Forget All Else: Islamic Law Comes To Canada

[Hugo]

THE COURTS DO NOT DO THE CHANGING.

But you admit they do the striking down, and Parliament is not necessarily required to do anything about it. This is not right. Parliament speaks for the people, and the courts do not. You gave an example of Parliament abusing power, but I gave you an example of a court abusing power, so that changes nothing.

If Parliament decides to pass something into law, the proper role of the court is to apply that. It may not change it, ignore it or strike it down. As I said, even the Charter is a Parliamentary Act, and if we accept that a court can strike down any Act, we have nothing but the word of judges that they will even uphold the Charter.

Basically, I do not feel that a panel of non-elected judges should be able to over-ride Parliamentary acts. That is not democracy.

What would the courts base striking the charter down on?

You insist that courts will uphold the Charter against infringements by Parliament, however, you cannot tell me why they are bound to do so. That's because they are not. They could strike the Charter down tomorrow. Unlikely, but the way things are, perfectly possible. The reason is irrelevant in this discussion, the fact that they can is not.

Even if they were bound to uphold the Charter, why should that be their duty? Why is the proper role of a court to defend Acts of Parliament against other Acts of Parliament? Surely that is strictly a matter for Parliamentary debate, if they want to amend previous Acts with popular mandate, why can they not do that?

Looks like they were elected to me, albeit not the ruling party, but I never said that.

Some Nazi officials were elected, but the Nazi government itself was constitutionally appointed, not elected, in much the same way as a judge is constitutionally appointed and not elected.

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.

No, what the Supreme Court did in this case was to take something that had been made illegal by an Act of Parliament and make it legal. Basically, they changed the laws. They changed the Criminal Code by taking a section of it and declaring it null and void.

[Michael Hardner]

Hugo, the courts are there to keep the legislature in check. The justices swear an oath to the Queen, to Canada, whatever. Any system of governance needs to rely, ultimately, on people (in our case legislatures and judges) to decide what laws are made. Additionally, a written constitution is designed to provide a more permanent basis for the laws of the land.

This is how it works in the US, and how it works in Canada.

It seems to me that you have less of a problem with the system than with the fact that the judges don't share your personal beliefs.

[Morgan]

Michael,

You're a bit naive if you believe that Canada and the US are the same in their checks and balances. When you tell Hugo that he's peeved

that the judges don't share your personal beliefs.

...that's an understatement if I've ever heard one!The Supreme Court judges in Canada only share opinions of the PM and the Law Society...not exactly an unskewed sampling of "beliefs." yuk, yuk

The citizens of the USA have a distinct advantage over the citizens of Canada with respect to curtailing runaway judicial activism, though you'd never know it in light of recent majority rulings on affirmative action and sodomy whose support was arrogantly "read into" the constitution.

The President's nominations for the Supreme Court in the USA are rigorously vetted and voted on by elected representatives in Congress.

However, in Canada the people have no say in which judges are appointed to the highest court in the land.

Appointments to the Supreme Court are made entirely at the discretion/whim of the Prime Minister,who, himself, is elected by politicians not by citizens at large like the President is.

The Supreme Court's candidates' names are referred to the PM by the Law Society...so it amounts to lawyers recommending lawyers to the highest court.

So Canada's judicial version of a "check and balance" is a bit of a cruel joke on ordinary Canadians, who, by and large, are not members of the hallowed[cough] Law Society.

Canadians can thank Pierre Elliot Trudeau for this brilliant piece of chicanery.

[Michael Hardner]

The citizens of the USA have a distinct advantage over the citizens of Canada with respect to curtailing runaway judicial activism, though you'd never know it in light of recent majority rulings on affirmative action and sodomy whose support was arrogantly "read into" the constitution.

The President's nominations for the Supreme Court in the USA are rigorously vetted and voted on by elected representatives in Congress.

However, in Canada the people have no say in which judges are appointed to the highest court in the land.

Appointments to the Supreme Court are made entirely at the discretion/whim of the Prime Minister,who, himself, is elected by politicians not by citizens at large like the President is.

Ok. From what you say, the justices are vetted by congress and are appointed by a president voted on the country as a whole.

But as (I think) you pointed out, supreme court justices still interpret and strike down laws - which is the main complaint here, I think.

The Supreme Court's candidates' names are referred to the PM by the Law Society...so it amounts to lawyers recommending lawyers to the highest court.

Well, it's likely going to be a lawyer that becomes a judge isn't it ? Is there another profession I don't know about that's better suited to interpreting law ?

So Canada's judicial version of a "check and balance" is a bit of a cruel joke on ordinary Canadians, who, by and large, are not members of the hallowed[cough] Law Society.

Um....

I don't see many dockworkers and plumbers on the US supreme court benches either. I would say this is a good thing, but maybe you disagree.

Canadians can thank Pierre Elliot Trudeau for this brilliant piece of chicanery.

I'm sure you'd feel better about it if the constitution protected the right to bear arms, and guaranteed that marriage was between a man and a woman.

Do you see what I mean ?

You folks are complaining about the process, but it's the content of the constitution that bothers you - not the fact that we have one.

Why not start an initiative to change the constitution ?

[Brainiac]

But you admit they do the striking down, and Parliament is not necessarily required to do anything about it. This is not right. Parliament speaks for the people, and the courts do not.

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?

You gave an example of Parliament abusing power, but I gave you an example of a court abusing power, so that changes nothing.

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.

If Parliament decides to pass something into law, the proper role of the court is to apply that. It may not change it, ignore it or strike it down.

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.

You insist that courts will uphold the Charter against infringements by Parliament, however, you cannot tell me why they are bound to do so. That's because they are not.

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?

<snipped two inane questions> Surely that is strictly a matter for Parliamentary debate, if they want to amend previous Acts with popular mandate, why can they not do that?

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.

Some Nazi officials were elected, but the Nazi government itself was constitutionally appointed, not elected, in much the same way as a judge is constitutionally appointed and not elected.

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.

[Brainiac]

You folks are complaining about the process, but it's the content of the constitution that bothers you - not the fact that we have one. 

Why not start an initiative to change the constitution ?

Well said Mr. Hardner.

[Morgan]

The Law Society is NOT ACCOUNTABLE to Canadians, whereas MP's are.

I would suggest to you that an in camera selection of judicial candidates by a non-elected, select group of lawyers, who profit from legal action and conflict, is more in keeping with an oligarchy rather than a democracy. This is further demonstrated by the fact that this secret list is given to the PM, who has sole power to choose the Supreme Court judges.

This is NOT A TRANSPARENT PROCESS.

That the Supreme Court in the USA read in "activist inspired rights" into the constitution is true, but on the other hand Americans at least have a hope/a chance that there will be some balance in the Supreme Court perspectives due to the USA's more public and transparent judicial appointment process. Canadians have next to nil chance for balanced perspectives but a very great chance for special interest/agenda driven perspectives.

P.S. It would be helpful to conducting a debate if you stayed on point. What's the benefit of bringing in irrelevant comments to a debate?

Of course, the Supreme Court judges should not be plumbers or electricians. What does that have to do with having a transparent, accountable process?

And how is it relevant to the discussion about the differences between the USA and Canadian Supreme Court's judicial selection process as to whether I favour guns and traditional marriage?

[Hugo]

Morgan, good points. It does not matter what the judges are doing as much as how they are being allowed to do it, and a panel of judges accountable to nobody and appointed by one man who is himself not elected to his post by the people should not be allowed a big say in the laws of our country - but they are. That is not democracy.

You are correct that the Parliment speaks for the people, but the courts are there to protect the people.

I disagree. If they were, they would have already struck down the Charter, it's protection of institutionalised racism, sexism and other discriminations and refusal to recognise private property rights. All the courts seem to be doing is to be protecting special interest groups and the whim of the PM, and if that is even being allowed to happen, something is wrong. If they are protecting the people and their wishes, why didn't they strike down the 1969 abortion amendment, when the majority of Canadians were pro-life?

Yours could not happen because the courts do not make or change laws, they just interpret, strike down or uphold laws.

The example I gave was of a law being stricken down.

the charter does not infringe on any of your guarenteed rights and freedoms, instead it gives them to you.

No, it does not. The Charter protects the right of an employer to refuse to hire me because I am a white male. The Charter protects the right of a university to refuse me admission because I am Christian. The Charter does not acknowledge that I have the right to own property. It was intended to, but thanks to the NDP, it didn't.

You folks are complaining about the process, but it's the content of the constitution that bothers you - not the fact that we have one.

Damn right, the content bothers me - and the process. I'm amazed that a free country like Canada has an egregious document like the Charter of Rights and Freedoms in its constitution.

The court only made it legal through default because the government did not act by creating a new law.

I'm of the opinion that only a law granting what the court itself granted by default (i.e. abortion-on-demand) would have been acceptable, and any new law that was not would likewise have been stricken. Let's face it, the wording of the 1969 amendment made it pretty easy to get an abortion anyway.

[KrustyKidd]

No, it does not. The Charter protects the right of an employer to refuse to hire me because I am a white male. The Charter protects the right of a university to refuse me admission because I am Christian. The Charter does not acknowledge that I have the right to own property. It was intended to, but thanks to the NDP, it didn't.

Educate me bro. Enlighten me on these facts please.

[Hugo]

Para 15, subsection 1 of the Charter states that nobody shall discriminate based on ethnicity, sex etc. Subsection 2 then states that an exemption shall be made for programmes designed to "ameliorate the conditions of disadvantaged individuals or groups" including those disadvantaged by ethnicity, sex etc. So racism is wrong, unless it's reverse racism. It protects Affirmative Action, basically, which as we discussed some time ago is itself a racist/sexist/ageist/whatever-ist idea that prolongs age-old prejudices, worsens the problems it seeks to solve and deepens bigotry.

As for the private property, note that nowhere in the Charter does it state that any individual or group has the right to own property. It's not insignificant, after all, it does stipulate how often Parliament shall sit and so forth and that would seem to be a more frivolous "right" than the right to own property. I gather that Trudeau originally wanted to include this right, but the socialist NDP would not have supported the Charter if it had.

[Morgan]

Hugo,

You are correct on both counts.

The Canadian Charter was developed out of the UN's "Universal Declaration of Human Rights" document which was drafted interestingly enough by a Canadian legal scholar from McGill, John Humphries, and adopted by the UN General Assembly in 1948.

Hence the Charter, because of its UN "inspiration", has left leaning undertones. No private property rights is an example of this persuation. And as you pointed out, Hugo, Trudeau was not about to fight for including property rights in the Charter when his former "colleagues" ie. the NDP were dead set against this inclusion, as one would expect from a full fledged socialist party.

Here's an amplification of the property rights exclusion:

Propert rights in Canada

Section 1(a) of the 1960 Canadian Bill of Rights (S.C. 1960, c. 44, reprinted in R.S.C. 1985, App. III) provides federal statutory recognition of “the right of the individual to ... enjoyment of property”, and the right “not to be deprived thereof except by due process of law.” The right to property is also included under the fifth and fourteenth Amendments of the American Bill of Rights. However, the Canadian Charter of Rights and Freedoms does not provide constitutional protection for individual ‘property rights’. At the meetings of the Special Joint Committee on the Constitution and during Parliamentary debate on Bill C-60, Progressive Conservative MPs proposed that a right to “the enjoyment of property” be included under section 7 of the Charter. This amendment was rejected largely due to provincial government concerns, shared by federal New Democratic Party MPs, that entrenching property rights in the Charter of Rights and Freedoms could interfere with environmental, zoning and other land use regulation; public ownership, expropriation and regulation of resource-based and other industries; and with legislative restrictions on foreign ownership of land. In the 1989 decision of Irwin Toy v. Quebec (A.G.) ([1989] 1 S.C.R. 927), the Supreme Court of Canada referred to the intentional exclusion of property rights from the Charter as a basis for finding that economic rights of a “corporate-commercial” nature are not protected under section 7.

Funny how everyone thinks the Charter is US influenced. Wrongo.

[KrustyKidd]

Para 15, subsection 1 of the Charter states that nobody shall discriminate based on ethnicity, sex etc. Subsection 2 then states that an exe ...........

Wow, that blows my mind. Now I'm pissed.

[Boydfish]

A few thoughts on the Canadian Charter of Rights and Freedoms:

The Supreme Canadian court is not limited to the Charter, as the Charter is essentially an insignifigant document of no use written by "feel-gooders". It is insignifigant because it freely admits that it omits a large amount of the rights already "owned" by both Canadians and the citizens of their confederation, as noted in Section 26:

The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.

In other words, even the Charter admits that it's really a secondary and second-rate document that serves no purpose.

No matter how much Trudeau and the other franco-socialist republic types from Canada try and exalt their sub-standard charter, the simple fact is that every right, plus far more(Including the right to property), are already enshrined and protected: Going as far back as the Magna Carta and other documents, British Common Law has protected our rights.

My point on this is that anybody who tries to argue on the concept of rights using the CCRF as the sole document has no understanding of the Common Law system that we live under, nor do they grasp the Westminster System of government.

[Morgan]

Boydfish,

I always respect what you post.

However, in this instance I beg to differ with your confidence in property rights being protected per Common Law. You use BC as an example.

It would appear that as we speak there are worries about the issue of property rights as documented by the BC Real Estate Association. It has drawn up a position paper, dated September 2003, with a recommendation that the Federal Government add property rights to the Charter.

It appears to me that the BC Real Estate Association[possibly on advice of counsel?] is seeing some "holes" in Common Law.

Property Rights Position Paper, Sept. 2003, BC Real Estate Association

As James Madison once said about property rights:

Where an excess of power prevails, property of no sort is duly respected.

[Boydfish]

The bulk of that arguement is because real estate agents don't particularly like the LTO: They want legislative methods added to try and render the LTO impotent. I happen to deal with the LTO on a regular basis, mainly in property registration in enforcement matters. With an absolute right to property, the LTO would have serious problems with the entire concept of land registration.

The problem is that the Canadians are trying to pull the legal alternative of a "bait 'n switch" of our rights: They keep referring the the Canadian's Charter as some unique and all-encompassing document(It's not, as noted above)and trying to shift us from our Common Law heritage to the franco-socialist republic concept of a constitution/bill of "rights".

The current property rights in British Columbia, like most Common Law rights, are strongly rooted in common sense: Unlike franco-socialist republic concepts like civil codes and charters, Common Law can see shades of grey. The simple fact is that Common Law is over 1000 years of legal evolution covering nearly every imaginable process and concept. A mere document of a few pages, written by a sub-standard thinker drawing from sub-standard sources, has no possible chance of being as practical.

[SirRiff]

its odd to hear people call the charter racist or sexist or whatever. obviously the ideas behind it have been embraced by canada for a long time, so calling it names serves no purpose.

The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.

In other words, even the Charter admits that it's really a secondary and second-rate document that serves no purpose.

uh Boydfish, i am not sure what you have been smoking, but thats not what the charter says. not denying other rights is not the same as admiting inferiority.

i would resist attempting to lecture anybody here on british common law before you figure out the difference between "denying" and "secondary"

that qualifying clauses in the charter, just like the one put in for native indian treaty rights, do not indicate a lack of authority.

look up R v Sparrow (1990) S.C.C. for a case that specifically looks at how the charter interacts with existing rights, specifically fishing rights of natives.

the charter is specifically entrenched to make it dominant in its protections.

arguments made against the charters limits can be made reasonably. arguments against its protections or intent, is generally the product of some arbitrary social philosophy inherited without much reflection i believe.

sirriff

[Brainiac]

Whoa, where do I begin?

The example I gave was of a law being stricken down.

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:

Let's say the government of Canada passes (or has passed, in this case) a bill saying that a person may not be detained without a fair trial. However, a panel of unelected judges decides that that is not in keeping with their vision of Canada and over-turns the law, ruling that a person may be arrested and detained indefinitely without ever being tried in front of a jury of 12 of his peers.

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.

I disagree. If they were, they would have already struck down the Charter, it's protection of institutionalised racism, sexism and other discriminations and refusal to recognise private property rights. 

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.

If they are protecting the people and their wishes, why didn't they strike down the 1969 abortion amendment, when the majority of Canadians were pro-life?

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.

All the courts seem to be doing is to be protecting special interest groups and the whim of the PM, and if that is even being allowed to happen, something is wrong.

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.

No, it does not. The Charter protects the right of an employer to refuse to hire me because I am a white male. 

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.

The Charter protects the right of a university to refuse me admission because I am Christian.

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.

The Charter does not acknowledge that I have the right to own property.

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.

Damn right, the content bothers me - and the process. I'm amazed that a free country like Canada has an egregious document like the Charter of Rights and Freedoms in its constitution.

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).

I'm of the opinion that only a law granting what the court itself granted by default (i.e. abortion-on-demand) would have been acceptable, and any new law that was not would likewise have been stricken.

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.

Let's face it, the wording of the 1969 amendment made it pretty easy to get an abortion anyway

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.

[Brainiac]

Para 15, subsection 1 of the Charter states that nobody shall discriminate based on ethnicity, sex etc. Subsection 2 then states that an exemption shall be made for programmes designed to "ameliorate the conditions of disadvantaged individuals or groups" including those disadvantaged by ethnicity, sex etc.

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]

[Boydfish]

uh Boydfish, i am not sure what you have been smoking, but thats not what the charter says. not denying other rights is not the same as admiting inferiority.

OK, let's put it this way: Between 1981 and 1983, my personal rights changed exactly zero. That means that the entire document is useless and did nothing. The Canadian document added nothing, modified nothing and removed nothing. In legal terms, it is a null item of no value. Name one right enumerated in that was not already entrenched in Common Law, the Magna Carta(1215) or either the Canadian or English Bills of Rights(1960 and 1689 respectively.). I'll save you looking, the answer is zero.

What you Canadians need to understand is that your "Dear Leader" Trudeau's legacy is at best all smoke and mirrors of no real value and at it's worst, plagarism on a massive scale. His cabal re-invented the legal equal of the wheel several hundred years late.

Is the Charter 100% bad? No, probably at least 60% is good law, another 20% good law phrased badly and the last 20% is best forgotten. The problem is that the 60% of good is all plagarized/redundant and the remaining 40% is the parts where it stops saying "shall be free" and starts saying "except...".

the charter is specifically entrenched to make it dominant in its protections.

Dominant? Isn't the phrase quoted pretty damn clear on the point that it does not repeal or remove any of the rights that I had before Trudeau and his cabal came along? Since it adds nothing, nor does it remove anything, exactly how does it become "dominant"?

Unless there is a phrase in your precious charter that says "This abolishes right 'X'.", it does not.

First, the Charter did not exist in 1969, so there were no Charter Rights to protect...

Sorry to interrupt you, but BS. You seem to imply that prior to Comrade Trudeau that no person in the Canadian confederation had any rights. Not only did we all have the Common Law Rights, the Canadian Bill of Rights(Actually far superior in format and writing to the one imposed by Trudeau)was passed in 1960.

http://laws.justice.gc.ca/en/C-12.3/27700.html

[SirRiff]

Boydfish

Dominant? Isn't the phrase quoted pretty damn clear on the point that it does not repeal or remove any of the rights that I had before Trudeau and his cabal came along? Since it adds nothing, nor does it remove anything, exactly how does it become "dominant"?

dominant does not me it needs to replace everything before it. the charter doesnt cover land rights at all. but if a black man was forced off his land for being black, the Charter would protect him because it is dominant to any common law. it is "entrenched" because the charter rights are more important then any other. all the things that arent covered in the charter still exist, no need to reinvent the wheel. but the principles of the charter are dominant to everything else.

so yes, it is dominant, but that does not require it to replace everything that existed before.

OK, let's put it this way: Between 1981 and 1983, my personal rights changed exactly zero. That means that the entire document is useless and did nothing. The Canadian document added nothing, modified nothing and removed nothing. In legal terms, it is a null item of no value. Name one right enumerated in that was not already entrenched in Common Law, the Magna Carta(1215) or either the Canadian or English Bills of Rights(1960 and 1689 respectively.). I'll save you looking, the answer is zero.

when you say your rights didnt change, you are wrong.

as soon as teh charter went into effect your rights DID by definition change and broaden. just because you didnt see the effect on your nose that very moment does not mean it didnt happen.

as soon as the charter went into effect you acquired constitutionally protected rights. the rights are not physical products, so of course you didnt see them. but your conclusion that you gained nothing just because you didnt know you gained anything is not true. the charter became the highest law of the land and every citizen was protected from public discrimnation and inequality. it did happen. you gained rights. the manifestation of those rights might be hard to conceptualize, but it did happen. and good thing it did for we are a better nation for it.

and when you point to common law or the other sources of law, they are NOT ENTRENCHED. that means they are not the same as the charter, there is only one absolute law of equality and that is the charter. obviously you can see the power because of the public law litigation that has stemmed from it in the last 20 years. so yes, it did add something, it added specific numerated concepts of equality and freedom and entrenched them permanently as the highest law of the land. nothing you compared it to is near as important as the charter.

sirriff

[Hugo]

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.

I don't know what you think the courts are acting in accordance with, but it isn't the Charter. Let me give you an example.

Prior to 1999, same-sex unions were not recognised in law, at all. The Supreme Court could, as you suggested that they do, have struck down the marriage law as a violation of the Charter and demanded that Parliament draw up a more inclusive one, but they did not.

Then, in 1999, the Supreme Court changed their minds and changed the law (which, according to you, they can't do) to include common-law same-sex marriages. Did the Charter change? No. Did the nature of marriage change, either heterosexual or homosexual? No. But the Court felt the need to change a law that, up until 1999, they had not had a problem with.

Then in 2003, a bill was announced to allow same-sex marriage across the board. The Supreme Court was consulted beforehand to find any objections, and surprise surprise, they had none. While this won't be finalised until next year, I will bet you a year's salary that if the bill passes the Supreme Court will not oppose it. Not to mention the fact that courts in Ontario and BC had already made full-fledged same-sex marriage legal.

So, three different laws. At one point, the Supreme Court found them all to be in accordance with the Charter and Canadian law in general. The truth is that the courts do not follow the Charter, they follow the political tide of the day, another tendency you claim they don't have.

That is incorrect. The charter has nothing to say about what a businessman does, it only applies to the federal and provincial governments

So, you believe that federal and provincial governments have never and never will make a law that affects the business world? I hate to break it to you, but there are labour laws in Canada, including laws on nondiscriminatory hiring, so yes, the Charter does have something to say about what a businessman does.

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.

So governments have never and will never make any laws concerning property ownership? Laughable.

Trudeau originally wanted to include property rights in the Charter, which doesn't make sense if, as you claim, property rights are no concern of the Charter. I also feel that the duration of governments, how often Parliament shall sit etc. are less fundamental rights and freedoms than the right to own and enjoy property, and yet these former "rights" are contained within the Charter and the latter is not.

They [supreme Court] only seem to be doing this because you don't agree with what they are doing at the moment.

The Supreme Court doesn't agree today with what they were doing last year, and then they didn't agree with what they were doing three years before that.

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.

If I may paraphrase that: the law and the protection of the law may not discriminate based on race etc. However, the law may discriminate based on race etc. to ameliorate a disadvantage. Sounds like self-contradiction to me. After all, if you pass legislation to favour one group (say, women) to "ameliorate disadvantage" you are automatically disadvantaging another group (in this case, men), so subsection 2 contradicts subsection 1.

[Boydfish]

dominant does not me it needs to replace everything before it. the charter doesnt cover land rights at all. but if a black man was forced off his land for being black, the Charter would protect him because it is dominant to any common law. it is "entrenched" because the charter rights are more important then any other. all the things that arent covered in the charter still exist, no need to reinvent the wheel. but the principles of the charter are dominant to everything else.

Um, you do understand what a "right" is? Correct? A right is something that cannot be taken away. Claiming that the Charter can take away my Common Law, Magna Carta, English Bill of Rights and Canadian Bill of Rights, but still claim that they are rights is contradictory.

By the way, common law rights would protect the person in your example.

The idea that the charter is the dominant is laughable on so many levels: It can be repealed and ignored at will by both Parliament and the Crown. It is also not even binding at the provincial level(Quick legal explanation here: Under the Westminster system of government...which all members of the confederation use...the elected legislatures are supreme. The "notwithstanding clause" is not really required, as the Legislature already have this authority, no matter what somebody in Ottawa writes.).

when you say your rights didnt change, you are wrong.

This is gonna be painful to watch....

as soon as teh charter went into effect your rights DID by definition change and broaden. just because you didnt see the effect on your nose that very moment does not mean it didnt happen.

Name one. Please. Name one right that I gained. It should be simple according to your description of how wonderful this document is.

At best, you can claim that the CCRF attempts to place restrictions on existing rights, but there is nothing in there that added a single right or even a single privledge.

as soon as the charter went into effect you acquired constitutionally protected rights.

Bzzzzt! I'm sorry contestant, but my rights were already protected constitutionally. Had been for centuries. You see, depending on how you look at it, either the Westminster System of government has no constitution or it has the longest in history. Please see the Magna Carta.

By the way, if you want to try and persue the "But the Westminster System has no constitution" arguement, then you also adopt the onus of proving why that having it constitutionally protected is in any way superior to the way that it was before.

the rights are not physical products, so of course you didnt see them.

My God. So this blessed charter of yours has no rights that you can articulate, but you ask that we simply have faith that there is something there? Excuse me, but are you trying to run a government or a religion?

charter became the highest law of the land and every citizen was protected from public discrimnation and inequality.

No, the CCRF became a section of a semi-amended BNA. The same things that protected people in the confederation continued to protect them. The highest law of the land continued to be the Crown and the will of the elected legislatures.

it did happen. you gained rights. the manifestation of those rights might be hard to conceptualize, but it did happen. and good thing it did for we are a better nation for it.

So name one. Give us an example. If it was as a profound of a change as you're claiming, this should be easy.

and when you point to common law or the other sources of law, they are NOT ENTRENCHED. that means they are not the same as the charter, there is only one absolute law of equality and that is the charter.

Um, yes, common law is entrenched, but your charter is the one with problems being entrenched. The Magna Carta is entrenched. The English Bill of Rights and the Canadian Bill of Rights, you can make an arguement, I suppose, that they are not entrenched. Of course, by doing that you prove that your CCRF isn't as entrenched as you'd like: Both were passed via the same houses that passed your CCRF as part of the BNA amendment, meaning that there is no legal reason or prevention from any Parliament from simply repealing the CCRF like it can any other legislation.

it added specific numerated concepts of equality and freedom

Ah ha! The first attempt at revealing what this blessed document adds to the mix! Too bad that it's wrong, in that those concepts were already in place, practice and common use for hundreds of years before Trudeau and his cabal came along: Nothing that was legal before became illegal, nothing that was illegal became legal.

But, as before, I'll ask again: Name one of these specific concepts that was not in the confederation before the Charter that sprang into existence as a result of the CCRF.

nothing you compared it to is near as important as the charter.

Why? The Charter is not new. It added nothing. It is no more entrenched or protected than my Common Law and other associated rights. It's only important to the Canadian Liberals because they wrote it.

[Morgan]

Boydfish,

1. The former leader of the NDP , Ed Broadbent, seems to disagree with you re: property rights being protected by common law, ergo, there was no need to re-state property rights in the Charter.

The NDP consciously and successfully fought the idea of entrenchment of property rights in the Charter for another reason.

Here's the sick socialist agenda as elucidated by Broadbent:

Ed Broadbent speaks at conference at McGill, 2001, about the socialist agenda

I believe accurately stated, the evolution of social democracy is best understood as an amalgam of our heritage of civil and political rights with new economic, social and cultural rights.

This combination first gained global prominence in 1948 with their incorporation in the Universal Declaration of Human Rights, the first draft of which was written by John Humphrey, a Canadian social democrat who taught law here at McGill University. To achieve true citizen's equality in Canada, we need significant improvements in fleshing out both our political and social rights.

In 1982 Parliament rejected proposals to include property rights in the constitution. We did so because of the fear that such entrenchment would lead to legal disputes that could jeopardize the more fundamental social and environmental priorities decided upon by elected legislators.

Pierre Trudeau said to me privately, and subsequently publicly, that during this period and earlier during the minority government of 1972-74, he would not have been able to get through his cabinet and caucus certain measures had it not been for the pressure from the NDP in Parliament .

2. Now getting back to the discussion topic of how Sharia law would work within the framework of Cdn. codified laws and Charter rights, what say you, Boydfish? I'd be interested in hearing your opinion.

[Boydfish]

Hi Morgan:

The NDP, which is essentially just the extreme left wing of the Canadian Liberal Party, really doesn't operate in the same reality that most people do. They have good intentions, but for the most part understand little of thier own rhetoric and less of the real world.

The reason that the Canadian Liberals and the NDP have such a big problem with understanding common law is because it runs counter to everything that they believe: Big, central controlled governments issuing diktats to the masses. Getting them to admit that rights other than the Trudeau Charter exist and are equal to their Charter of Repeated Rights that We Already Had is pretty much not going to happen.

The NDP, like the Canadians themselves, like the Charter in general. If you watch, in the next few years, the Charter will probably be amended to remove the portion that I cited that kept Trudeau's fingers off of the rights that really mattered, your Common Law rights. The logic will be couched in the terms much like the ones that SirRiff has been mouthing: The Charter is good enough. Why do you need anything else? Get rid of the other rights. Trust me, that's what you'll see from the Canadians in short order.

In terms of Sharia law being used in the mediation process...shrug...whatever floats the boat. It's not being incorporated in court procedure, nor is any party compelled to accept the process without consent. I won't be hauled into an Islamic Tribunals against my will, nor will anybody else.

I'm not a Muslim, but one of the biggest influences in my life came from a very strong Muslim gentleman. As such, I'm not that mistrustful of Muslims in general. I mistrust zealots of any stripe however. The Muslims have been tarred with a pretty broad brush lately thanks to the actions of some of the more extreme actions of Muslim zealots.

I doubt that this would be news if it was announced that the massive Chinese or Indian populations in BC are also permitted to do the same: It's only news because Muslim zealots are pretty hot in the news for the last couple of years.

[Neal.F.]

Boydfish,

That's just the problem. we need one law, and one only applied equally, and objectively, without prejudice, to ALL.

I too, agree that stonings in the public square is not a likely scenario for the immediate future, but find it very disturbing that Canadian courts intend to use the power of our government to enforce the laws of one special interest group, on its own members. Don't kid yourself, if a Muslim refuses to voluntarily submit to a sharia court under canadian jurisdiction, he/she will face ostracism at best, perhaps even vigilante justice at worst.

The real problem is that every little group , of course, vying to establish its tyranny/fiefdom over its own members, is going to demand that Canadian law enforces their traditional law from back home as well!

Not only does it threaten the very foundations of common law, but the Canadian Government and judiciary will actually lend legitimacy to the aspiring petty tyrants who seek to control theior countrymen through organizations, thus actually robbing these new Canadians of the PROTECTION they would otherwise have for their liberties under our system!

I once had a question put to me about support for state sponsorred multiculturalism ,and in my answer I made clear my concern that publicly funded multiculturalism actually poses a threat to the liberties of the minorities it is supposed to be promoting and protecting. You know as well as I do that money goes to groups whose leaders are loyal to the party in power, and will deliver the votes. Basically these are training grounds for new Liberals.

What we need to do is encourage people to break OUT of cultural ghettoes and find their way into society at large, where they will be free to live their lives to their fullest potential, limited of course by the guidelines (common law, based on Judeo-Chirstian tradition) that allowed western civilization to become what it did at its historical pinnacle.