Canada: The Charter of Rights and Freedoms
 

I am posting this here instead of Tilted Politics, because frankly, that is obviously an American oriented board, and anything there is pretty much assumed to become engrossed in whatever the daily liberal/conservative democrat/republican issue is of the day..

Originally we had the Canadian Bill of Rights.. This was adapted and superceded by the Charter of Rights and Freedoms.

Do you feel that the document has the power it requires? Do you feel it even impacts us today? Do you even know what it is?

Here's a snip of the original document that I love..

free to speak without fear,
free to worship in my own way,
free to stand for what I think right,
free to oppose what I believe wrong,
or free to choose those
who shall govern my country.
This heritage of freedom
I pledge to uphold
for myself and all mankind."

From the Canadian Bill of Rights,
July 1, 1960.

Ain't nothing wrong with the Charter as it stands today. It's as good, if not better than what the Americans have, and has stood the test of time over the past 20+ years. It probably still has a few wrinkles to iron out here and there, especially as standards of society change, but still, it manages to balance that fine line between upholding law and order, and giving the freedom to do what you want without government reprecussion.

wow spoken more eloquently than I ever could. Kudos quadraton, that was great.

I personally am satisfied with the charter of rights and freedoms, not because I have read it all and understand the nuances of the article, but because I have enough confidence in our government that this document was made with the purpose of governing our society in the best manner possible.

did that come out right?

The only gripe I have is with the notwithstanding clause... it just doesn't make sense to have something that can bypass our basic freedoms

Came out perfectly.

I'm not aware of this notwithstanding clause.. Can you explain what you know of it?

I feel more free then i think the americans are

The Notwithstanding Clause

The "override power" or "notwithstanding clause" is the name of the legislative power under section 33 of the Canadian Charter of Rights and Freedoms in the Constitution of Canada.

The federal Parliament or a provincial legislature may declare a law or part of a law to apply temporarily "notwithstanding" certain sections of the Charter. Essentially, using it to negate any federal/provincial or judicial review by overriding the Charter protections for a limited period of time. This is done by including a section in the law clearly specifying which rights have been overridden.

Such a declaration lapses after five years or a lesser time specified in the clause, although it may be re-enacted indefinitely. The rationale behind having a five-year expiry date is that it is also the maximum amount of time that the Parliament or legislature may sit before an election must be called. Therefore, if the people wish for the law to be repealed they have the right to elect representatives that will carry out the wish of the electorate. Although, if fundamental rights?such as freedom of conscience and freedom of religion; freedom of thought, belief, opinion and freedom of expression, including freedom of the press (which includes other media of communication); freedom of peaceful assembly; and freedom of association?can be overridden, then this raises the question of whether or not the people do have the right to do so. However scholars of British constitutional law, upon which much Canadian constitutional jurisprudence is based, stress that if the fundamental jus commune or law of the land was to be overridden in such a cavalier way by a Parliament exercising such arbitrary parliamentary supremacy the people would have the ability to revolt against their government much as the rebels revolted against the Crown in the thirteen colonies. This is the kind of thinking used in the reasoning of jurists who developed the theory of the Implied Bill of Rights before the adoption of the Charter of Rights and Freedoms.

The inclusion of the clause was a compromise reached during the debate over the new constitution in the early 1980s. Prime Minister Trudeau was originally strongly opposed to including the clause, but eventually agreed under pressure from the provincial premiers.

The use of this override clause is most noted for its inclusion in the Quebec language law known as Bill 101 after sections of those laws were found unconstitutional by the Supreme Court of Canada in Ford v. Quebec (A.G.). On December 21, 1989 the Premier of the Province of Quebec employed the "notwithstanding clause" to override freedom of expression (section 2b), and freedom of equality (section 15). This allowed the Province of Quebec to continue the restriction against the posting of any commercial signs in languages other than French. In 1993, after the law was criticized by the United Nations Human Rights Committee, the Bourassa government rewrote the law and the notwithstanding clause was removed.

The only other use of the notwithstanding clause was with respect to a labour law passed by the province of Saskatchewan. In this case the law was later ruled to be consistent with the Charter of Rights and Freedoms, making the use of the clause unnecessary.

Ralph Klein, Premier of the province of Alberta has declared that he will use the notwithstanding clause to prevent any Supreme Court of Canada order that allows same-sex marriage. However, this may be mere political posturing. The issues placed before the Supreme Court by the Chrétien government are whether a proposed change in the definition of marriage is legal under the Charter and to confirm that the federal government has the exclusive power to define what marriage means in Canada. Its difficult to imagine how the notwithstanding clause could be used in this case.

Currently there are no laws in Canada that have been issued using the notwithstanding clause. The use of this clause has come to be seen as an increasingly dangerous political option for governments as the Charter gains more respect with age. Although the Charter was originally greeted with great indifference, the Canadian electorate adopted it as it own once it saw the Charter in action. Polls of the electorate tend to promise a painful political death to politicians or even complete political parties that mess with their Charter. Nevertheless, threats to invoke the notwithstanding clause are common as they are seen as a symbol of protecting local cultural values against the dominance of Ottawa and Central Canada.

Some legal scholars have argued the clause may even become a lapsed power if not used, and will be excluded from use by the large part of Canada's constitution which is unwritten.

Noted right-wing jurist and nominee to the United States Supreme Court, Robert Bork, has advocated for the adoption of a similar clause in the Constitution of the United States.

____________________________________

As the article mentions, when Trudeau was repatriating the Constitution and creating the Charter he reached an impasse with the Premieres... He finally acquiesced to their demand for a "notwithstanding clause"...

Trudeau didn't want the clause for the obvious reason that it kind of made the Charter pointless if a Province could just override Federal law.


Notwithstanding the Notwithstanding Clause, I am extremely proud of our Charter of Rights and Freedoms.

Thanks for the info. Any time I can learn more about our government the better..

I seem to recall the question being raised during the recent federal elections about the not-withstanding clause being used by the Liberals should they end up in a minority government. From what I remember, Martin flat out refused to implement it, stating the party with the most seats should rule.

Is this right? I think I was politically asleep that day, so I don't remember the finer details.

I know what it was, although i learned a little about times it was implemented that i didn't know about

I'm just dumbfounded as to why it is there.... it just makes no sense that there should be a way to bypass our freedoms

Didn't Klein use the notwithstanding clause to avoid joining the kyoto protocol?

Isn't Klein a conservative moron?

The things he does just make me shake my head, then i get neck cramps.... its all Klein's fault

There is one right which isn't included under the notwithstanding clause.

The right to vote.

I think it is an interesting feature of our Bill of Rights. Government exists and has power with and from the consent of the govorned, not because of any pieces of paper.

The American constitution and bill of rights, with all it's apparent immutability and strong-sounding rhetoric, gets interprited by judges who claim it "isn't a suicide pact" and it is limited by "legitimate government interest" and "community standards".

In Canada, theoretically, that isn't needed. If we decide that pornography is so horrible that we need to allow legal linchings of anyone who dares produce it, the legislature can pass the law and the judges can enforce it without marring the constitution and corrupting it's words.

Remember, the anti-drug laws are justified by the interstate commerce clause of the US constitution. You grow weed in your basement for personal use, and because weed can be involved in inter-state commerce the federal government can prosecute you and your possessions.

Canada's government system is so reliant on the consent and well wishes of those in it already even without the charter, quite explicitly. The Govorner General and the Queen have amazing amounts of anti-democratic power that will never be wielded, cross my heart. The Prime Minister doesn't exist, yet is the single most important post in the land. Our government is a government of tradition, not paper.

It is becoming a growing tradition that you don't muck with the bill of rights. You have the power to do so, but you don't touch it.

It came up in the election with specific reference to Gay Marriages. Harper said he would use the Notwithstanding Clause to overturn any court ruling that would allow gay marriage.

The issue with Martin and a Minority has to do with proceedure.

After an election, the Govenor General asks the party with the majority of seats to form a goverment.

If there is no party with a majority, the last party in power would be asked if they can form a government... even if they have fewer seats than another party. The party can then either try to form a government (coalition or not) or they can say no and the GG would then ask the Party with the most seats.

When it looked like the Conservatives would win in a minority position it was suggested that Martin might still try to form a government with allies from either the Bloc or the NDP. He ended up saying the party with the most seats should try to form the government.

If martin had lost and still formed a minority government, we wouldnt have been able to make fun of the americans for having a president that they didnt elect

Would have been a sad day

Indeed...

very sad

*sniff*

Yeah we would have. The charter has provisions for just such an occasion. The idea is that if the incumbant looses the election, but the winner does not have enough seats for a majority then the incumbant party has the right to petition to form a government. It sounds odd, but it preserves a government in one form or another to ensure the country continues to run..

We wouldnt have the supreme court ruling, a thousand protestors, and a hundred political specials regarding it ;)

Illegal Search and Seizuires. Section 8 of the Charter. It doesn't happen often but I try to keep track of what rights I currently have.