Sean Hayward

Any ruling in favour of freedom of speech is a good ruling. It seems that the courts are starting to change direction on this issue, for the better.

Alright we are making no progress here, but I will give it another shot. Take equality as an example of a principle that has not changed but whose interpretation has changed dramatically. 200 years ago, equality meant only equality before the law for white protestant males. Today, equality is a much more expansive and inclusive concept, but the principle, the idea itself, has not changed. I believe that making the principles unambiguous and specific would be a mistake primarily for two reasons: 1) narrowly defined principles would inevitably not be shared by a consensus of the population because they would be too specific to accomodate varying but similar interpretations of the same principle; and 2) the principles would be in danger of becoming unreflective of society's principles because the specific details of the principles would have to be changed regularly in order to ensure that. Interpretations change constantly and gradually, sometimes more rapidly than others. Most directly, the courts are responsible for developing current interpretations of the principles of the constitution, when interpreting the constitution itself. Also, the people and their elected representatives are responsible for interpreting the constitution and its principles, when making laws and amending the constitution. These interpretations are to be found, just as other legal interpretations are to be found, in court rulings, parliamentary debates, current laws, etc. I have never said that capitalism and communism are of the same principle. I would say that certain elements of both are founded in different interpretations of the same principles. Do you deny that elements of both of those ideologies are founded in vastly different interpretations of the same basic principles, specifically freedom and equality?

Well, actually much of the Constitution of Canada consists of documents dating back as far as 1867, and even further if you include the Act of Settlement and the Royal Proclamation of 1763. Yes, you have just agreed with what I've been arguing this whole time, in one sentence. The principles of the United States haven't changed since inception, but the interpretation of those principles has changed dramatically. Change every 200 years is certainly not frequent by my standards. But a change in the text itself is far different from a change in interpretation. That is my point, that the principles ought to be flexible, or ambiguous, enough for significant changes in interpretation to occur without requiring changes in the constitutional text.

I don't see the point in entrenching principles if they have to be modified on a regular basis. Principles should remain constant and ambiguity may be required to allow for that. I think that the specifics of principles certainly do change, rapidly in some cases. Just look at the change in political situation during the last century.

This debate is basically exhausted. If there is to be a defined set of principles enshrined in the Constitution of Canada, it should be in a form that allows interpretation to change as society changes. This may require ambiguity. If the principles are to be so specific that they must be updated regularly, then there is no point in putting in such a set of principles; we might as well just leave the constitution without a defined set of principles.

Whoever wrote that article has to win the 'most ignorant journalist of the year award'. Clearly they don't undertand what Canadians have fought for and are fighting for. "Visiting other countries and killing people" is what's needed sometimes to ensure freedom for Canadians and to liberate oppressed people in other countries. What kind of a person says that liberating Europe from Nazi Germany was a bad thing?

The only legal implication of an interpretive clause is to assist the courts in their interpretation of the content. If the interpretive clause is ambiguous, that might make it less relevant for legal purposes, but it would certainly not make it dangerous. If ambiguity is the price that must be paid for an interpretive clause that will be able to remain constant in a changing society, then it is a price worth paying. The people, their representatives, and the courts must all interpret the principles in the constitutional process. It is true that many people are uninformed or uninterested in these matters, but there are also many people, a significant group, that are informed and do care. It is their opinion that matters, and their opinions are expressed clearly enough to see. The content is further detail that should be consistent with the principles, but the principles have to be unspecific, or ambiguous, so that they remain relevant to the whole of the content and are flexible enough to remain constant even when society, as it inevitably does, changes. You are correct that the exact nature of the principle would not be described in an ambiguous principle, but that is the purpose of making it ambiguous, to leave the interpretation up to society and the courts. This provides a flexible interpretive clause that would remain constant, while the exact meaning changes over time, as society changes. I do not want to discuss natural rights at this time, but I am trying to show you that it is a very ambiguous concept. According to your explanation, to kill is not a natural right becuase it violates another's natural rights. But isn't it a violation of a natural right to prevent someone from killing another, which they would be able to do if there was no government? If you allowed them to kill the other person, you would be violating the natural right to life, but if you prevented them, you would be violating the natural right to kill. That seems a very ambiguous concept to me.

The implications are known, and they are few. The purpose of an interpretive clause is to provide the courts with some frame of reference to interpret the content. They have no legal weight in and of themselves. I don't see where the unknown or dangerous implications are. It is irrelevant what the people of a country think of their constitution? If that is your opinion, then I see the nature of our disagreement so much more clearly. Constitutions, and all laws, are not made in a vacuum, they are made in accordance with the realities in society. If principles are to be put into the Constitution of Canada, they should not be specific in their wording, or they will be the same as content. What is the point of entrenching principles that are just carbon copies of certain elements of the content. The passage of time is a major consideration in this debate because, as we have both agreed, these 'principles of the constitution' should remain constant or near-constant as the rest of the constitution, and, to a greater extent, other laws, changes with the will of society. Therefore, the principles must be flexible and fundamental enough to remain constant over a very long period of time. It is my opinion that these objectives are best achieved by leaving the principles in an ambiguous form. Yes, but who defines the specifics of natural rights? Without government, I could kill, steal, enslave, etc. Does that make those things natural rights? The whole concept is a grey area, and it all appears very ambiguous to me.

Left-wing people consider generally left-wing ideas to be good ideas, and right-wing people consider generally right-wing ideas to be good ideas. That is the foundation of the political party system. The goodness of an idea is in the eye of the beholder. It is as simple as that.

What are these unknown implications of the preamble to the US Constitution that you speak of? It has been in effect for over 200 years and it has not caused any of the problems that you say would be caused by an ambiguous interpretive clause. And I don't think many Americans would agree that it is "sadly lacking". Most Americans would tell you that it is an inspirational description of their national principles. Yes, your interpretation of equality does not include economic rights. Mine does. That is the point of having principles without specifcs. We both believe in equality, but we have different interpretations of what exactly that means. The Constitution of Canada needs a set of principles that is able to accomodate varying but similar concepts. I don't have the time to do an adequate job of researching the theories of natural rights, but I am sure that there would be quite a variety of interpretations if I did. To retrace our previous steps, who decides what rights would exist without government? It is absolutely impossible to develop an authoritative answer to that question.

Yes, we have come full circle. We have made our positions clear and pursued the issue to the point of exhaustion. Non-specific principles can and should be added to the Constitution of Canada as an interpretive clause. I believe that your fears about ambiguity on that matter are unfounded because the principles would only be in an interpretive clause, carrying no legal weight in and of themselves. Look at examples of interpretive clauses in other countries' constitutions if you don't believe me. The Preamble to the US Constitution, an interpretive clause, provides a series of ambiguous principles. They are widely supported by Americans, as they accomodate varying interpretations while providing a central phrase that all can accept and support. I am sure that I would find a great deal of discussion on the internet and other places about what natural rights are, etc. I am also sure that I would find radically different concepts and variations of what constitutes a natural right. There is as much ambiguity in the concept of natural rights as there is in the concept of equality.

The Conservatives' plan is better, but the reality is that it will not be passed by Parliament at this point, due to the opposition parties blocking it, and so the provinces are stepping up to the plate. How is McGuinty's plan irresponsible? Do you oppose the plan itself, or that Quebec is involved?

Well, even if we do not recognize economic rights in the constitution, the fact is that many of them have been adopted by various governments across Canada through laws and other policies. The Quebec Charter of Human Rights and Freedoms, for example, recognizes economic and social rights in provincial legislation. I believe strongly that economic rights do fit the principle of equality perfectly. However, that is my interpretation of equality and your interpretation is different. I can definetly provide an unambiguous definition of MY INTERPRETATION of equality, but I think that it is dangerous to include specifics in the principles of the constitution. I cannot provide an unambiguous definition of natural rights because it seems to me a very ambiguous concept: who decides what rights would exist without government?

I am fine with including what you call ambiguous language, but only in an interpretive clause. Such clauses are not intended to be interpreted by themselves, and so it is not dangerous for them to be unspecific. The specifics should be contained in the content of the constitution, which is modified through the process of constitutional amendment, which can be done through elected representatives or referendums. The courts also play their role in the interpretation of the constitution, considering the content through the lens of the principles (the interpretive clauses).

They're not taking the side of Quebec. McGuinty has made this decision based on Ontario's environmental policy, and the best way to carry it out. The issue is the environment, not language, not seperation. The inaction of the federal government (due to the opposition parties in Parliament) puts the responsibility on the provincial governments to move forward with their own programs, as environmental policy is not exclusively federal or provincial jurisdiction, it is a shared jurisdiction.

The relevance is that Leafless hates anything bilingual, from the Government of Canada to Dalton McGuinty. Note the anti-Quebec undertone of the initial post in this thread as well. The Europeans are also mentioned unfavourably. The second paragraph is particularly funny.

Alright, then what phrase would you propose? I feel that recognizing "the basic equality of each individual" is as clearly worded as possible without compromising my belief that specifics should not be included. However, I am open to your suggestions. Other principles would be included as well, such as democracy and freedom.

We agree then, that all law should be clear and unambiguous and that each 'level' of law should differ from the others in its degree of detail. I am not arguing for vague principles. I am arguing for principles that do not codify specifics, so that they remain sufficiently flexible to change in their interpretation as society changes. The purpose of these principles is to provide an interpretive clause for the constitution, and to provide an inspirational text that represents the principles of Canada. In this role, general principles will function well. This is a major step forward, that we now agree that including the specifics (forms of discrimination, etc) is not a good idea. I do not believe that you and I vary greatly on our definition of equality, nor do I believe that Canadians in general do either. The phrase that I would suggest is: "The Constitution of Canada shall be interpreted in a manner consistent with the recognition of the basic equality of each individual".

Yes, there will always be cases that we have not thought of, or that will change due to changing factors is society. This is why principles must be left general. I disagree with you that each 'level' of law should be equally specific. Think about what you're saying: if the principles of the constitution must be as specific as the content of the constitution, which must be as specific as the laws made under it, then each level would be exactly the same as the total of the subordinate level, and there would be no point in making a distinction between the levels. No, you don't have to read the whole book to understand the introduction, but you might feel that the introduction is too general if you read it alone. The meaning of the introduction doesn't change from the content of the book, but it provides the specificity that you seek. You introduced the "individual signing a document" analogy, not I. However, the fundamentals of contract apply to both situations, and demonstrate well my point that general interpretive clauses should not be feared because control over the content is maintained. No, the forms of acceptable discrimination should not be in the principle itself, unless they are made sufficiently general so as to allow enough room for interpretation. The specifics of what forms of discrimination are acceptable should be in the content of the constitution. We have agreed that the principles should be more difficult to change than the content, so I think that this is a reasonable proposal.

I am not opposed to the idea of making principles clear, but I have a problem with your idea of making it so specific that it looks more like content than principles. Yes, the principles preclude the content, I agree. But what you're saying is "if we don't make principles very specific, how do we know what they mean", and my answer is that you must look at the content. It's like if you read the introduction to a book and you aren't sure exactly what it means then you read the rest of the book for elaboration. That doesn't contradict anything I've said here previously. Of course society is never of one mind, but, in the end, society must act together for the purposes of the law, including the supreme law (the constitution). It is all founded on societal consensus, and how we achieve that consensus. The main problem I have with your proposed equality principle is that it codifies the forms of discrimination that are unacceptable. It is plainly evident, through a brief look at the past hundred years of Canadian history, that this is bound to change in society's interpretation. My concern is that you would be creating something that would not be flexible enough to allow the principles in the constitution to reflect the principles of society, which is their purpose.

I don't think that equality of opportunity is radically different from equality of outcome. They are very different in the details, sure, but they both have their root in the same ideal of equality: the idea of a "level playing field" and a "fair deal" for all members of society. We are only talking about an interpretive clause here, so all you would have to do to find out what the principle of equality means in the constitution is look at the content. There is a clear distinction to be made between the role of the principles and that of the content. Principles would serve as a guide for both interpretation of existing content and what is permissable new content. In the "signing an agreement" analogy, the signee represents society. I, the signee, would sign an agreement with general principles because they would only be used as an interpretive clause, and, although general principles allow for more content to be considered permissable than specific principles, I would always control the content because I am the signee. When you sign an agreement like that, you don't have to be afraid of too general an interpretive clause because you also have control over the content itself. The same is true with society (the signee) and the constitution (the agreement). Yes, what we are talking about must consider changes over time because a constitution must be flexible enough to last for a very long time, until it is replaced. A constitution cannot be just considered in the moment, without thought for the past or the future. Regarding what you said about age discrimination, I find that some people who were the most vocal opponents of certain types of discrimination when it hurt them seem to suddenly become justifiers of the same type of discrimination when it benefits them. Take the example of racial minorities fighting for racial equality and then becoming advocates of affirmative action. If a future society's interpretation of a principle changes, then they should amend the content of the constitution to better suit their new interpretation. A more gradual change occurs in the courts, where interpretation is constantly changing to reflect society's interpretation.

The point of using a general phrase for a principle is that it can accomodate similar positions under the banner of one principle. All reasonable people have a similar idea of what equality means, but, as we have seen here, exact definitions vary slightly. A more general definitions allows us the room to declare our allegiance to the same principle, but keep our own varying but similar interpretations. I would sign a legal document that included general definitions of principles, if those definitions were to be used only as an interpretive clause, which is what we're talking about here, and I agreed with the principles. What you are saying seems to mean that you think that leaving any room for interpretation is dangerous. I think that it would be dangerous not to leave room for interpretation. Over time, the "legitimate grounds for discrimination" (ie. factors that equality doesn't apply to) are bound to change in society's interpretation. Today, most people see age as a legitimate grounds for discrimination. You obviously do not. If the specifics of equality were entrenched today using this society's interpretation, age would not be included. However, if we leave the definition general, then the specifics can change with society's interpretation, and perhaps age would no longer be considered legitimate grounds for discrimination in the future.

I think we would be hard pressed to find a test that would be effective in the alcohol and tobacco situation, other than age. Is there any test in particular that you have in mind? Using a competence test might work for voting, but it may have the side effect of disenfranchising many adults, which might be unacceptable to society. A more general definition would generate agreement because it allows more room for interpretation on both an individual level and a societal level. Principles are meant to be general, so that they apply to all contexts. If we say that equality is a principle of Canada, we can all agree on that. But we are each allowed our own interpretations of what it means specifically, and we may contribute those interpretations in political debate.

There are health issues surrounding the consumption of alcohol or tobacco at a young age that I don't believe could be dealt with using any other test than age. Voting is similar. Would you allow children to vote? This is why I suggested a more general definition of equality, to allow interpretation to change over time. Well, people can vote for anyone for any reason. You can't change that without undermining democracy. There is no way to ensure that political decisions are made in accordance with the fundamental principles, but entrenching those principles would provide general guidelines and a reference point for discussion.

I mean that governments must discriminate on the basis of age in areas such as alcohol, tobacco, motor vehicles, etc. I think we agree on the idea of entrenching principles, and we agree that they should be used to guide both interpretation of existing content and the addition of new content. Elements of the constitution that are inconsistent with the entrenched principles would be, in effect, invalidated by the courts because they would have to be interpreted in a manner consistent with the principles. The courts and the public have different roles in this context, but both must consider the entrenched principles. The courts use the entrenched principles to interpret existing content. The public uses the entrenched principles to make decisions regarding changing the content. It is not a "one or the other" situation.