Martin losing his marbles?

[FTA Lawyer]

I don't know if it was just me, but I'm pretty sure that tonight Paul Martin tried to goad Harper into agreeing to a Constitutional Amendment to do away with the Notwithstanding Clause.

Anecdotally, I venture to say that a common gripe of Canadians which transcends partisanship is that the Courts are routinely meddling where our elected officials ought to be exercising their mandate to pass legislation for our citizens.

The phrase "judge-made law" is an expletive, not a reverance of the wonderous glory that the Charter has brought to us...even amongst many people who are pro-Charter.

I think that this will potentially hurt Martin more than it could possibly help him...he's basically saying he doesn't want the government to be able to decide what is best for Canadians anymore...if elected on this platform plank is he proposing to send a reference to the S.C.C. for their blessing before he introduces any new law?

What would be the point of debating anything in the Commons...the only opinions that would matter would be the 9 appointed justices of the S.C.C. Now, some may argue that is the way things are now, but at least Parliament still holds the hammer (if anyone would have the balls to use it to stand up for principles).

Just wait until he realizes that the Notwithstanding Clause may very well be the only thing that would ensure a government's ability to push ahead with his new national daycare program (that's right...it won't be long before a stay-at-home parent brings a s. 15 application arguing that such measures unfairly subsidize parents who want the government to raise their kids...). There are even plausible scenarios that would require the use of the Notwithstanding Clause to protect medicare from the evils of private health care providers (and the dreaded "two-tier system").

The S.C.C. has just finished weighing in on private health insurance for example...if Martin really wanted to protect medicare from this incursion (which he doesn't really, but that's for another thread) he could outlaw private insurance by using the Notwithstanding Clause.

If Candians wanted to regain control of deciding what behaviour they consider "decent" and outlaw swinger's clubs, they could do so with...you guessed it...the Notwithstanding Clause.

If Canadians are sickened by the "soft" prisons that we have (as is apparent in a new thread on the board)...we could do away with much of the comforts that inmates have...all we need is the Notwithstanding Clause.

Etc. Etc. Etc.

To eliminate the Notwithstanding Clause is to truly hand over the supremacy of Parliament to the Supreme Court of Canada...a move that would fly in the face of the entire British Parliamentary system from which our country developed.

What an idiot...and all to try and disingenuously snag some more votes.

FTA

[betsy]

Journalists after the debate were saying Martin flip-flopped with thie not-withstanding clause. That at the first debate, barely three weks ago, he said exactly the opposite.

They all dismised this sudden, bizarre announcement, as a sign of desperation.

[Argus]

Bizarre. It was only a few days ago Martin was promising to USE the notwithstanding clause to protect churhces if the courts ever ordered them to perform same sex marriages. He said religious freedom was such a fundamental right he would have no hesitation in using it.

Boy! Didn't take long for that promise and reassurance to the religious folk to go out the window, did it!?

Not to mention it's a cheap promise he knows he can't keep. The provinces would never agree to it. They're the ones who insisted it be there in the first place, before agreeing to sign on.

[Kula]

I am not a constitutional expert and assuming FTA Lawyer is actually a lawyer I think his analysis of the whole 'scrap the notwithstanding clause' is excellent. Martin is not an idiot to suggest it, he's is desperate as betsy says. The next 2 weeks will be filled with Martin calling out Harper on this issue and claiming he has a, dare I say it, 'hidden agenda'. Stephen Harper won't protect minority rights like I 'Captain Canada' will, Martin will say. Stephen Harper says he won't use the notwithstanding clause, but we, the Liberals know he's scary and probably will. It's a ploy to deflect the bad press his party is getting, nothing more. I personnaly don't think Canadians care. I don't think most Canadians know what the notwithstanding clause is. I also think the 47 odd percent of undecided voters aren't the types to be too hung up on this type of issue.

[Argus]

I am not a constitutional expert and assuming FTA Lawyer is actually a lawyer I think his analysis of the whole 'scrap the notwithstanding clause' is excellent. Martin is not an idiot to suggest it, he's is desperate as betsy says. The next 2 weeks will be filled with Martin calling out Harper on this issue and claiming he has a, dare I say it, 'hidden agenda'. Stephen Harper won't protect minority rights like I 'Captain Canada' will, Martin will say. Stephen Harper says he won't use the notwithstanding clause, but we, the Liberals know he's scary and probably will.

He would have a hard time given he is the only federal leader who has promised to use the clause.

“Let's say that some kind of decision came down that was going to force…churches, synagogues, mosques or temples to redefine marriage in a way that that particular religion did not want to, then I would use the notwithstanding clause.” – Paul Martin (CBC Radio, December 18, 2003).

[wellandboy]

I am not a constitutional expert and assuming FTA Lawyer is actually a lawyer I think his analysis of the whole 'scrap the notwithstanding clause' is excellent. Martin is not an idiot to suggest it, he's is desperate as betsy says. The next 2 weeks will be filled with Martin calling out Harper on this issue and claiming he has a, dare I say it, 'hidden agenda'. Stephen Harper won't protect minority rights like I 'Captain Canada' will, Martin will say. Stephen Harper says he won't use the notwithstanding clause, but we, the Liberals know he's scary and probably will.

He would have a hard time given he is the only federal leader who has promised to use the clause.

“Let's say that some kind of decision came down that was going to force…churches, synagogues, mosques or temples to redefine marriage in a way that that particular religion did not want to, then I would use the notwithstanding clause.” – Paul Martin (CBC Radio, December 18, 2003).

Excellent point Argus. This is a highly risky plan by the Liberals. Considering Martin hung this out with little follow-up during the debate, it will be interesting to see how the spin meisters play this out.

[scribblet]

I could be wrong but don't you need 7 provinces to agree to this?

In theory Harper's statement that in England Parliament is supreme and in the U.S. the courts are supreme has quite a lot of merit. The notwithstanding clause has always been seen as a check on the powers

of the courts. As Harper expressed it, it is a traditional Canadian compromise between American and English values.

This would indeed make us more Americanized, the same as the U.S. system where the SC an unelected body has the last word. This removed the concept of supremacy of parliament from our constitutional system, and is a radical undermining of Canadian democracy.

[Yaro]

I'm kind of surprised at you FTA Lawyer, that post was complete bullshit and you know it. With or without the Not Withstanding Clause parliament would maintain the ability to make laws, it would still be supreme and with an amendment could override anything that the SCC says. I am not sure why you would post what you posted because quite frankly anyone with even peripheral knowledge of the law knows its untrue.

[betsy]

Nevertheless, Harper's response was brilliant.

He stressed on the danger of giving absolute power to the courts....and equal danger of giving absolute power to Parliament.

He stressed the importance of balance.

Martin is the one who really sounds scary to me.

[sage]

I'm kind of surprised at you FTA Lawyer, that post was complete bullshit and you know it. With or without the Not Withstanding Clause parliament would maintain the ability to make laws, it would still be supreme and with an amendment could override anything that the SCC says. I am not sure why you would post what you posted because quite frankly anyone with even peripheral knowledge of the law knows its untrue.

Actually Big Leagues, you both are in a way accurate. Parliament reigns supreme on any law that does not touch on a charter right. However you are completely wrong to think that Parliament can do anything in violation of a charter right, simply because it passes "an amendment". If it breaches the charter, section 1 of the charter still acts as a saving provision, however if a court were to find that the impugned legislation does not reasonably interfere with the right, the law would be struck down and the only manner in which Parliament could save the law is through the utilization of the notwithstanding clause.

I am sure your "peripheral knowledge of the law" understood this however.

[August1991]

I could be wrong but don't you need 7 provinces to agree to this?

In theory Harper's statement that in England Parliament is supreme and in the U.S. the courts are supreme has quite a lot of merit. The notwithstanding clause has always been seen as a check on the powers

of the courts. As Harper expressed it, it is a traditional Canadian compromise between American and English values.

This would indeed make us more Americanized, the same as the U.S. system where the SC an unelected body has the last word. This removed the concept of supremacy of parliament from our constitutional system, and is a radical undermining of Canadian democracy.

Martin's proposal only applies to the federal government. A simple act of the federal parliament would do this.

I agree with Yaro that FTA's arguments are somewhat over the top but FTA has a point. The Supreme Court knows that a government can override a decision and this keeps their decisions in check. In this, I thought Harper's response was very good - and obviously made up on th fly. The Charter of Rights is code-based law, like the US constitution. The notwithstanding class creates a balance to the British common law.

I agree to that this is really about politics. Martin is using the Charter to imply that Harper will not defend the rights of minorities. Martin is trying to portray Harper as a friend of the strong whereas the Liberals are the friends of the weak. Harper will make the rich richer and the Liberals will ensure that in their Canada, all will be protected.

[Argus]

I could be wrong but don't you need 7 provinces to agree to this?

In theory Harper's statement that in England Parliament is supreme and in the U.S. the courts are supreme has quite a lot of merit. The notwithstanding clause has always been seen as a check on the powers

of the courts. As Harper expressed it, it is a traditional Canadian compromise between American and English values.

This would indeed make us more Americanized, the same as the U.S. system where the SC an unelected body has the last word. This removed the concept of supremacy of parliament from our constitutional system, and is a radical undermining of Canadian democracy.

Martin's proposal only applies to the federal government. A simple act of the federal parliament would do this.

What would be the point? Unless it's a constitutional amendment it's meaningless. Anything that an act of parliament can ban another act of another parliament can simply reinstate. We saw this in Ontario with the law Harris put in place banning the running of deficits, and the "Taxpayer protection act", both of which were almost immediately reversed as soon as the Liberals got into power and started their massive spending spree.

[August1991]

What would be the point? Unless it's a constitutional amendment it's meaningless. Anything that an act of parliament can ban another act of another parliament can simply reinstate. We saw this in Ontario with the law Harris put in place banning the running of deficits, and the "Taxpayer protection act", both of which were almost immediately reversed as soon as the Liberals got into power and started their massive spending spree.

That's how the common law works, Argus.

In 20 years, no federal government has ever invoked the notwithstanding clause. It is now a "tradition", and it would be hard for a federal government to use it. If the notwithstanding provision were abolished by law, then a future federal government would first have to re-instate it (I don't know if that would be easy) and then use it.

As to your Ontario example, I thought the law was silly in the first place. I was not surprised when I saw that it was quickly ignored.

----

It is worth repeating what the Charter of Rights does. It restricts only the actions of federal and provincial governments. The notwithstanding clause allows governments to avoid some (but not all) of these restrictions.

[FTA Lawyer]

I'm kind of surprised at you FTA Lawyer, that post was complete bullshit and you know it. With or without the Not Withstanding Clause parliament would maintain the ability to make laws, it would still be supreme and with an amendment could override anything that the SCC says. I am not sure why you would post what you posted because quite frankly anyone with even peripheral knowledge of the law knows its untrue.

Well, actually Yaro, take my post to any Constitutional Law expert you want because it is absolutely sound. Perhaps the problem is having "peripheral knowledge" and thinking you know more than you do.

I've actually invoked the Charter on behalf of clients and obtained remedies pursuant to it in real courts with judges and everything.

If we have the Charter as is, but minus the Notwithstanding Clause, then the final say on the state of any law that (as Sage properly points out) engages the Charter would rest squarely on the shoulders of the S.C.C. I'm not saying Parliament couldn't pass any laws anymore...but any law that brought upon it Charter scrutiny would only stand as passed by Parliament if the S.C.C. said so.

If the S.C.C. declares a law passed by Parliament to be unconstitutional for breaching the Charter, it can only be lawfully re-instated by using the Notwithstanding Clause. An amendment by Parliament to toe the line with what the S.C.C. has declared is not Parliamentary Supremacy...passing a law because it's what the majority of MP's want "notwithstanding" that it might violate part of the Charter is Parliamentary Supremacy.

For example, in the Sharpe case, the S.C.C. outright created exceptions to the prohibitions against child pornography that were passed into law by Parliament...so as to not trample the rights of Mr. Sharpe the paedophile (and also to prevent less revolting people from unintentionally being caught by the criminal law).

Parliament has done nothing to respond to the Sharpe decision...so the law, as amended by the S.C.C. is what we have to this day...not the law that Parliament passed.

IF a government wanted to say...to hell with the likes of Mr. Sharpe, and we're not convinced that less revolting people are going to be troubled by this law...and decided to re-insate the law that they passed in the first place, it could only be done with the Notwithstanding Clause (becuase the S.C.C. declared the original form of the law to be unconstitutional).

Take the Notwithstanding Clause away, and you are stuck with the law as handed back to you by the S.C.C.

Martin may be officially proposing now to simply pass a Federal statute barring the feds from using the clause...which as many have pointed out is hardly strengthening the Charter...any subsequent gov't can just repeal the statute...But, as I originally posed the post...am I wrong or did he not expressly challenge Harper to agree to a CONSTITUTIONAL AMENDMENT to do away with the clause?

Anyone?

FTA

[cybercoma]

I don't know about the rest of you, but I've got a serious problem with the government overturning court decisions. Say for example, I'm being discriminated against by the government and the courts make a ruling in my favour. The government then turns around and uses the notwithstanding clause. I think this is dangerous, maybe the rest of you don't....but I don't think it should be an option, except in the most extreme circumstances. Even then, I believe the people should be allowed to vote whether or not the governmenet can use the clause. Call me crazy.

[tml12]

I don't know about the rest of you, but I've got a serious problem with the government overturning court decisions. Say for example, I'm being discriminated against by the government and the courts make a ruling in my favour. The government then turns around and uses the notwithstanding clause. I think this is dangerous, maybe the rest of you don't....but I don't think it should be an option, except in the most extreme circumstances. Even then, I believe the people should be allowed to vote whether or not the governmenet can use the clause. Call me crazy.

I won't call you crazy because there are flaws with the nonwithstanding clause. That being said, I prefer elected officials to appointed judges if for the sole reason that I can call elected officials accountable to me.

[Wilber]

"Martin may be officially proposing now to simply pass a Federal statute barring the feds from using the clause...which as many have pointed out is hardly strengthening the Charter...any subsequent gov't can just repeal the statute...But, as I originally posed the post...am I wrong or did he not expressly challenge Harper to agree to a CONSTITUTIONAL AMENDMENT to do away with the clause?"

From another who has no more than peripheral knowledge of the law, can Parliament make constitutional amendments without involving the Provinces, even though those amendments may only involve the rights of the Federal government?

[compaq905]

Paul martin had said that if the Supreme Court ruled that same-sex marriages could be performed without protecting religious rights that he would use the notwithstanding clause. Now that issue has been settled but if the count overturned its prior ruling then the government would have no way of protecting religious rights. I don't think the notwithstanding clause should be taking out I also don't think that this issue should be taken to Canadians because they did not have enough knowledge of the subject. By taking out the notwithstanding clause paul martin is taking rights away from the majority and he needs to be reminded that this is a democracy.

[Yaro]

Just off the top, I am not relying on my own opinion here, I have consulted with a both my retainer, and my wife who are both lawyers.

Well, actually Yaro, take my post to any Constitutional Law expert you want because it is absolutely sound. Perhaps the problem is having "peripheral knowledge" and thinking you know more than you do.

You posted material that you full well know is simply not honest. I do not believe I know more then you, I believe that you posted an opinion based upon a faulty premise. That is that without the non-withstanding clause that SCC decisions become final, that is completely and unarguably untrue. With support at a significant enough level parliament can pass ANY law, in a democracy the super majority is final. I can certainly understand where you might not agree with the standard without the not-withstanding clause and I think we agreed to disagree on that before as an accepted matter of personal opinion.

I've actually invoked the Charter on behalf of clients and obtained remedies pursuant to it in real courts with judges and everything.

If we have the Charter as is, but minus the Notwithstanding Clause, then the final say on the state of any law that (as Sage properly points out) engages the Charter would rest squarely on the shoulders of the S.C.C. I'm not saying Parliament couldn't pass any laws anymore...but any law that brought upon it Charter scrutiny would only stand as passed by Parliament if the S.C.C. said so.

This is untrue.

If the S.C.C. declares a law passed by Parliament to be unconstitutional for breaching the Charter, it can only be lawfully re-instated by using the Notwithstanding Clause. An amendment by Parliament to toe the line with what the S.C.C. has declared is not Parliamentary Supremacy...passing a law because it's what the majority of MP's want "notwithstanding" that it might violate part of the Charter is Parliamentary Supremacy.

The Charter can be changed, that is the proper mechanism for making such changes. Exceptions are in and of themselves the cancers that create tyranny. The whole point of the Charter is that it applies equally to everyone, when you make exceptions you, by definition, create inequalities.

For example, in the Sharpe case, the S.C.C. outright created exceptions to the prohibitions against child pornography that were passed into law by Parliament...so as to not trample the rights of Mr. Sharpe the paedophile (and also to prevent less revolting people from unintentionally being caught by the criminal law).

This is not a fair example, by my understanding of this case Ann Geddes could have been arrested by the original law but I sure as hell can't fairly be caste in the light of defending a pedophile.

Parliament has done nothing to respond to the Sharpe decision...so the law, as amended by the S.C.C. is what we have to this day...not the law that Parliament passed.

No action is parliament’s prerogative; your suggestion that because parliament chose not to take the steps necessary to invoke supremacy they do not possess that supremacy is factious.

IF a government wanted to say...to hell with the likes of Mr. Sharpe, and we're not convinced that less revolting people are going to be troubled by this law...and decided to re-insate the law that they passed in the first place, it could only be done with the Notwithstanding Clause (becuase the S.C.C. declared the original form of the law to be unconstitutional).

Or through the process of altering the Charter, an onerous task to be sure but not impossible and the logically and morally correct path.

Take the Notwithstanding Clause away, and you are stuck with the law as handed back to you by the S.C.C.

No you don't, you change the mechanism and raise considerably the level support required.

Martin may be officially proposing now to simply pass a Federal statute barring the feds from using the clause...which as many have pointed out is hardly strengthening the Charter...any subsequent gov't can just repeal the statute...But, as I originally posed the post...am I wrong or did he not expressly challenge Harper to agree to a CONSTITUTIONAL AMENDMENT to do away with the clause?

I am not defending Martins position on the matter, that’s not relevant. As a lawyer you posted information that was untrue, there are many here me included that would have taken that post at face value if I did not happen to have a discussion with my retainer about this very topic. I could very well have used your post to base own decision making off of and that’s what I found objectionable. Well that and the fact that I asked my wife about it and she hates talking politics and I am sure that it cost me a night of sex, and in reality THAT is what really ANGERS ME!

[Montgomery Burns]

Wow. Yaro is lecturing people on the truth. That's rich coming from someone who has the morals of a sand nit.

[Riverwind]

You posted material that you full well know is simply not honest. I do not believe I know more then you, I believe that you posted an opinion based upon a faulty premise. That is that without the non-withstanding clause that SCC decisions become final, that is completely and unarguably untrue. With support at a significant enough level parliament can pass ANY law, in a democracy the super majority is final.

I know this is true under the US consitutution but I do not believe this is true under the Canadian consitutution. Can you provide a link to the appropriate part of the Constitution that states parliment can override the surpreme court with a super majority?

[Argus]

I don't know about the rest of you, but I've got a serious problem with the government overturning court decisions.

You watch too much television, where judges are invariably wise legal scholars with deep and profound juddgement and an unbaised ability to consider the justice of a case.

Now in the real world, if you're a Liberal MP and get booted out of office by your constituents, hey presto! you're now a judge! Being a judge is one of the favorite remedies for unemployment among lawyers who are ex-government mps. We have some real cranks as judges. Look up Paul Cosgrove, the ex Liberal cabinet minister sometime if you want a few laughs. And examine the appointment of the last two members of the Supreme Court. Wise and restrained legal scholars of great experience, wisdom and knowledge? Uhm, no, two women (cause that's good for the female vote, y'know) who were strong advocates of gay rights - just by coincidence. no doubt. Anyone expecting unbiased judgement from them?

I don't want these incompetent clowns having the final say in how this country is run. It's almost impossible to get rid of them. Even Cosgrove, as nutty and paranoid as he is, is still around because his fellow judges are protecting him.

[betsy]

Just finished COUNTDOWN with M Duffy.

Three radio announcers as guests. All said Liberals are really diving judging from all the calls they've been getting.

One announcer commented that with all the serious blunders, Martin seems "unstable." I don't think he meant Martin's unstable position in the polls right now.

[Guest eureka]

Something that always seems to be overlooked in these arguments is that, by definition, a Charter cannot be used to reduce or remove Rights.

Thus, a Notwithstanding Clause should be an illegal provision in itself. Sec. 1 of the Charter itself could be read as implying that such a Clause is inadmissible.

[FTA Lawyer]

Just off the top, I am not relying on my own opinion here, I have consulted with a both my retainer, and my wife who are both lawyers.

Well, actually Yaro, take my post to any Constitutional Law expert you want because it is absolutely sound. Perhaps the problem is having "peripheral knowledge" and thinking you know more than you do.

You posted material that you full well know is simply not honest. I do not believe I know more then you, I believe that you posted an opinion based upon a faulty premise. That is that without the non-withstanding clause that SCC decisions become final, that is completely and unarguably untrue. With support at a significant enough level parliament can pass ANY law, in a democracy the super majority is final. I can certainly understand where you might not agree with the standard without the not-withstanding clause and I think we agreed to disagree on that before as an accepted matter of personal opinion.

I've actually invoked the Charter on behalf of clients and obtained remedies pursuant to it in real courts with judges and everything.

If we have the Charter as is, but minus the Notwithstanding Clause, then the final say on the state of any law that (as Sage properly points out) engages the Charter would rest squarely on the shoulders of the S.C.C. I'm not saying Parliament couldn't pass any laws anymore...but any law that brought upon it Charter scrutiny would only stand as passed by Parliament if the S.C.C. said so.

This is untrue.

If the S.C.C. declares a law passed by Parliament to be unconstitutional for breaching the Charter, it can only be lawfully re-instated by using the Notwithstanding Clause. An amendment by Parliament to toe the line with what the S.C.C. has declared is not Parliamentary Supremacy...passing a law because it's what the majority of MP's want "notwithstanding" that it might violate part of the Charter is Parliamentary Supremacy.

The Charter can be changed, that is the proper mechanism for making such changes. Exceptions are in and of themselves the cancers that create tyranny. The whole point of the Charter is that it applies equally to everyone, when you make exceptions you, by definition, create inequalities.

For example, in the Sharpe case, the S.C.C. outright created exceptions to the prohibitions against child pornography that were passed into law by Parliament...so as to not trample the rights of Mr. Sharpe the paedophile (and also to prevent less revolting people from unintentionally being caught by the criminal law).

This is not a fair example, by my understanding of this case Ann Geddes could have been arrested by the original law but I sure as hell can't fairly be caste in the light of defending a pedophile.

Parliament has done nothing to respond to the Sharpe decision...so the law, as amended by the S.C.C. is what we have to this day...not the law that Parliament passed.

No action is parliament’s prerogative; your suggestion that because parliament chose not to take the steps necessary to invoke supremacy they do not possess that supremacy is factious.

IF a government wanted to say...to hell with the likes of Mr. Sharpe, and we're not convinced that less revolting people are going to be troubled by this law...and decided to re-insate the law that they passed in the first place, it could only be done with the Notwithstanding Clause (becuase the S.C.C. declared the original form of the law to be unconstitutional).

Or through the process of altering the Charter, an onerous task to be sure but not impossible and the logically and morally correct path.

Take the Notwithstanding Clause away, and you are stuck with the law as handed back to you by the S.C.C.

No you don't, you change the mechanism and raise considerably the level support required.

Martin may be officially proposing now to simply pass a Federal statute barring the feds from using the clause...which as many have pointed out is hardly strengthening the Charter...any subsequent gov't can just repeal the statute...But, as I originally posed the post...am I wrong or did he not expressly challenge Harper to agree to a CONSTITUTIONAL AMENDMENT to do away with the clause?

I am not defending Martins position on the matter, that’s not relevant. As a lawyer you posted information that was untrue, there are many here me included that would have taken that post at face value if I did not happen to have a discussion with my retainer about this very topic. I could very well have used your post to base own decision making off of and that’s what I found objectionable. Well that and the fact that I asked my wife about it and she hates talking politics and I am sure that it cost me a night of sex, and in reality THAT is what really ANGERS ME!

Okay Yaro, lets walk you and your lawyers through this one...

My statement, which is completely 100% legally accurate is summed up wonderfully by this sentence from my post:

"If we have the Charter as is, but minus the Notwithstanding Clause, then the final say on the state of any law that (as Sage properly points out) engages the Charter would rest squarely on the shoulders of the S.C.C."

You then say I post false information because Parliament could always overrule the S.C.C....by merely amending the Charter. I said, If we have the Charter AS IS, BUT MINUS THE NOTWITHSTANDING CLAUSE.

I will give you that amending the Charter would allow Parliament to take back control and overrule the SCC, but if that's what you suggest as a remedy to an overzealous SCC decision, then why in the hell would you not just keep the Notwithstanding Clause?! All the Notwithstanding Clause is is a method of temporarily amending the Charter for a specific purpose. (You do understand that you would have to amend the Charter to take away some of it's protections in order to deal with the scenario we are talking about don't you?)

My statements were made from the presumed position that the whole reason Martin made this suggestion was to treat the Charter as inviolable and never to be altered or detracted from...in that context what I have said is completely 100% true.

And by the way...amend the Charter? Are you f-ing kidding? So for the 20 years that it takes to bring about that change via the next Charoletttown or Meech Lake type gong-show, the law as made by the overzealous SCC is the law we're stuck with and Parliament is completely powerless to do anything about it. The practical impossibility of your suggestion is exactly why the Provinces would only sign up if they had the safety valve of the Notwithstanding Clause.

And keep in mind, the SCC makes particularly influential rulings on a regular basis...are you seriously suggesting that the proper way of maintaining Parliamentary supremacy in such a scenario is to make repeated Constitutional Amendments? That defeats the whole purpose of having a Constitution at all...it is supposed to be virtually constant.

As far as the Sharpe case, it's the perfect example, and you simply don't understand it and have obviously not read it (and I use it as an example of SCC versus Parliament...I'm not saying you support child pornography...I hope you see that). Anne Geddes was always clearly excepted from the law under the "artistic merit" subsection, much like anatomy professors and others had express exemptions.

Sharpe is a paedophile and the whole point of his case going to the SCC was for him to protect his ability to possess and make child pornography so long as it was only for his personal use and gratification. The SCC found he was entitled to that right under the Charter and created new exceptions to the law (that Parliament never included) that afforded him protection. Under the SCC exception, if a 40 year old adult male wants to videotape himself having sex with a 14 year-old girl he can...so long as she consents and he is not in a position of authority to her.

Under Parliament's version of the law, this activity was criminal.

The point is that the only way for Parliament to make this activity criminal again (without amending the Charter) would be to use the Notwithstanding Clause because the highest court in the land has declared that this activity ought not to be criminal because it infringes the Charter rights of the 40 year-old man.

Your solution would be to amend the Charter...that would mean taking out the protections in the Charter for Freedom of Expression...entirely...because the SCC reasoning that cleared the way for Sharpe is their interpretation of the extent of the freedom of expression...this is far worse than using the Notwithstanding Clause to re-enact a law and say as a society, we don't much care if we are violating the rights of Mr. Sharpe the paedophile because we are more concerned with protecting children.

Anyway, make of this what you will, but in no way was I posting anything dishonest or to sandbag non-lawyers out there into adopting my views. There may be plenty of people on this board deserving of that criticism, but I expect most of the people here will acknowledge that I'm not one of them.

FTA