Martin losing his marbles?

[mar]

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?)

This paragraph would seem to weaken you claims of objectivity. You apparently expect the SCC to make overzealous decisions that parliament will have to rectify. As you presumably know, the SCC's authority runs to assessing if a particular law does or does not violate the Charter. They can not ammend the Charter in any way.

We have a mechanism to ammend it. Yes it is slow and ponderous, principally because it requires majority support in most regions of Canada which is precisely what something as momentous as ammending the Charter should require. We also have a mechanism - one forced by political expediency and not favoured by the drafter of the original Constitution - to allow provinces to "opt out" of specific provisions by invoking the notwithstanding clause. We also have a mechamism (the federal ability to invoke the notwithstanding clause) which gives any federal majority government (and a majority these days is well under 50% of the popular vote) the ability to - in effect - erase any existing Charter provision at will.

It would seem logical to me that if the Conservative party truly believes in greater regional autonomy they should welcome a move to abolish the ability of the federal government to invoke the notwithstanding clause. Clearly it gives the feds greater power than any province as they can strike out any provision of the Charter at will and this would take effect ACROSS CANADA. Provinces can only opt out of clauses in their own province.

So again it comes down to "We got this power and we wanna hang onto it in case we want to go against the SCC in accordance with our particular political views." Comforting.

[FTA Lawyer]

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.

Interesting idea, eureka, but the Charter can't render its own provisions to be null and void.

And a Charter absolutely can be used to reduce or remove rights...and I've pointed out repeatedly on this board that our Charter does just that!!!

Section 15(2) of our Charter is an express enshrinement of Parliament and the Legislatures' abilities to pass laws that outright take away rights and impose discriminatory policies...as long as the objective is to right past wrongs.

Section 1 is the specific acknowledgement that individual rights will often be at odds with collective interests of society and expressly authorizes government to limit or remove an individual's rights so long as that is done in a way that can be demonstrably justified in a free and democratic society.

As you and others seem to think that I am expressing personal opinion when it comes to this issue, I am going to include the following quote from the SCC decision in R. v. Oakes and hopefully prove to you that the Charter does inherently permit and in many cases require certain rights to be abrogated in favour of others:

"Section 1 both guarantees the rights and freedoms set out in the provisions that follow it and states explicitly the exclusive justificatory criteria (outside of s.33) against which limitations on those rights and freedoms may be measured. The onus of proving that a limitation on any Charter right is reasonable and demonstrably justified in a free and democratic society rests upon the party seeking to uphold the limitation. The standard of proof is a preponderance of probabilitites based on: (1) the objective to be served by the measures limiting a Charter right must be sufficiently important, at least relating to societal concerns that are pressing and substantial in a free and democratic society, to warrant overriding a constitutionally-protected right or freedom; and (2) the means must be reasonable and demonstrably justified, in proportion to the importance of the objective. The proportionality test involves three components:

i. the measures must be fair and not arbitrary, carefully designed to achieve the objective in question, and rationally connected to that objective;

ii. the means should impair the Charter right as little as possible; and

iii. there must be a proportionality between the effects of the limiting measure and the objective."

So there you have it, the instruction manual on how our Charter can and does operate to reduce or remove rights...(or to use the SCC's terms "limit", "impair" and "override" rights and freedoms)

FTA

[FTA Lawyer]

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?)

This paragraph would seem to weaken you claims of objectivity. You apparently expect the SCC to make overzealous decisions that parliament will have to rectify. As you presumably know, the SCC's authority runs to assessing if a particular law does or does not violate the Charter. They can not ammend the Charter in any way.

We have a mechanism to ammend it. Yes it is slow and ponderous, principally because it requires majority support in most regions of Canada which is precisely what something as momentous as ammending the Charter should require. We also have a mechanism - one forced by political expediency and not favoured by the drafter of the original Constitution - to allow provinces to "opt out" of specific provisions by invoking the notwithstanding clause. We also have a mechamism (the federal ability to invoke the notwithstanding clause) which gives any federal majority government (and a majority these days is well under 50% of the popular vote) the ability to - in effect - erase any existing Charter provision at will.

It would seem logical to me that if the Conservative party truly believes in greater regional autonomy they should welcome a move to abolish the ability of the federal government to invoke the notwithstanding clause. Clearly it gives the feds greater power than any province as they can strike out any provision of the Charter at will and this would take effect ACROSS CANADA. Provinces can only opt out of clauses in their own province.

So again it comes down to "We got this power and we wanna hang onto it in case we want to go against the SCC in accordance with our particular political views." Comforting.

Well, thank-you for making me re-read my own post...because the Notwithstanding Clause doesn't amount to temporarily amending the Charter...more correctly it amounts to temporarily suspending a particular protection in the Charter for a particular purpose.

As for your first comment, I don't expect the SCC to be overzealous, but I KNOW that the SCC commonly prevents Parliament's will because what Parliament wants to do does create a Charter breach. In most cases, this is appropriate, and Parliament will be more than happy to make changes to ensure that Charter compliance is made out.

However, there may very well be cases where the will of the Canadian people is so strong on a particular issue that they want a particular law passed in a particular form, whether or not it infringes upon someone's Charter rights in a way that breaches the Charter.

In those situations, I want Parliament to be able to do the will of the people, "notwithstanding" what the 9 Justices of the Supreme Court say. It's not about weilding power in a partisan way to screw minorities...it's about protecting the democratic process to ensure that appointed judges do not trump elected legislators.

Paul Martin's example of using the NWC for protecting priests from having to marry same-sex couples is a perfect example of why it is vital to maintain the clause. A preist in the situation would be on his way up to the SCC arguing that his Charter right to freedom of religion is compromised if forced to marry a same-sex couple and his religion is against that.

The same sex couple denied a marriage would be responding that their s. 15 Charter rights are violated, because the only thing keeping them from getting married in the church where the priest resides is they are homosexual.

Both parties have a perfectly valid complaint, and the SCC will be saddled with making a call...to choose one right over the other...either the priest has to marry them or he doesn't.

For the sake of argument, let's say that the SCC does a thorough, fair and proper legal analysis and concludes that legally, the priest has to conduct the ceremony. Let's also then say that 96% of Canadians from all walks of life disagree with this decision, and MP's are being outright told by their constituents to set it right.

Absent amending the Charter to somehow take away the couple's equality rights enough so that the SCC would have to then find in favour of the priest, the only way for the 96% of Canadians to be governed by the law the way they want it to be is if the NWC is there to allow the Parliament to simply pass a statute that says the priest doesn't have to marry the couple.

THIS IS WHAT PAUL MARTIN SAID HE WOULD DO IF THIS SITUATION CAME ABOUT!!

And I, as a conservative totally agree with his view on it. The NWC is not a tool of partisanship, that only CPC members want or can benefit from...it is a tool of democracy, that when used appropriately, is of vital importance to Canadians...that's why I started the topic to say that Martin probably hurt himself with this suggestion of removing it, and most political commentary and opinion polls would suggest that I was right.

FTA.