Brainiac

Who cares. Time is a lousy magazine anyways. That person of the year stuff is just a way to sell, or I guess in your case not sell, magazines. Is the person of the year suppose to define Canada? I thought it was just the big news makers of the year.

Hi Hugo, Legislators write laws that can be broadly interpreted so that they don't have to rewrite them all everytime an exception to the rule shows up. That is how precedents are formed. s.15 states that EVERY INDIVIDUAL is equal before and under the law. Everybody can be interpreted to mean someone who does not fall into the listed groupings. People with a third arm are not listed in s.15 either but they are still equal under and before the law. I understand how you come to this conclusion, but it is a juvenile understanding of the issues surrounding discrimination at best. The issue is more complex than you have made it out to be. You are assuming that everyone is on an equal playing field to start with. Yes it does bother me that the opposition in this country is unable to mount an effective opposition to the party in power. I don't think I would blame that on the media however, I think that has more to do with a few select wing nuts in said party that don't understand that when they say stupid things it just confirms peoples fears about the party they belong to. I am not saying that those conclusions are in any way justly founded, but that perception is one that is very dangerous to parties like the Alliance/Reform. That frustrates me to no end. I think the new conservative party should teach all of its members a little about PR. I am also frustrated by the electoral process here in Canada, I don't like how the majority of the country didn't vote for the party in power, yet they have a majority. That will be difficult to change however, because no party who gets in power will ever want to change it.

Hi Boydfish, The SCC is not the only court that can render a piece of legislation inoperative. Any high court in any province can do the same, there is nothing saying that the SCC has to rule on every Charter case. It just has to be a court of competent jurisdiction. If you say so, but the upper courts of a province could still make that legislation inoperative. Like I said before, it doesn't have to be the SCC. I just believe that the Charter and the Constitution Act are good things. That doesn't mean that I am some fan of the guy who got it put in place. Okay, who are THEY, and what are THEY coming for? Who is being persecuted? Are you being persecuted Boydfish? If so, how?

Seemed to work just fine in the case that you cited. That is because you do not understand the idea of interpretation. Cite me anything in that case you gave that suggests that the judges ruled in a way that was to promote their view of what Canada should look like. Unless you know what each of the judges personal beliefs are you really can't do that. The judges in this case interpreted the law to include sexual orientation. The fact that it is not listed in s.15 has nothing to do with it. s.15 says everybody has the right to be equal before and under the law. The judges could not have objectively ruled in any other way. It seems pretty clear to me. The spirit of s.15 is to ensure everyone is equal before and under the law. Laws are often written in a vague manner so that they can be interpreted on a case per case basis, because it is impossible for the drafters of the law to take into account any little thing that might happen that the law didn't cover. There seems to always be an exception to the rule. That is what you get for living in a society where common law is used. I don't know if property rights are entrenched elsewhere? The Charter is used by the courts in cases where someone brings a Charter challenge to repeal sections or entire laws that are unconstitutional. The charter can only be used to repeal property laws that are unconstitutional(do not conform with the rights set out in the Charter). I can't think of any that might be though. Any ideas? If there was a property law that says only white men can own land, then that probably would be repealed. I am tired of dealing with your paranoid conspiracy theories. You should think about making an argument that doesn't sound like you just finished calling into a late night talk show about how aliens and queers are ruining the soil. If a government abolished property rights in Canada (not that I can think of why they would), they would have a lot more to worry about than a bunch of court cases.

It doesn't state it anywhere, instead it occurs in the courts exercising the Charter when a Charter challenge is brought. Parliment doesn't have to have its legislation reviewed by the courts to ensure that it complies with the Charter. If they don't however, they risk having the legislation repealed if it doesn't comply. Some may say this diminishes the power of Parliment because they cannot just pass whatever they want and have it stick. I disagree. Trudeau. HAHA, like I said you assume too much. Trudeau is no more my dear leader than say Governor Mulroney. So what you are saying is that because the SCC can be replaced, the CCRF is toothless? That would suggest that every law in Canada is toothless? The fact is the Charter has been working for over 20 years. If that is toothless then that works for me.

Hi Boydfish, All entrenchment means is that the Rights are included in the Constitution. When they are entrenched they do have special status, they are superior to all federal and provincial statutes. The Bill of Rights was a statute itself and was considered quasi-constitutional, however, it was not as protected as the Charter because it was not entrenched in the Constitution. It is true, many of the rights in the Bill of Rights are included in the Charter (I haven't been able to find mobility rights however, but that doesn't mean they aren't there). I am not saying that we never had the rights before, it is just that when they are entrenched in the constitution they can only be changed through a formal constitutional amendment. Another difference is the diminished power of parlimentary supremacy that leads to better protection for minority rights seeing as the parliment is elected by the majority. So it is the rule of law that speaks for the minorities instead of the majority. As for our rights, they are not absolute...they are subject to reasonable limits(s.1 of the Charter), that can be demonstrably justified in a free and democratic society. My arguement about the Bill of Rights is not suggesting that the laws passed before the Charter were more in line with the rights of the people of Canada, but that they were not being scrutinized as effectively by the judiciary under the Bill of Rights, as they have been since the Charter came into existence. In fact for its first decade the Bill of Rights had very little impact on Case Law and it was not clear if it could strike down a federal law or if it was simply meant to interpret the law. R. v. Drybones, [1970] S.C.R. 282 was the first and only case where a statute was made inoperative by the Bill of Rights, if you could find more I would like to read them. As for your crime example, it is based on a false assumption of my original arguement. That would be the diminished power of the parliment like I stated above(in the way that the creation of legislation must be reviewed by the judiciary to ensure that it is constitutional). First of all, who exactly is my dear leader? You assume too much. You are correct, the SCC is not mentioned in the Charter per se, however s.24 of the Charter states: "Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances."

Was there a challenge to the marriage law? I believe the marriage law was in place before the Charter came into effect. Like I said the courts (as far as I know, if you can show me where they have...please do)have not gone out on their own to change a law. The law has to be brought in front of the courts before they can do anything about it.(usually on a Charter challenge brought on by an appeal from a lower court) That is unless the law was made after the Charter was put into the Canadian Constitution. Please cite me the SCC decision that did this. I would be intrested in reading it. I believe that it is a little more complicated and involved than you are making it in your statement. I think what you are referring to (but am not certain) was not the definition of marriage issue that we have today, but extending the rights of someone who was married (ie.privledges given to married couples by the government)to those in common law and same sex unions. The court did not change the law, they just extended the rights to the people who challenged the law. Whether the government changed the law, I do not know, it doesn't affect me as a person so I never looked it up. The Bill that you are referring to came as a result of the Ontario and BC court decisions. The Federal Government appealed those decisions to the Supreme Court and the Supreme Court said that the lower court rulings are constitutional. The reason the Feds ran the new bill past the SC is because they wanted to reduce the chances of it being challenged in the future. That doesn't mean that it won't however. I don't see how you have proven me wrong or proven your claims that the courts are not independent from the political process, or that they do not follow the Charter. The law is often very specific, and the courts often, but not always, rule rather specifically on the questions that are posed of them. Please offer some specifics so that I can get a better idea of what you are talking about...in the above cases I am assuming I know which examples you are referring to and I would rather not do that. No I do not believe that the fed and prov. govts will never make laws that affect the business world. I was responding to your hysterical rantings of how the Charter protects employers from having to hire whites. You said: The Charter does not tell the business man what to do, but the it does affect some of the laws that the governments make that have a more direct effect on the business world (ie Labour Law and Human Rights Legislation). So I suppose in an indirect way the Charter does affect the business world, but not in the way that you stated. So what is your point again. I am confused by your working of both sides of this discussion. First you say that the Charter protects employers from hiring you because you are white and then you say that there are labour laws preventing such things. I think I know where you are going with this, but I don't want to get into it at this time. Yes they will and they have...but your property rights are not in the Charter, so it has nothing to do with it. Your logic and interpretation are very suspect. Yes, Trudeau wanted property right in the Charter, they were eventually not put in, thus the Charter does not concern itself with property rights. If Trudeau did get property rights put into the Charter, then the Charter would include property rights. Geez. I agree that property rights are important, but for reasons I don't want to get into they were not included in the Charter. They are elsewhere in other legislation though, but I don't think they are constitutionally entrenched. As for the other stuff you mention, that is important to make sure that the mechanics of the government are entrenched so we don't have, say the Liberals in power forever without an election, as an example. I think that is important as well and I am sure you would agree. Of course it sounds like a contradiction to you, you paraphrased it the way you think it reads. You do not understand the issues subsection(2) is trying to address. Here is an analogy. Think of two glasses of water...one is 1/2 full and the other is 1/4 full. If you add 1/4 to each glass there will still be one that is not as full as the other. So in order to get them equal, one glass requires more water than the other. Go get a Annotated Criminal Code from the library and read the Charter Section and its annotations, it explains the issue. The one problem I have with this section is when does it cease to be required? That is a question that only time can answer.

I did not mean to imply that we did not have rights before the Charter. We just did not have Charter Rights thus the rights that we had were not entrenched in the Constitution and they were being protected rather ineffectively. I believe only one statute was rendered inoperative over the 20 so years that the Canadian Bill of Rights was in force. It was also not seen as being effective because civil liberties were not being adequately protected in the Canadian constitutional system. As for the implied bill of rights theory, it is used to 'fill in the gaps' in the terms expressed in the constitution today. It isn't so much that your rights changed when the Charter came into being, it was just that your rights are more effectively protected now that the Charter is in place. Besides, most people don't come across their Charter Rights until they are arrested. The Charter changed the ways police carried out their duties. The Canadian Bill of Rights only had the status of a statute, so the Government of Canada could affect those rights through other federal statutes. The Charter put the protection of your rights at the constitutional level and this led to a sharper focus and adherence to these rights. The Charter also has the limitations clause that has been used to prevent such things as obscenity and hate speech as well as protect the unreasonable interference of government in the lives of people. As for which document is superior in format and writing, I suppose that is subjective and based on, in your case, political prefrence.

I don't know what Charter you got your info from, but you are only kind of right on what the Charter says and you are dead wrong on your interpretation of it. I didn't want to have to do this but here I go. s.15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disablility. That is s.15 of the Charter of Rights and Freedoms. If you read the annotations under this section you will see that "Section 15(1) is not a general guarantee of equality; it does not provide equality between individuals or groups within society in general or abstract sense, and does not impose on individuals or groups an obligation to accord equal treatment to others. It is concerned with the application of law. The ideal embodied in this section is that a law expressed to bind all should not, because of irrelevant personal differences, have a more burdensome or less beneficial impact on one than another." It then goes on to explain the distinctions that need to be made and why. Now who does this Charter apply to? Lets look at section 32. s.32 (1) This Charter applies (a) to the Parliment and government of Canada in respect of all matters within the authority of Parliment including all matters relating to the Yukon Territory and Northwest Territories; and ( to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. (2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force. This is why the Charter does not mention your property rights...it has nothing to do with it, it concerns the governments and the laws they make. Now here is s.52 of the Constitution Act, 1982 s.52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. (2) The Constitution of Canada includes (a) the Canada Act 1982, including this Act; ( the Acts and orders referred to in the schedule; and (c ) any amendment to any Act or order referred to in paragraph (a) or (. (3) Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada. The last two sections (s.32 of Charter and s.52 of Constitution Act)basically state what I have been trying to explain. You are entitled to your opinions, but that does not make them correct. [All above sections and annotations have been taken from the Canadian Charter of Rights and Freedoms found in the 2003 edition of Martin's Annual Criminal Code]

Whoa, where do I begin? No, the example you gave was of the court changing a law based on what their vision of what they thought Canada should be. Here is your example in your words: Your example is innaccurate because the law that the government would have passed is not against someones Charter Rights. Thus the court has no power to strike it down. If the roles where reversed and the government made the law that said someone could be detained for an indefinite time, then the courts could strike it down and ask the government to change the law because it is against the Charter Rights of Canadians. The courts do not rule the way they do because they have a certain vision of what they think Canada should look like. To say such a ridiculous thing simply illustrates your lack of knowledge and your apparent ignorance concerning the workings of the Canadian legal system. Again, the courts only strike down laws when there is a charter challenge brought against them...anyone who has the most basic understanding of Canadian Law knows this. If you think that the Charter needs to be struck downa nd changed, launch a Charter Challenge saying that you believe that the Charter is infringing on your Rights and Freedoms. As for your claims that the charter promotes institutional racism et al, I will get to that in a bit. First, the Charter did not exist in 1969, so there were no Charter Rights to protect, second, there would have had to have been a charter challenge, the courts don't strike down laws based on what the majority of Canadians want, it strikes down laws that are made by the government that are not constitutionally sound. They only seem to be doing this because you don't agree with what they are doing at the moment. It is a little more complicated than your simplictic view of things. That is incorrect. The charter has nothing to say about what a businessman does, it only applies to the federal and provincial governments, and it is purely to prevent the government from making laws or acting in ways that infringe on someones Charter Rights...you might be referring to Human Rights Legislation or provincial labour laws, that is a whole other ball of wax. Again you exhibit your lack of understanding. See s. 32 of the Charter, it covers the application of the Charter (ie. who it applies to). Then read s.52 of the Constitution Act, 1982 (it covers what I have been trying to explain to you over the last number of posts). These two pieces of legislation might clear a few things up for you. Name me one publicly funded University in Canada that refuses admitting people because they are Christian...I made it in just fine and I am a Baptist. Also which section of the Charter states this? I am having trouble finding it. You are correct, it doesn't, that is found under another bit of legislation. That is like saying the Criminal Code doesn't acknowledge your right to own property. It only bothers you because you fail to see why it is there. In Canada we want everyone to be equal before and under the law and equal protection and benefit of law; that is under s.15 of the Charter (a section you misinterpret time and time again). I suggest you go get an annotated copy of the Charter and Constitution Act, read it, and then maybe you can argue your points a little more accurately; oh wait you won't be able to because then you will see that your complaints are groundless. Or just take a University course on the Charter (oh that is right, they won't let you in because you are Christian, I guess you'll just have to go to the library, that is if they let Christians in there, if they don't at yours I know a few that do). That may be so, until the government can make a law that doesn't infringe on a womans s. 7 rights I guess it will stay the way it is. They didn't strike it down so that abortion would be easier, they struck it down because it infringed on a womans s.7 Charter Rights...that is all. If you don't believe me read the case law for yourself. Here are a couple of cases that were pivotal in the current state of abortion here in Canada (I suggest you read the actual cases if you want an accurate account of how each Supreme Court Justice voted and why). R. v. Morgentaler and Tremblay v. Daigle.

Well said Mr. Hardner.

Yes I do admit that the courts do the striking down, because that is one of their functions. S.24 of the Charter gives the court the power to enforce guaranteed rights and freedoms. You are correct that the Parliment speaks for the people, but the courts are there to protect the people. I don't know how I could explain this any easier? My example could happen because it is Parliment that makes the laws. Yours could not happen because the courts do not make or change laws, they just interpret, strike down or uphold laws. It gets a little more complicated, but that is the basic idea. Yes the charter is a Parlimentary act that was put into place by the Government to keep the Government and its agents (ie the police) in check so that they do not violate your fundamental freedoms in the course of their duties. Whether you like it or not, it is the function of the courts to uphold your fundamental freedoms and make sure that the Government and it agents are doing the same. It seems you are a little paranoid. Like I said above, s.24 of the Charter of Rights and Freedoms gives the courts the authority to enforce your guaranteed rights and freedoms. They cannot strike down the Charter because the charter does not infringe on any of your guarenteed rights and freedoms, instead it gives them to you. Do you see how ridiculous your argument is? Have you read the Charter and all the annotations that go with it? They can amend acts with popular mandates, they just have to make sure that those popular mandates do not infringe on the rights and freedoms set out in the Charter. You are right...but I never said anything about the Nazi government, I said Nazi party, you read into the whole government thing. As for the Abortion issue. My point is that the old Abortion law was struck down by the Supreme Court based on s.7 of the Charter because it infringes upon a woman's right to life, liberty and security of the person. Because the government didn't want to replace the law, like the court suggested, abortion is no longer illegal. The court only made it legal through default because the government did not act by creating a new law.

Who said they were there to change, over ride, or create new laws? Not all laws that are made by the government follow what the charter says, so when there is a charter challenge against the law, the court will decide whether or not the law is in compliance with the charter. if it is not the government needs to change it. THE COURTS DO NOT DO THE CHANGING. Are you referring to any one case in particular? Is there more information? On its face this example does not make sense. Again, the courts DO NOT CHANGE THE LAW that is not their job. They let the government know when there needs to be a change in the law because of charter problems. My example spoke to everyones fundamental right to conscience and religious beliefs, I am not sure what you are talking about. please explain. "In the election of July 1932, the Nazi Party won 37% of the Reichstag seats..." (taken from The Rise of the Nazi Party) Looks like they were elected to me, albeit not the ruling party, but I never said that. What would the courts base striking the charter down on? Does the Charter go against the Charter? Is there something in the Charter that infringes on someones Charter Rights and Freedoms? I think you have some kind of idea that the courts just run rough shod over the laws that are made by Parliment because they have nothing better to do. Again I say you do not understand what you are talking about. Umm...s.251 of the Canadian Criminal Code concerns Unseaworthy Vessel and Unsafe Aircraft. So where is that Abortion Law again? There is s. 163 that concerns advertising method of causing abortion or miscarriage, s. 287 (1),(2),and (3) Procurring miscarriage (doing it yourself), s.288 Supplying noxious thing for purpose of abortion, and s. 287(4),(5),(6) Therapautic abortion. What the Supreme Court struck down was the law that basically said a woman does not have control over her own body because it did not fit with a womans Charter Rights. The government, not wanting to deal with it, left it as that and did not replace it, so it is left open. So instead of being illegal, there is a opportuntity to choose that was created by the innaction of the government. The court did not make any laws, it just struck one down in this case.

This above statement illustrates so succinctly your ignorance of the Charter, the legal system here in Canada and the concept of discrimination. I am first guessing that you are referring to s.15 ss.2 of the Charter of Rights and Freedoms. Please explain how section 15 of the Charter perpetuates the problems of discrimination? I would be interested in hearing this. As for a court choosing to disregard or even scrap the Charter if it felt so inclined is nothing more than hysterical rhetoric spouted out by someone who doesn't understand the workings of the Canadian legal system or the Charter.

Hugo, Say the government passed a law that said if your religion does not believe in homosexuality it is guilty of hate crimes and is to be outlawed, and say the majority of people in the country thought that the law was a just one and made a lot of sense (thus creating the political will for the government to go ahead with the law). Would you not want the courts to say that this law is unconstitutional and it infringes on your fundamental freedom of conscience and religion? A court that is not bound by public pressure or political ideology and instead the objective interpreation of the law (ie. Charter of Rights and Freedoms for this example). Or is that the courts over stepping their boundaries? I could go on with examples but I will leave it at one for the time being. Remember Hugo, the Nazi Party of Germany was a group of elected officials. That is why we have the Charter, it is to protect the minority from the will of the majority if that majorities will is against the minorities fundamental freedoms. A government of elected officials is not above breaking the law or passing laws that infringe upon the rights of its citizens. The government made a bad law as it relates to the rights of a certain minority in Canadian society as set out in the Charter(banning same sex marriage) so the Ontario and BC courts found that the law needed to be changed to fit with the Charter of Rights and the Supreme Court agreed. The courts do not do the changing, they just told the government that the law is unconstitutional and that it could not be enforced in Canada so it needed to go back and be changed so that it fit with the Charter of Rights and Freedoms. That is why the government is working on changes to the same sex marriage bill at the moment. They will make the changes and then have the Supreme Court look over them to make sure that they will not have another Charter Challenge brought against them. Ever wonder why we do not have any Abortion laws in Canada at the moment?

The courts decide whether or not laws made by the law makers are against the Charter Rights of Canadians. They are a safe guard against a government who might make laws that infringe on the rights of others. They are not elected, so public opinion and popularity polls don't affect their decisions, but instead they decide based on the letter and spirit of the law that governs our land. The Parlimentary decision to not allow same sex marriage was found by two provincial courts to not jive with the the Charter of Rights and Freedoms that we base our society on and the Supreme Court backed that up. It is the same Charter that will protect me, a Christian, from a government saying that I cannot practice my faith because I don't agree with the act of homosexuality. As for your statement saying that the courts change laws on a whim. I just have to say that you exhibit a very deep misunderstanding of the rule of law as it is practiced here in Canada. Please enlighten me as to where the courts just change law on a whim without taking into account the legal rights of Canadian citizens as stated in the Charter? The courts interpret the laws that are set out by Parliment thus creating case law (except in Quebec where it is a little different)and they decide whether new laws follow the Charter of Rights and Freedoms so that our elected officials don't go making laws that discriminate against people in Canadian society.

The age of consent in Canada is 14 years of age. This means that so long as the sex is consensual, it is okay for an adult to sleep with someone as young as 14. However untasteful someone might find that, it is legal.

Here is a Q and A with Judith Levine about her book "Harmful to Minors". Tell me where she says that it is alright to screw kids. Q and A with Judith Levine Hear is another link to an article that addresses the misconceptions about her book. What Judith Levine is really saying I can't say I agree with Ms. Levine on most of what she says, but I can see what she is trying to say, and it is not that it is okay to be a pedophile. I have never heard of this woman until I read your posts but I would have to say that your claims are out to lunch.

Fanatic, Why exactly should the 'gay movement' have to condemn this Levine woman for saying that sexual abuse against children is okay? That is if she even said it. So far you have not convinced me that she takes this stand. I would be interested to see where this woman says that sexual abuse towards children is okay. The article from the Village Voice was retarded to say the least, but it didn't mention that it was okay to screw kids. Is it okay for straight people not to condemn this woman? What do gay activists have to do with the child abuse issue? Should they also make a stand on pollution and other causes that are unrelated to their cause?

Heterosexuals are ridiculously promiscuous as well, as a rule. Homosexuals don't corner the market on that one. They might not be rushing to marry for a number of reasons. That is unless you have talked to every homosexual in North America and they all told you that they are not getting married because they just want to screw around. Who knows, maybe they value marriage more than heterosexuals do. We get married for some very stupid reasons, most of which have nothing to do with commitment and monogamy.

Custody of the child goes to the primary care giver, not the woman. This is determined by who spends the most time with the child.

I can't believe that someone considers Fox news to be a superior news channel. Has anyone actually watched it? I find it more comical than anything else. I feel that the CBC and BBC are as unbiased as any news channel is ever going to get. They try and show both sides of the story instead of being a spin vehicle. I however agree with Black Dog, bias is all in the eye of the beholder.