legislation at issue was usually based on a valid federal objective with which the courts felt they had no right to interfere.

http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/BP/bp279-e.htm#THE%20BILL
The failure of the Bill of Rights is why we have the Charter.

[Darth Rotor]

The failure of the Bill of Rights is why we have the Charter.
WTF?

How do you rate the Bill of Rights a failure? :confused:

[Praktik]

it was our Bill of Rights yankee dog!

Not YOUR precious Bill of Rights!

Geez Louise... I remember at this scouting jamboree a bunch of 'mericans came up.

They were handing out copies of the bill of rights and the declaration to us heathen canucks.

We urinated on their tents.

[Praktik]

http://en.wikipedia.org/wiki/Canadian_bill_of_rights

[Darat]

:mad:
My local MLA has said that the Canadian Charter of Rights and Freedoms is no longer needed.



:mad:

Thankfully it is just this one idiot who believes that the Charter should be scrapped. I mean it is not like the Charter really defines the type of country Canada really is or anything. :rolleyes:

quote from Victoria Times Colonist :

We have a similar thing that gets aired over here from time to time about the fact that we incorporated the European Convention on Human Rights into UK law back in the 90s. Of course over here the objections are even more asinine since the UK was a founding member of the convention and pretty much it can be claimed that we drafted it and it follows the British idea of human rights.. oh and of course we signed up to it in the 1950s... But never let facts stand in the way of a diatribe about how people don't need rights!

[D'rok]

it was our Bill of Rights yankee dog!

Not YOUR precious Bill of Rights!

Geez Louise... I remember at this scouting jamboree a bunch of 'mericans came up.

They were handing out copies of the bill of rights and the declaration to us heathen canucks.

We urinated on their tents.
Well done, I say!

[Gord_in_Toronto]

it was our Bill of Rights yankee dog!

Not YOUR precious Bill of Rights!

Geez Louise... I remember at this scouting jamboree a bunch of 'mericans came up.

They were handing out copies of the bill of rights and the declaration to us heathen canucks.

We urinated on their tents.

What? You wasted pee on 'mericans? Give back your Canadian Tire card. :mad:

[Praktik]

lol ya... well in hindsight it was kind of mean... But in my defense we were around 13 or 14 years old, and in a place far away from home where acting up comes a bit more naturally..;)

In truth we actually saved up a lot of urine in a series of 2 litre bottles, then unleashed them on their tents so the volume per tent, we only picked a few, was quite high. When I thought about it years later I realized there was enough to really soak through the tent and get inside. Which probably wasn't fun at all.

We probably wouldn't have even come up with the idea if it wasn't for what felt like proselytizing on the part of the American contingent we targeted. Something almost condescending about it - even though they were totally well meaning. I guess it made us feel like they were enlightening the ignorant on the glories we don't have in the Great White North.

Anyway, probably highlights a big difference between Canadian and American Scouts. We did have to say a pledge to the queen but ours seems to me to be a lot more focused on the outdoors and orienteering and so on - while the Americans have that they seem to be permeated with a lot more christianity and nationalism than Canadian scouts. Up here there is no controversy about gay leaders for example..

[D'rok]

I've probably stated too strongly the difference between rights protections pre and post-Charter. It's true that the Bill of Rights was a failure, but that was never the source for rights in Canada. Rights were protected pre-Charter, just not explicitly. They were imported through the common law and our "constitution similar in principle to the United Kingdom" (Constitution Act, 1867).

Also:

http://en.wikipedia.org/wiki/Implied_Bill_of_Rights

[INRM]

This is pretty outrageous, they want to essentially dissolve their Constitution and Bill of Rights.

[Gord_in_Toronto]

This is pretty outrageous, they want to essentially dissolve their Constitution and Bill of Rights.

If if it happens, what next? A constitution is only a human document and is only as useful as society is prepared to support it.

I have asked in the past, "Would you prefer to live in the Kingdom of Denmark or the People's Democratic Republic of Albania?" The Albanian constitution read an awful lot better.

[INRM]

Gord in Toronto,

Well it has to be supported by the people and the courts to be effective

[Gord_in_Toronto]

Gord in Toronto,

Well it has to be supported by the people and the courts to be effective


Well of course it does.