Forget All Else: Islamic Law Comes To Canada

[SirRiff]

i dont know how more clearly to say this...

the charter is superior to common law, because common law is subject to change by simple legislation. common law and unwritten conventions can change and be eroded. teh charter sets a minimum standard, has clear ammendment and notwithstanding functions, and sets out the arena and interactions which the charter protects.

there is no way you can compare charter protection to protection by convention. one is a clear written factual entrenched document that is specifically drafted to set out equalites and rights. protections before the charter, while functional, are not nearly as visible, absolute, limiting to goverment, and fixed in time.

[Boydfish]

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

I understand what you're asking for and that it's a pretty defensible position, but I think that there will always be a desire to have your justice system, civil and criminal, to be operated by those that are literally your peers.

I do not feel comfortable being judged by a Canadian; I don't think that a Canadian can understand British Columbia or my national identity as a British Columbian. That's why it's vital that the Canadians keep out of, as much as possible, all affairs that are strictly the concern of British Columbia.

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.

They are not enforcing any special laws for the Muslim community, they are providing an alternate dispute resolution method. If nothing else, it should reduce the backlog in the civil and family courts somewhat.

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.

Then there are Common Law remedies for that circumstance: Signing an agreement under duress is not a valid agreement. This process is simply binding arbitration that happens to be done by a imam rather than an arbitrator.

If the intimidation is done via violence, then we arrest them. Then they stand in front of a judge. Period.

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!

This is a problem(Individual fiefdoms), but not in this regard. This process will only apply to mediation and arbitration of civil matters, not criminal. A imam will not be able to sentence people to default time, nor can they order enforcement measures. You'd need to go back to a judge to get the order enforced, which is where Common Law beats the hell out of the franco-socialist republican civil code crap that the Canadians have been trying jam down our throats: A judge can look at it go "Nah, that's stupid, get tossed.". Getting a civil order enforced is no easy feat, even for government programs that do it as part of thier mandate.

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.

I've often heard that the immigrants are the breeding ground for new Liberals in Canada(Remember, in BC, a Liberal is hard right wing, so I have to translate terms into ones both can understand.). I'm not so sure on this. This may be the case in Canada, but in BC, with the bulk of our immigration coming from the Pacific Rim, with a strong maritime merchant tradition, you'll find the average Chinese or Indian immigrant is just to the right of GWB in political terms. Big guns, big cars and big dollars defines large pieces of thier culture. Look at the tax structures in Taiwan and the PRC: Despite being literally at opposite sides of a civil war supposedly about communism v. capitalism, both use the same format. They don't use a flat tax, they use almost exactly the same concept of a sliding tax rate with one difference: The higher your gross earnings, the lower your tax percentage. The idea is that it creates encouragement to make more money, not less. Pretty odd that both communists and capitalists from China have the same idea?

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.

Actually, what put us at the top was trade and gunboats. The Royal Navy, then the USN, were built not for conquest but for collective maritime security of trade. We didn't get involved in trying to convert the locals, except in converting their currency to pounds. Our legal system is like our language, English: It's the Borg of legal systems. We absorb and adopt and thereby subvert others to our purposes. That's why you'll see a a Highland Regimental Band in Surrey marching wearing turbans, kilts and blowing on bagpipes.

We need to allow each culture to manage it's own internal affairs as much as possible.

[Brainiac]

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.

I did not mean to imply that we did not have rights before the Charter. We just did not have Charter Rights thus the rights that we had were not entrenched in the Constitution and they were being protected rather ineffectively. I believe only one statute was rendered inoperative over the 20 so years that the Canadian Bill of Rights was in force. It was also not seen as being effective because civil liberties were not being adequately protected in the Canadian constitutional system. As for the implied bill of rights theory, it is used to 'fill in the gaps' in the terms expressed in the constitution today.

It isn't so much that your rights changed when the Charter came into being, it was just that your rights are more effectively protected now that the Charter is in place. Besides, most people don't come across their Charter Rights until they are arrested. The Charter changed the ways police carried out their duties. The Canadian Bill of Rights only had the status of a statute, so the Government of Canada could affect those rights through other federal statutes. The Charter put the protection of your rights at the constitutional level and this led to a sharper focus and adherence to these rights.

The Charter also has the limitations clause that has been used to prevent such things as obscenity and hate speech as well as protect the unreasonable interference of government in the lives of people.

As for which document is superior in format and writing, I suppose that is subjective and based on, in your case, political prefrence.

[Brainiac]

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.

Was there a challenge to the marriage law? I believe the marriage law was in place before the Charter came into effect. Like I said the courts (as far as I know, if you can show me where they have...please do)have not gone out on their own to change a law. The law has to be brought in front of the courts before they can do anything about it.(usually on a Charter challenge brought on by an appeal from a lower court) That is unless the law was made after the Charter was put into the Canadian Constitution.

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.  No. But the Court felt the need to change a law that, up until 1999, they had not had a problem with.

Please cite me the SCC decision that did this. I would be intrested in reading it. I believe that it is a little more complicated and involved than you are making it in your statement. I think what you are referring to (but am not certain) was not the definition of marriage issue that we have today, but extending the rights of someone who was married (ie.privledges given to married couples by the government)to those in common law and same sex unions. The court did not change the law, they just extended the rights to the people who challenged the law. Whether the government changed the law, I do not know, it doesn't affect me as a person so I never looked it up.

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.

The Bill that you are referring to came as a result of the Ontario and BC court decisions. The Federal Government appealed those decisions to the Supreme Court and the Supreme Court said that the lower court rulings are constitutional. The reason the Feds ran the new bill past the SC is because they wanted to reduce the chances of it being challenged in the future. That doesn't mean that it won't however.

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.

I don't see how you have proven me wrong or proven your claims that the courts are not independent from the political process, or that they do not follow the Charter. The law is often very specific, and the courts often, but not always, rule rather specifically on the questions that are posed of them. Please offer some specifics so that I can get a better idea of what you are talking about...in the above cases I am assuming I know which examples you are referring to and I would rather not do that.

So, you believe that federal and provincial governments have never and never will make a law that affects the business world?

No I do not believe that the fed and prov. govts will never make laws that affect the business world. I was responding to your hysterical rantings of how the Charter protects employers from having to hire whites. You said:

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 does not tell the business man what to do, but the it does affect some of the laws that the governments make that have a more direct effect on the business world (ie Labour Law and Human Rights Legislation). So I suppose in an indirect way the Charter does affect the business world, but not in the way that you stated.

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.

So what is your point again. I am confused by your working of both sides of this discussion. First you say that the Charter protects employers from hiring you because you are white and then you say that there are labour laws preventing such things. I think I know where you are going with this, but I don't want to get into it at this time.

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

Yes they will and they have...but your property rights are not in the Charter, so it has nothing to do with it.

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.

Your logic and interpretation are very suspect. Yes, Trudeau wanted property right in the Charter, they were eventually not put in, thus the Charter does not concern itself with property rights. If Trudeau did get property rights put into the Charter, then the Charter would include property rights. Geez.

I 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.

I agree that property rights are important, but for reasons I don't want to get into they were not included in the Charter. They are elsewhere in other legislation though, but I don't think they are constitutionally entrenched. As for the other stuff you mention, that is important to make sure that the mechanics of the government are entrenched so we don't have, say the Liberals in power forever without an election, as an example. I think that is important as well and I am sure you would agree.

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.

Of course it sounds like a contradiction to you, you paraphrased it the way you think it reads. You do not understand the issues subsection(2) is trying to address. Here is an analogy. Think of two glasses of water...one is 1/2 full and the other is 1/4 full. If you add 1/4 to each glass there will still be one that is not as full as the other. So in order to get them equal, one glass requires more water than the other. Go get a Annotated Criminal Code from the library and read the Charter Section and its annotations, it explains the issue. The one problem I have with this section is when does it cease to be required? That is a question that only time can answer.

[Boydfish]

the charter is superior to common law, because common law is subject to change by simple legislation. common law and unwritten conventions can change and be eroded. teh charter sets a minimum standard, has clear ammendment and notwithstanding functions, and sets out the arena and interactions which the charter protects.

I'm sorry, I didn't realize that you're a new student to the concept of rights and the law. I suggest that you cover some basic texts and concepts before attempting to form and espouse an opinion on them.

To correct some of your more basic errors in your last post, I'll direct you to the Magna Carta as a starting point for written examples in Common Law. You'll also want to review the Judges Rules for an excellent idea of how suspects are to be questioned by law enforcement. The rulings are all written down; that's how they are cited in court.

As well, the Charter is just as subject to change and modification as Common Law, unless you're suggesting that the Canadians have abandoned the Westminster system of government. In specific, one the founding principles of the Westminster system being the supremacy of the elected legislatures(This means either the provincial or confederal ones). The amendment formula in the Canadian constitution and the CCRF is a nice touch, but no government is constrained to live with it. You might wish to research a key point on topic, in specific, how laws are created in the Canadian confederation. Heck, there is even a question if the CCRF could be overridden by a simple OiC.

there is no way you can compare charter protection to protection by convention. one is a clear written factual entrenched document that is specifically drafted to set out equalites and rights. protections before the charter, while functional, are not nearly as visible, absolute, limiting to goverment, and fixed in time.

Um, not only do you need a good primer on the history of rights, you clearly need one on current events as well: The Canadian Supreme Court recently "read in" sexual orientation into your vaunted charter. Not even the most ardent supporter of the document claims that the charter is "absolute" or "fixed in time"(Mainly, as you've now had pointed out to you repeatedly, because the document itself admits that it does not list all rights, just the few that Trudeau happened to like.). Not only does this blow out any idea that the charter is what you say it is, it also puts paid to your notion that Trudeau's amendment formula is anything other than a suggestion.

You seem to have the notion that Common Law means that the government and courts can do whatever they like: Nothing could be further than the truth. The charter ends up like that because it simply lists off a few small lines that the government may not cross, but Common Law requires that the government prove that what it has done is fair.

The easiest way to explain it is that the franco-socialist republicans who support the charter and it's ilk believe that the government is always right until proven to have broken the rules, while Common Law puts the onus on the government to prove it's actions just at every step. Why do you think that the vast majority...I mean like 100 to 1...of republics are tyrannical states? Another way to explain it is that charters and civil codes are like telling the government "Don't punch people", so the government is then free to kick, strangle, shoot and pepper spray them, just as long as they don't punch them. Common Law rights are more broad and involved in achieving justice: They do not draw absolute lines, instead draw on the common sense of the courts to abide by the concept of justice.

[Boydfish]

Hi Brainiac

I did not mean to imply that we did not have rights before the Charter. We just did not have Charter Rights thus the rights that we had were not entrenched in the Constitution and they were being protected rather ineffectively.

Excuse me, but you're doing it again: We did have every right in the CCRF prior to 1982. Every last one. The rights were and are just as entrenched. The CCRF does not confer any special status on those rights, the entire notion of a right being "entrenched" or "dominant" is like trying to express degrees of pregnancy: You are or are not. If a right is not entrenched, it is, by definition, not a right. Rights cannot be taken away(That's the whole point). If there is a method to take them away, then they're not rights.

I believe only one statute was rendered inoperative over the 20 so years that the Canadian Bill of Rights was in force.

This arguement holds zero water. You're claiming that the effectiveness of the Canadian Bill of Rights should be judged on the quality of legislation that was passed in those 20 years?

Assuming that your arguement is accurate, then you're claiming that a series of governments restricted by the charter which gets caught repeatedly breaking it's own laws(Which is exactly what happens when a statuate is rendered inoperative)is somehow superior to a series of governments that only breaks it's laws once? What interesting logic. Using that as a logic model, the neighbourhoods with the most arrests are the safest to live in, because the most laws get broken there.

It was also not seen as being effective because civil liberties were not being adequately protected in the Canadian constitutional system.

OK, assuming your statement is true, what, pray tell, are these new methods of protecting your civil liberties? No new freedoms created, so it can't be increased freedom. No new judicial bodies created, as you'll find the SCC predates your dear leader's tenure. Of course, that doesn't change that the SCC is not actually mentioned in either the original 1867 BNA or in the 1982 amendments, meaning that there is no specific constitutional protections whatsoever around the SCC actually ruling on or enforcing these constitutional protections that you're so enamoured with.

[Craig Read]

Boyd, good info in your post. Sharia law usurps the Constitutional laws of Canada, overrides the Charter, and is a deeply warped attempt to multiculturalise Canada. In fact it is not only warped, perverted and unjust, it is downright illegal.

This is just another sick example of Western loathing for its own traditions and cultures - and the hatred of its stupid white men.

Sharia Law - the problems with it:

1) All Muslim law is based on the teachings of Muhammad. An equivalent would be to base Canadian law on the detailed contents of the Bible. Under sharia, there is no separation of religion and state.

This is a great idea. I look forward to forcing Muslim women to stay indoors, or walk around together wearing tents so no one can see them. A right to abortion? forget it. Ditto for the right to drive, have sex or belch or free speech. Oppression of the evil female can continue apace in Canada.

2) In Toronto [where else ?] there is now a 30-member Sharia council. The council will establish a judicial tribunal to be known as the Islamic Institute of Civil Justice (Canada). And the IICJ will dispense Muslim justice under the Ontario Arbitration Act.

The rulings of an arbitrator can no longer be appealed to the courts. Civil law decisions by the new Muslim arbitration tribunal will therefore be final.

Great so we now have the Mullahs regulating their own little world in our society.

3) The obvious danger of a sharia arbitration system is that it will not really be voluntary. A Muslim man or woman who opts for a secular court instead of the local kangaroo arbitrator would be expelled from the Muslim community.

Fallacy of Sharia:

Arbitrators should be required to apply Canadian legal principles and values, not imported ones. That way, a Muslim could still be an arbitrator, and Muslims could still go to him for justice. But his decision would have to rest on Canadian judicial principles, or the arbitrator would be delicensed and the loser given recourse to the courts.

What is wrong with idea ? Nothing - it is just too damn logical for Canada, as it rushes into its post modern comatosy.

Is Canada so deeply perverted and weird that it actually hates itself ?

[SirRiff]

As well, the Charter is just as subject to change and modification as Common Law, unless you're suggesting that the Canadians have abandoned the Westminster system of government.

wow....talk about not knowing what you are talking about....

yes your are right, changing the charter is nothing. we will just get the house of commons, the senate, AND all provincial legislatures to agree, and presto, suddenly we can change the composition of the supreme court. better yet, lets just get 7 provinces with 50% of the population, and we can rewrite what we want to. back to reality...

give me a break man, i just finished reading several supreme court decisions, including the supreme court reference regarding Quebec succession and the S.C.C. again and again cites rule of law, and entrenched codified principles of canadian constitution as thier judgements.

i dont know why you think the magna carta would be the dominant legal document if you were in ontario court or something. or why some common law statue put forth by the province is what really matters. it doesnt. whever you get this idea from, its wrong and inconsistant with numerous supreme court judgements in both ratio decidendi and orbiter dicta. constitutional democracy is what we are now, and pretending that common law which can be legally changed on a whim is not the same as charter protection. really, read supreme court judgements to get expert perspective on the matter.

[Craig Read]

Sharia overrides all legal codes extant in any jurisdiction. This attempt to debase our jurisprudence only confirms to me that Canada and its so-called 'intellectual elite' hates itself and its society.

1) All Muslim law is based on the teachings of Muhammad. An equivalent would be to base Canadian law on the detailed contents of the Bible. Under sharia, there is no separation of religion and state.

This is a great idea. I look forward to forcing Muslim women to stay indoors, or walk around together wearing tents so no one can see them. A right to abortion? forget it. Ditto for the right to drive, have sex or belch or free speech. Oppression of the evil female can continue apace in Canada.

2) In Toronto [where else ?] there is now a 30-member Sharia council. The council will establish a judicial tribunal to be known as the Islamic Institute of Civil Justice (Canada). And the IICJ will dispense Muslim justice under the Ontario Arbitration Act.

The rulings of an arbitrator can no longer be appealed to the courts. Civil law decisions by the new Muslim arbitration tribunal will therefore be final.

[Hugo]

Go get a Annotated Criminal Code from the library and read the Charter Section and its annotations, it explains the issue. The one problem I have with this section is when does it cease to be required? That is a question that only time can answer.

s.15 is effectively useless to prevent discrimination because it is so vague. In Halpern et al v. Canada (2002) it was found that "the equality provisions of s.15 of the Canadian Charter of Rights and Freedoms are violated by the common law rule that defines marriage" (taken from the text of the ruling).

However, that case concerned nothing more than sexual orientation which is not listed as being protected from discrimination in the Charter. What the court actually admitted to doing was not acting according to the letter of the Charter but acting in the "spirit" they perceived to be behind it. However, you previously said:

The courts do not rule the way they do because they have a certain vision of what they think Canada should look like.

and you called me "ignorant" for believing that the courts did exactly what the courts admitted to doing in the text of the case that I cited above, which I invite you to read, since apparently you need to.

So, we have a document that outlaws discrimination except to ameliorate disadvantage. It does not define disadvantage, and it does not describe what measures may be undertaken to ameliorate it. It does define the groups that are to be protected however, as we have seen, apparently those definitions are not to be taken particularly seriously.

I agree that property rights are important, but for reasons I don't want to get into they were not included in the Charter. They are elsewhere in other legislation though, but I don't think they are constitutionally entrenched.

I think that's a problem. I agree that rules concerning the formation of government should be entrenched in a constitution, however, although property rights are entrenched elsewhere it would seem that, according to the case above where the Charter was used to over-ride family law, the Charter can be cited as good reason to override other laws.

If an NDP or even farther left-wing government wished to abolish private property there is nothing in the Charter to stop them, and if the SC was similarly left-leaning they could defend the action of the government on the basis that the Charter does not allow property rights.

If they were not, however, they would find nothing in the Charter that they could use to protect citizens from abuse by the State. I imagine that it would be impossible to bend the rules as was done in the aforementioned case, because there isn't anything in the Charter that could even be loosely interpreted as being in the spirit of defending property rights.

I was responding to your hysterical rantings of how the Charter protects employers from having to hire whites.

No, that's not what I said. What the Charter does is protect an employer's right to discriminate against whites if they can make a case that it is done to ameliorate disadvantage, and given how vague the Charter is that shouldn't be too hard for a good lawyer.

The scope of this is not defined. The Charter states that the Charter does not affect rights/laws defined elsewhere, but as we've seen from same-sex marriage cases in recent years that clause is apparently not to be taken seriously.

For example, say I'm an employer with only white employees. I decide I want to "ameliorate disadvantage" in my company by hiring more blacks so that they can enjoy my competitive salary and benefits packages. I employ a thousand people, so to be in keeping with the proportion of blacks in the population I am going to fire 22 white employees and make sure that the 22 replacements I hire are all black. Any white applicants will be disqualified because of ethnicity.

The 22 white employees I fired and any white applicants for their positions have, according to the Charter, no right to protest my action even though it was blatantly racist and discriminatory. There are laws elsewhere, as I said, to prevent this abuse but as we've seen, the Charter can be used to over-ride those laws, so those 22 employees cannot count on their rights being upheld in court if my lawyers trot out the Charter in my defence.

I don't see how you have proven me wrong or proven your claims that the courts are not independent from the political process, or that they do not follow the Charter.

They are independent from the political process by dint of the fact that they are appointed and not accountable. They do not follow the Charter because they are willing to read things into the Charter that are not there, and claim a breach of Charter rights where no such breach has occurred (see case cited above). In that case, admittedly, they gave Parliament 24 months to ratify their change (although in other cases they have not) but nevertheless, their change had no grounds.

[Boydfish]

yes your are right, changing the charter is nothing. we will just get the house of commons, the senate, AND all provincial legislatures to agree, and presto,

You don't seem to have even a basic grasp of how the Westminster System of Government works:

The supremacy of Parliament is unquestioned.

Before you think that means that the confederal government is in charge, that's not the case(The reason it's expressed that way is because it comes from British tradition: The Parliament in Westminster was the "top dog", so it kind of stuck.). The reference to "Parliament is Supreme" is to all elected bodies of Her Majesty's governments. That means that nobody, not even the Monarch, can overrule the elected Parliament, Legislature or Assembly. The Monarch can dissolve them and call for a new election, they can refuse to give royal assent to a bill passed by them, but they cannot usurp their authority. That means that the Monarch, or their representative, cannot directly order the Parliament or it's members how to vote. Otherwise, the vote of Parliament is not able to be overriden by anybody else.

The Canadian Parliament cannot amend provincial legislation, nor can the reverse happen. That's why trying to explain government health care policies in the confederation requires Tylenol to be administered pre-, during and post-explanation: Your constitution places health care specifically in the hands of the provincial government, but the Canadian Parliament passed it's own act of health care and has a minister of health. They also withhold funds that don't belong to them(Long story, but if you want to debate that, start another thread)to force places like BC that want no part of thier scheme to comply with it. Why would the Canadians bother with that if they could simply amend the British Columbian Medical Services Act to conform with their law?

The inclusion of the "not withstanding" clause was not done because Trudeau suddenly thought it might be a good idea to decentralize power from Ottawa; it was added because he knew that the provinces would simply disregard his Charter at will. I'll give Trudeau credit for that move(I didn't like him, but I will give him credit for being a brilliant tactician.). By adding that clause, it creates the impression that the Canadians are "permitting" the provinces to disregard the Canadians at will. The simple fact is that the provinces don't need the permission of the Canadian Parliament to ignore the CCRF for two reasons: #1-The Provincial governments are supreme within their borders. #2-The Canadian constitution says that the Provincial, not confederal, governments manage "Property and Civil Rights in the Province.", Section 92(13) of the CCA. No where does it give the Canadian Parliament the authority to make laws and charters. A first year law student could get the CCRF tossed as being ultra viries without the "not withstanding" clause.

suddenly we can change the composition of the supreme court. better yet, lets just get 7 provinces with 50% of the population, and we can rewrite what we want to. back to reality...

First, you claim that the composition of the SCC would require an amendment to change. In simple and basic terms: You are wrong

We do not live in a confederation of republics. Nor do we live in a republic directly south of the confederation. Just because the USAmerican Supreme Court is an official branch of the government down there, does not automatically mean that the SCC is as well.

The SCC is mentioned no where in your fabled constitutional protections. The Canadian government is authorized to create a Court of Appeals and "and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.", VII(101) of the CCA. It doesn't have to, it just can.

The SCC is organized under the Supreme Court Act, R.S.C. 1985, c. S-26. This means that the Government of the Day does not even need an act of Parliament or the Senate to disband the SCC; they may do so via a simple Order in Council if they so chose. So, if the Government of the Day doesn't like the SCC's direction...poof! Goes bye-bye. While I might understand the suspicion that all of the members of the SCC are complete morons when it comes to the rule of law and justice, I'm certain that they are at least competent legal technicians: They know whose pleasure they serve at.

i dont know why you think the magna carta would be the dominant legal document if you were in ontario court or something.

The Magna Carta isn't dominant. A right is a right. It's there always or it's not a right, it's a privledge. Your idea of "dominance" of one over the other is not possible. Since the CCRF acknowledges that all of my Common Law rights exist, why can't you?

or why some common law statue put forth by the province is what really matters. it doesnt.

Oh. Dear. Child, you really need to do some research on Common Law, the Westminster System of Government, Statute Law and probably a good dose of Civil Codes(Not that anybody with a ounce of sanity supports a civil code legal system, but seeing bad ideas in action helps highlight why they're a bad idea.). You seem to have latched onto this very sad idea that Comrade Trudeau's Charter is the be-all, end-all of rights and freedoms. It's not.

My rights under Common Law, as well as statutes other (By the way, can you cite a Common Law statute of Rights for me? I'd be interested in reading it.)than the CCRF, are just as valid as they are when repeated by the CCRF.

pretending that common law which can be legally changed on a whim is not the same as charter protection.

Hmmmm. Common Law can be changed on a whim? Quick, let's tell the lawyers! They spend all that time citing cases back to ancient English law to pad the old bill, right? It doesn't have anything to do with the judge having to follow that precidence, right?

Can it be changed? Sure. But so can your charter, quite easily, as you've now had outlined to you.

[Craig Read]

Boyd, i would agree - what then is the impact of the Sharia arbitration in Toronto on what you just mentioned ? It fundamentally challenges the legal order in Canada and creates a separate muslim religious jurisprudence.

To quote Hugo

The scope of this is not defined. The Charter states that the Charter does not affect rights/laws defined elsewhere, but as we've seen from same-sex marriage cases in recent years that clause is apparently not to be taken seriously.

Yes indeed. The Charter is an extra-legal process to bypass Parliaments. It is enthusiastically supported by minorities since going through fat white men in Parliament is a tiresome bother. Better and quicker to get Liberal judges to grant special rights, actions and statutes.

The Sharia decision in Toronto conforms perfectly to the Vision of the Charter of Rights - multicultural jurisprudence and rights protection.

It is nothing more than a logical extension of Trudeau Liberalism and the CoR - apparently supported by a vast majority of Cdns. I doubt that 90 % of the population knows a damn thing about the CoR - but they like it.

The Sharia-CoR process is another multi-cultural division of Canada into separate minority kingdoms each with its own interpretation of reality and law. The Sharia decision incredibly allows Mulsim-Koran religiosity to be used to decide legal issues.

What a country.

[Boydfish]

Boyd, i would agree - what then is the impact of the Sharia arbitration in Toronto on what you just mentioned ? It fundamentally challenges the legal order in Canada and creates a separate muslim religious jurisprudence.

It has zero effect.

The courts are able to now enforce arbitrations from the Sharia arbitrators, assuming that the person seeking remedy can prove that they have a valid agreement from the arbitrator.

I'm going to make this a plainly clear as possible:

The courts are not required to enforce the Sharia orders.

The first big thing that must be clarified is that this only affects civil law. Criminal ain't even on the table with this. If Person "A" punches Person "B" in the nose and both agree to go to a Sharia court to determine civil damages and the arbitrator says "B, you slept with his sister out of wedlock, so it was justified", it just means that "B" won't have a big cheque at the end of it. It doesn't mean that Crown won't/can't charge and have "A" convicted, fined and possibly jailed for assault.

If the "order" made by the Sharia court is not compatible with Common Law or Statute Law or even just being distasteful, then when they put it in front of the judge, the judge has the option of deeming the order "unenforceable".

This entire issue is a tempest in a teapot.

[KrustyKidd]

This entire issue is a tempest in a teapot.

You are right, it is. That's why these clowns should go back to where they came from if they don't like our law. Our law is good enough for Indians, whites, reds, yellers, blacks, homos, woman mounters but not them? See ya!

My Canada includes 1 SET OF LAWS not fifty, no matter how they configure, take apart, overlap, come together.

Say I'm a fellow Smuftie, I covet my neighbor's ass, he takes offense, hauls me into Judge Muhmar and I get sentenced into handing this guy a chicken in court. LOL, all better now. Who's time and money did we waste with this crap? And so now I go over to Redneck Bob and covet his ass (with a chicken ready in my pack for payment) and after kicking mine he sues the tail off the courts for not documenting me as an ass covetor.

Man, this is too much, so far, we have chickens, two types of asses(ok three) two laws and the potential for a lot of confusion. I think just being not soooooooo Liberal might be in order here.

[Craig Read]

Sharia arbitration clearly triumphs secular Canadian law unless the aggrieved party appeals to the court system to overturn the Sharia arbitration. This is costly, time consuming and entirely unnecessary.

Using Sharia arbitration is as KK stated the thin edge of the wedge. Once enshrined and used it will cascade into minority legal rights being represented by various cultures' laws and codes and eventually being on par with existing Constitutional codes.

Canada is NOT a muslim country. The fact that Sharia is even tolerated is a travesty and an example of self loathing.

[Boydfish]

Sharia law does not trump any other law in the confederation, especially the courts.

Nobody will be compelled to stand in front of them. Nobody. If they start rendering decisions that tend to be one sided, ex. always siding with the husband in divorce proceedings, then women will not use them. I think that you'll find that in order to survive in a modern society, an arbitrator must adopt the same expected degree of transparency as the courts, or people will simply not agree to use them.

This will help clear a great deal of the backlog in civil courts, in my opinion.

Thin end of what wedge? That people will be allowed to work out issues themselves? Without involving the courts directly? That means less of my money spent on it. Hurrah!

[Craig Read]

Boyd, you are missing the main aspect of this new development. I posted this before;

In Toronto [where else ?] there is now a 30-member Sharia council. The council will establish a judicial tribunal to be known as the Islamic Institute of Civil Justice (Canada). And the IICJ will dispense Muslim justice under the Ontario Arbitration Act.

The rulings of an arbitrator can no longer be appealed to the courts. Civil law decisions by the new Muslim arbitration tribunal will therefore be final.

The intention of the Sharia arbitration council is to solve disputes involving Muslims. Yes if a Muslim demands the use of the IICJ to solve a dispute he is now entitled to that process. This process is based on the Koran and has not one single link to Canadian jurisprudence. If the Sharia council renders a verdict both parties MUST abide by it.

It therefore DOES trump Canadian law. As i already said, you would have to sue to a higher court to overturn a Sharia council decision - and you would certainly lose - an enormous waste of time and money.

Canada is NOT a muslim country last time i checked. Sharia arbitration is unconstitutional and should be struck down the by Supreme Court.

[Boydfish]

But the Sharia court cannot enforce it's rulings, those must be enforced by the civil court enforcement order. It eliminates a step in the process, nothing more.

[KrustyKidd]

Got to ask this question every so often in this discussion. Why are we bringing this Sharia Law here to Canada? If these people are homesick, I know the cure.

Next, sure, maybe it can work with our law. Why though? I like my country just the way it is. I like knowing that we are all following the same rules, same law.

The last reason is just an observation; isn't law hard enough to deciepher as it is without introducing something foreign into it?

[Morgan]

KrustyKidd,

I agree with you completely. I am very disheartened about Ottawa's decision to allow sharia law to be recognized in Canada....period...whether it's for a fender bender or for a divorce, it's outrageous that the LPOC is pandering so transparently to the Muslim voters and in so doing is uprooting the traditions of Canada.

This is the sad consequence of multi-culturalism in your face combined with tyranny of the minority.

No sooner do gays, representing a humongeous 3% of the population, turn an ages old tradition of marriage upside down, saying it's a "right" they can no longer bear to be "denied" and then we hear that another 3% group[Muslims] say they can no longer be denied the practice of sharia law. What's next? What about about "minorities", the "downtrodden", and "disenfranchised" [i say that facetiously]start thinking like "Canadians"for a change?

Not only is sharia law an insult to Canadians, but has it occured to the bright lights in Ottawa that some of the Muslims who have immigrated to Canada have done so TO ESCAPE Muslim law?

And Boydfish, as optimistic as you may be by saying:

But the Sharia court cannot enforce it's rulings, those must be enforced by the civil court enforcement order.

...I think we'll discover that civil justices will just rubber stamp the sharia arbitrator's ruling.

Read this and you'll see how much Muslim lawyers respect the :

First steps to Sharia law in Canada Nov.23/03.

The president of the convention was barrister Syed Mumtaz Ali, who struck the first blow in the campaign for recognition of Islamic law in 1962. He was the first lawyer to swear his oath of allegiance on the Koran. 

"Now, once an arbitrator decides cases, it is final and binding. The parties can go to the local secular Canadian court asking that it be enforced. The court has no discretion in the matter. " 

[KrustyKidd]

I have to say that I'm a pretty easy going guy. Gays are just people, same as orientals, Pakistanis and whoever else is a minority. They never bothered me any. Kinda neat actually to see all the different stuff and variety in the way we look and act. That said, I didn't have a problem with gays until I started getting parades and marrige crap shoved down my throat, same with this. Want to make me look at them like they are idiots and should be treated as such? This is the way.

[Craig Read]

Sharia law is under Ont. Arbitration law and its rulings are binding. You can only appeal to a higher court and - gurantee it - you will lose. Sharia is based wholly on the Koran - this type of arbitration is out of place in a secular Western society.

This is just another step in CoR process of minority rights and discirmination. Soon each group will have their own laws - currently Indians and Muslims [in Ont.] have recourse to their own regulations.

You don't create a strong coherent nation on various levels of jurisprudence and conflicting philosophies.

I did not realise that the Majority of Toronto's voters had accepted Sharia Law.........just more dumb politicians and liberal leftists appealing to the emotional inner child in us all I suppose.

[Brainiac]

Hi Boydfish,

Excuse me, but you're doing it again:  We did have every right in the CCRF prior to 1982.  The rights were and are just as entrenched.  The CCRF does not confer any special status on those rights, the entire notion of a right being "entrenched" or "dominant" is like trying to express degrees of pregnancy:  You are or are not.  If a right is not entrenched, it is, by definition, not a right.  Rights cannot be taken away(That's the whole point).  If there is a method to take them away, then they're not rights.

All entrenchment means is that the Rights are included in the Constitution. When they are entrenched they do have special status, they are superior to all federal and provincial statutes. The Bill of Rights was a statute itself and was considered quasi-constitutional, however, it was not as protected as the Charter because it was not entrenched in the Constitution. It is true, many of the rights in the Bill of Rights are included in the Charter (I haven't been able to find mobility rights however, but that doesn't mean they aren't there). I am not saying that we never had the rights before, it is just that when they are entrenched in the constitution they can only be changed through a formal constitutional amendment. Another difference is the diminished power of parlimentary supremacy that leads to better protection for minority rights seeing as the parliment is elected by the majority. So it is the rule of law that speaks for the minorities instead of the majority.

As for our rights, they are not absolute...they are subject to reasonable limits(s.1 of the Charter), that can be demonstrably justified in a free and democratic society.

My arguement about the Bill of Rights is not suggesting that the laws passed before the Charter were more in line with the rights of the people of Canada, but that they were not being scrutinized as effectively by the judiciary under the Bill of Rights, as they have been since the Charter came into existence. In fact for its first decade the Bill of Rights had very little impact on Case Law and it was not clear if it could strike down a federal law or if it was simply meant to interpret the law. R. v. Drybones, [1970] S.C.R. 282 was the first and only case where a statute was made inoperative by the Bill of Rights, if you could find more I would like to read them. As for your crime example, it is based on a false assumption of my original arguement.

OK, assuming your statement is true, what, pray tell, are these new methods of protecting your civil liberties?

That would be the diminished power of the parliment like I stated above(in the way that the creation of legislation must be reviewed by the judiciary to ensure that it is constitutional).

No new judicial bodies created, as you'll find the SCC predates your dear leader's tenure.  Of course, that doesn't change that the SCC is not actually mentioned in either the original 1867 BNA or in the 1982 amendments, meaning that there is no specific constitutional protections whatsoever around the SCC actually ruling on or enforcing these constitutional protections

First of all, who exactly is my dear leader? You assume too much. You are correct, the SCC is not mentioned in the Charter per se, however s.24 of the Charter states: "Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances."

[Boydfish]

All entrenchment means is that the Rights are included in the Constitution. When they are entrenched they do have special status, they are superior to all federal and provincial statutes.

I understand what "entrenchment" is, the simple fact is that the CCRF is not entrenched in any meaningful way. As for it's "superiority", hardly. The CCRF freely acknowledges that it is a partial list of rights, thus my rights under common law are equal and valid, not subordinate to the ones repeated in the CCRF.

The Bill of Rights was a statute itself and was considered quasi-constitutional, however, it was not as protected as the Charter because it was not entrenched in the Constitution.

Except that the CBR and the CCRF were both passed by the same house in the exact same method. The CBR was passed as an individual act, the CCRF was passed as a sub-clause of an amendment to the BNA. There is no prohibition on the power of Parliament to amend, repeal or disband the CCRF in the exact same manner as any other act.

What the franco-socialist republicans Trudeau has spawned need to understand is that the Westminster System is still the form of government in the confederation. What one Parliament vote enables, another undoes.

It is true, many of the rights in the Bill of Rights are included in the Charter (I haven't been able to find mobility rights however, but that doesn't mean they aren't there).

The CBR is not the be all, end all itself either. It also repeats the exact same rights we had before it was written.

I am not saying that we never had the rights before, it is just that when they are entrenched in the constitution they can only be changed through a formal constitutional amendment.

The amendment formula for the constitution and the CCRF in specific are no more than guidelines for the Parliament to ignore at will. Nothing in the CCRF or the CCA/BNA says "Parliament isn't supreme any more". Since we have a lawful system of government under the Westminster model, that means that Parliament is still the boss, not some scrawling by a Canadian.

Another difference is the diminished power of parlimentary supremacy that leads to better protection for minority rights seeing as the parliment is elected by the majority. So it is the rule of law that speaks for the minorities instead of the majority.

Cite it. Show me where in your CCRF that it limits or otherwise modifies the supreme authority of Parliament.

As for our rights, they are not absolute...they are subject to reasonable limits(s.1 of the Charter), that can be demonstrably justified in a free and democratic society.

Obviously, rights are not absolute. It would make life impossible to live in the confederation.

My arguement about the Bill of Rights is not suggesting that the laws passed before the Charter were more in line with the rights of the people of Canada, but that they were not being scrutinized as effectively by the judiciary under the Bill of Rights, as they have been since the Charter came into existence.  In fact for its first decade the Bill of Rights had very little impact on Case Law and it was not clear if it could strike down a federal law or if it was simply meant to interpret the law. R. v. Drybones, [1970] S.C.R. 282 was the first and only case where a statute was made inoperative by the Bill of Rights, if you could find more I would like to read them.

But as I've made clear time and time again, the CBR is simply one of a multitude of sources, primarily from common law from which we draw our rights. The CBR didn't introduce anything new either, BTW.

That would be the diminished power of the parliment like I stated above(in the way that the creation of legislation must be reviewed by the judiciary to ensure that it is constitutional).

No, the Parliament had it's authority limited in no way, shape or form. As well, since the Parliament can, even retroactively, disband, replace or modify the SCC, it is no more subject to review than it was before.

First of all, who exactly is my dear leader?

Trudeau.

You are correct, the SCC is not mentioned in the Charter per se, however s.24 of the Charter states: "Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances."

OK, so if the SCC only exists by the will of Parliament, that means that it can be replaced just as easily. I'd suggest that there is no way around the fact that the CCRF is toothless and without effective enforcement abilities, "a law unenforced is no law at all".

[SirRiff]

this thread has the most lack of insight into law since the gay thread had lack of insight into genetics.

i will just point out on example of misinformation...

I understand what "entrenchment" is, the simple fact is that the CCRF is not entrenched in any meaningful way. As for it's "superiority", hardly. The CCRF freely acknowledges that it is a partial list of rights, thus my rights under common law are equal and valid, not subordinate to the ones repeated in the CCRF.

the fact that the CCRF is a partial list of rights is specifically mentioned so that additional rights beyond the scope of the charter are not denied on the scope they are not enumerated in the charter. there is no conclusion to be made that this means common law is equal. there may be additional common law rights, but they are not equal to charter protection.

people need to study the law in some matter before claiming they know what they are talking about. (same with genetics)