Well, Not A Bad Day, Eh?

[Michael Hardner]

Hmmm...

I'm not sure what my former adversary was referring to. Upon re-reading it in it's entirety, it seems to me that Section 15 was written to leave the door open for homosexual rights.

I can understand why that was done. Trudeau knew that a time would come when homosexual rights would be supported by a large section of the population, but not enough for an ammendment to succeed.

I'm changing my stand on the charter of rights. I don't think it's a good document. It says it protects individuals against 'discrimination' but doesn't put any kind of limit on what types of discrimination.

I still think that gay unions deserve equal treatment in the eyes of the law. And I still think it's hysteria to say that the justices will soon be approving of dog marriage or pedophelia, but there isn't anything there saying that they can't.

Nor is there anything saying they can't rule that the minimum wage must be doubled because it constitutes discrimination against the poor.

I think there should be a constitutional ammendment describing exactly which groups should be protected. Otherwise, what does discrimination mean ? It's meaningless unless you say what is being discriminated against.

[Lost in Manitoba]

By the way, speak out loudly and speak out often for your new party. Canadians who are curious about what they stand for will get a good sense of it from you.

I'd like to see you standing outside the Eaton Centre in Toronto railing on about the Liberals' plan to introduce dog marriage. You'll earn them a vote for every passerby

Hit the nail on the head, Michael. The attitudes expressed by guys like this are seen to be ridiculous by the majority of Canadians. As long as the Cons have spokesmen like this, they will never win the Fed.

[Hugo]

I'm changing my stand on the charter of rights. I don't think it's a good document.

Michael, that statement deserves a lot of respect, and I congratulate you on your intellectual integrity. You should also visit the thread on Sharia law, if you haven't, where the subject of the Charter and abuse of judicial power have been explored in more detail.

I still think that gay unions deserve equal treatment in the eyes of the law.

Let me ask you, do you agree with state recognition of incestuous and polygamous unions?

This is a leading question, and as I believe you are an honest and serious debater I will show you where I am going with this. There is not a single argument that can be levelled against incestuous and polygamous relationships that cannot also be levelled at homosexuality. I believe that disapproving of incest and polygamy while endorsing homosexuality is hypocritical at best.

And I still think it's hysteria to say that the justices will soon be approving of... pedophelia

Pedophilia has been legal in Canada for 15 years already. See Bill C-15, 1988. In Canadian law, anyone under 18 is a minor, but according to the criminal code a sexual relationship between a minor of 14-18 years of age and an adult of any age is perfectly legal as long as the adult was not in a position of trust or authority to the child.

[Galahad]

The whole damn problem started a lot longer back than in poor old Pierre's day.

It started with whoever decided to call the legal contract the same name as the religious sacrament... marriage.

But, now that it IS called by the name of one of the Christian seven sacraments...why are the religious zealots not all up in arms that heathens, infidels & atheists are partaking of their "sacrament"??

By George! How dare a Hindu or a Bhuddist say that they are "married"?? They're not even baptised & are going straight to purgatory or hell when they die!! The outrage!

Personally I think Sigfreid & Roy have embodied the sacrament of marriage, commitment & love a whole lot better than Ben & JLo.

But that's just my opinion.

[Galahad]

I'm sure the Liberals won't introduce the dog-marrying bill until at LEAST Martin's second term.

I agree.

But I bet that the dog-civil unionising bill is going to play a big part in this upcoming election.

[RT_1984]

Harper is not a fanatic. Prentice is no different than a liberal. Tax cuts won't cut it against Martin. Period. We aren't going to win many city ridings anyway so lets win as many rural ones as we can. This doesn't be theocracy but Harper would be the right mix. Prentice says there will be a place for socons but he has never elaborated. Furthermore, a prominent Calgarian who never went Reform/Alliance after 1993 should be viewed with scepticism. (except for Brian Pallister of course)

[SirRiff]

no offence to anybody that doesnt deserve it, but has anybody here actually read supreme court decisions concerning charter interpretation?

i have read many these past few months and they are very interesting if complicated. i recommend it, especially if you are going to try to speak intelligently on what teh charter does and does not protect.

I still think that gay unions deserve equal treatment in the eyes of the law. And I still think it's hysteria to say that the justices will soon be approving of dog marriage or pedophelia, but there isn't anything there saying that they can't.

Michael Hardner, if you really looked at the charter and some of the issues around it you would have known thats not true.

section 1 states

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

which specifically states that these rights are subject to limitations.

anybody who has actually read about charter rights would know the Oakes case. the Oakes case is THE definative case when dealing with the supreme courts views of charter limitations and the burdern on limiting them. you cannot talk intelligently one charter protection without references to Oakes.

in this case, a man was caught in possession of a small amount of narcotics. the police started using a policy which charged people in possession of narcotics with trafficking as well as possession. this was an effort to put the higher penalties of trafficking with more people to fight the drug problem.

well this oakes fellow took it to the supreme court of canada in a landmark case that defined the requirements of charter limiations. The court found that using a default assumption of trafficking was a reverse-onus burden on the defendant, which caused him not to be presumed innocent of the trafficking crime. instead, he had to prove he was not guilty of traficking as well as possession. they found this unconstitutional under the charter protection of presumption of innocence.

the truely important thing in this case is the specific methodology the court layed out for testing weather this infringement of rights would be constitutional in Canada. whether it met section 1 criteria as being "Demonstrably justified" in our "free and democratic society."

well the first part of the Oakes test was whether the cause was "pressing and substantial". they ruled that the fight against drugs was a pressing and substantial issue for the government and could be considered for a reason to limit charter rights.

the second part of the Oakes test was that the infringement of rights be 1) rationally connected to the goal, 2) minimally impair the target, and 3) be proportional in effect.

they found that the reverse onus presumption of innocence did not meet the rational connection requirement because possession of a small amount did not rationally imply an intent to distribute.

this is THE bedrock written principle on how government interacts with charter rights. so to all the self proclaimed experts on what a charter means and doesnt mean, its clearly written in supreme court of canada judgement that they have a specific recognition of how government can limit charter rights. i kept waiting for someone to reference a real supreme court case on this thread, since everyone seems to think they know what they are taking about when they declare the charter will authorize this or that, but nobody did. so finally i have enlightened some people about the actually factual, legal interpretation the SCC itself has taken on charter limitations. its all written down and just waiting to be read....

so to all those who claim the charter will protect all actions, let me inform you the SCC itself laid out rules for the government to act and what is required to limit the implied protections of charter rights.

any social policy that the goverment enacts for the good of Canada, like keeping pedophiles on the wrong side of the law, falls well within the scope of limitations and judgements specifically written into and unto the charter. thus the charter explicitly recognizes the possibility of limitations on the rights contained within it. the supreme court explicitly catagorized the requirements, and recognized that there were many instances where these limitations could be implied if the rights were ever cited as protection against goverment laws.

in summery, Oakes was the first SCC case to show that charter rights are no absolute, conditional on meeting the requirements of a "pressing and substancial" cause, a "rational connection" to the objective, a "minimum impairment" to the target, and a "proportional effect" of limitation to cause. thus anybody who says, like has been said here several times, that the charter will protect any deviant social behavior, is ignorant of the fundamental legal interpretation of the charter.

next time, read up on real canadian legal realities before claiming to know anything other then what is on judge judy.

sirriff

[Hugo]

next time, read up on real canadian legal realities before claiming to know anything other then what is on judge judy.

See M v. H (1999) 2 S. C. R. 3. Here we have a case of the Supreme Court overstepping their boundaries, reading into the Charter what isn't there, and actually admitting to acting according to the "purpose" of s. 15 without adhering to the letter of it.

That's a flagrant abuse of judicial power. If a law is felt not to represent the purpose behind it, that is a matter for Parliamentary amendment, not arbitrary judicial modification.

See also Halpern et. al. v. Canada (2002). Here again we have a case of a court, in this case the Ontario Divisional Court, ruling that s.15 of the Charter was violated when, in fact, it wasn't. In the text of the case, once again, the court admits to acting in the "spirit" of the Charter rather than according to the letter of it.

[Greg]

For those interested, we have M. v. H. summarized.

[SirRiff]

See M v. H (1999) 2 S. C. R. 3. Here we have a case of the Supreme Court overstepping their boundaries, reading into the Charter what isn't there, and actually admitting to acting according to the "purpose" of s. 15 without adhering to the letter of it.

the SCC specifically stated they need to take a "purposefull" approach to the charter several times.

why?

becuase the charter is specifically written in open and broad language to adjust to teh needs of society. imagine if it protected against privacy rights of written text but not cell phones. imagine if it protected discrimination against blacks but not gays. when society changed the judicial branch must interpret the framework of the constituation differently. if that is not what the people want, then they will elect an executive that will change the charter with the ammending formula provided in part 5, section 38, or 41.

can you really define what "right to privacy" means in a way that covers every single instance that may arise? no. can you really list every single instance of discrimination that may occur in the charter? no.

example. in the Constituation Act 1867 (formerly the British North America Act 1867) the framers of the constitution wanted a strong central goverment. When they layed out the division of powers between the provinces and federal powers, they listed some specific provincial powers, such as property and civil rights, natural resources, and local works. they then gave all "residual" powers to the central gov, but listed a few such as marriage and divorce, regulation of trade and commerce, as examples as to thier intentions.

these examples are contained withing THE fundamental written document of the canadian constitution. but what the hell did property and civil rights mean in 1867? not a hell of a lot. it was specificaly intended not to be powerfull compared to the central gov. up till 1949 when the supreme court of canada became the final court of appeal, the british Judicial Committee of the privy council consistently ruled in favor of expanding the concept of property and civil rights to include more and more jurisdiction. by the time things got settled, provinces had claimed most of the expanded powers from technological and society change.

thus Hugo, the constitution is obviously not meant to be a detailed exhaustive list of possible situations that may arise since 1867 or 1982. It is a reasonable framework reflecting the intentions of the time, but is specifically required to be interpreted by sucessive generations. there is an amending formula in the constituation for a reason. so popular consent can change it. there is an independant judicial branch for a reason, to interpret laws in terms of the current state of canadian society.

as i said before the drug war would not have been "pressing and substantial" in 1867, or ever 1967, but it is now. and judges interpret how the framework of the constituation fits Canada at any point in time.

so yes, obviously they have explicitly stated a "purposefull" approach is needed in order to deliniate what the intent and consequences of the protections of the charter are.

as for teh case you cited, the decisions given by the court seem to support the perfect funtion of the courts, they discussed section 1 limiations on rights and whether s29 of the family law act was in violation of s15 of the charter. they found that it did violate equal protection for several reasons, and that a s1 argument against limiting the right failed for several reasons which i also cited in Oakes.

That's a flagrant abuse of judicial power. If a law is felt not to represent the purpose behind it, that is a matter for Parliamentary amendment, not arbitrary judicial modification.

no that is what teh courts are for. they stop abuse even if it may be popular by the majority because it is contrary to the canadian constituation. its possible that the moral and ethical answer has not been addressed by the parliament for seveal reasons, and the courts cannot allow this to continue. if parliament wants to ammend the constitation and alter s15, they certainly can. they just need to get broad support accross canada. the fact that this hasnt happened means that most canadians accept these protections, which justifies the courts in protecting them.

this is a perfect example of what the courts SHOULD do, be a last line of defence against indifference of teh majority against a minority. IF, the majority feels absolutely to the courts, they have the power to change the charter. this hasnt happened. thus the courts were correct in thier role.

thus that example shows teh charter and courts work fine. i dont see the problem. my example above demonstrates the purposefull approach is not only reasonable and rational, but necessary to interpret broad constitutional concepts that maybe decades or even centuries old and apply them to modern society.

[Hugo]

the charter is specifically written in open and broad language to adjust to teh needs of society.

Laws are not supposed to be vague because that means they can be exploited. An example of this I gave before: say I murder you and am found guilty. I can argue that my Charter rights were violated under s.15, since the court was discriminating against me because I am a murderer. That is just stupid, and it's why laws are not vague wishy-washy documents but long and specific stipulations designed to cover as many possible situations as humanly possible.

You are correct, clauses exist for amendments and that is how the law is supposed to change to reflect changes in society - by the mandate of the people and their elected representatives, not by the whim of a panel of unelected judges, and not by the Prime Minister's buddies in the unelected Senate.

this is a perfect example of what the courts SHOULD do, be a last line of defence against indifference of teh majority against a minority.

Democracy is the indifference of the majority towards a minority! The Liberals form the government because they got the majority of the vote. Are you in the minority who voted NDP? Tough, you get to be ruled by the Liberals anyway. Popular law requires you to wear a seat-belt in a car. Are you in the minority that doesn't like to wear a seat-belt? Tough! Buckle up or go to jail. The majority of people want smoking restricted to adults. Are you a kid who wants to smoke or an adult who wants to let him? Tough! If that kid lights up or that adult gives him cigarettes, they go to jail too. Are you in a minority that speaks Urdu but not English or French? Tough! The majority of Canadians have decided that the official languages of Canada shall be English and French.

That's democracy in action, and if you feel like throwing that away I invite you to take a trip to North Korea and see how charming their society and political climate are.

thus that example shows teh charter and courts work fine.

No, it does not. I notice that since Boydfish blew your arguments on this issue clean out of the water you've done your usual trick of dropping that thread and repositing your highly dubious theories in another, but the fact remains that the Charter was as unnecessary in principle as it was egregious in the letter in the first place and has become a vehicle for unelected judges to trample democratic principles.

[SirRiff]

Laws are not supposed to be vague because that means they can be exploited. An example of this I gave before: say I murder you and am found guilty. I can argue that my Charter rights were violated under s.15, since the court was discriminating against me because I am a murderer. That is just stupid, and it's why laws are not vague wishy-washy documents but long and specific stipulations designed to cover as many possible situations as humanly possible.

what kind of dumb example is that hugo? that is something that a 7 yr old would argue. do you really think that s15 would justify murder in canada?

i posted a real example of how the SCC has decided what the charter protects and what it doesnt. if you had read it, you would know that your little excuse for a point that you describe as an "example" is not realistic. there are an infinate number of reasons why society and goverment would benefit from treating criminals different. the least of which is the benefit to society to prevent violent crime in any form. i hope you dont criticise anybody about the content of thier post on this threat after posting something like that.... next you will cover your ears and yell "NA NA NA NA I CANT HEAR YOU"

i also pointed out that its obviously imposssible to try to predict every conceivable way that a situation can arise. the framers of the constitution even realized that and merely pointed out some examples to try to give insight into thier intentions. i recall a well known canadian legal scolar writing that if nothing else, even the example of exact precedents with exact facts changes in the dimension of time if nothing else. thus there can never be an exact predent or interpretation because time will always have passed from one interpretation to the next.

it is just not conceivable to try to enumerate every possible situation that any constituational rights could be argued. its not even rational to suggest it. if you were truly a genius, and had figured out this before anybody else, why are there so many layers and legal framework in our system? why do we need so many courts. obviously, you have not discovered some lost secret, in reality, the actions of society can NEVER be predicted and since the beginning of recognized law to the present date, there have always been situations that need interpretation based on the current standards of society.

You are correct, clauses exist for amendments and that is how the law is supposed to change to reflect changes in society - by the mandate of the people and their elected representatives, not by the whim of a panel of unelected judges, and not by the Prime Minister's buddies in the unelected Senate.

first of all, judges do not change law. by definition they interpret it. they have judical review, they can invalidate statutes by interpreting the higher powered constituation. secondly, i am not sure if you accept the notion of judicial independance, but they are precisely not elected so they dont need to bend to the whims of the popular sentiment of the moment like politicians. these two principles are obvious. the only discussion is whether in democracy the trust of rights should at last resort left in elected members (the "supremacy of parliament" as in britian), or by independant judicial review of the consitutation (a "constitutional democracy" as we have here in canada)

Democracy is the indifference of the majority towards a minority! The Liberals form the government because they got the majority of the vote. Are you in the minority who voted NDP? Tough, you get to be ruled by the Liberals anyway

i was not refering to political parties, i was talking those protected and those not. like gays. regardless of what anybody thinks, Canada needs to protect gays against discrimation. similiar to what has been described as the "tyranny of the majority". it doesnt matter if the majority are too busy to care or notice or accept it, Canada as a nation protects the rights of minorites.

Popular law requires you to wear a seat-belt in a car. Are you in the minority that doesn't like to wear a seat-belt? Tough! Buckle up or go to jail. The majority of people want smoking restricted to adults. Are you a kid who wants to smoke or an adult who wants to let him? Tough! If that kid lights up or that adult gives him cigarettes, they go to jail too. Are you in a minority that speaks Urdu but not English or French? Tough! The majority of Canadians have decided that the official languages of Canada shall be English and French.

uh, those are not garunteed rights. there is no constitutional right to not conform to highway laws. there is no constitutional right to smoke underage. there is no constitutional right to speak in urdo. i dont know why you are talking about non-charter rights, they are meaningless.

charter rights are like gender equality. no matter what the majority think the charter protects equal treatment of men and women. please keep your eye on the ball and realize we are talking about the Canadian Charter of Rights and Freedoms and the rights garunteed within. seatbelts, smoking, and Urdu are not protected under the charter. get it?

I notice that since Boydfish blew your arguments on this issue clean out of the water you've done your usual trick of dropping that thread and repositing your highly dubious theories in another

you will excuse me if your opinion of great arguments dont impress anybody, as i still recall the genetics thread. boydfish doesnt even recognize Oakes and the purposefull approach theory of the SCC. my response to him pretty much shows who has read about this stuff and who hasnt. similarly with your assertion that smoking and urdu are comparable to gender equality under the charter.

not to mention that quote you posted of mine was responded to your assertion that its wrong for the courts to take a purposefull approach. it had nothing to do with boydfish regardless of how much you want to be his cheerleader. in fact i responded to him in a completely different post so i thought i was obvious that my response to you was complete and seperate. maybe that is why i put your name in capitals, so you can discern who i am talking to....seems like you need help.

and i dont need any cheerleaders when i can tell what is charter protected and what isnt (smoking and urgo arent by the way), the real reasons behind the purposefull approach laid out by the SCC (go read it, you have not in fact discovered that all lawyers and courts are unneeded if you just write more examples), i actually know why murder isnt a valid subject for charter protection, and lastly i kept my responses to you and boydfish seperate.

i am still baffled at how you can think that all the intelligent legal professionals in all advanced countries dont know what you know- just put more examples in guys! you should hold a press conference and tell the world the secret of examples. you could abolish and legal problems in the US and Canada overnight with your stunning insights. i am sure nobody ever thought of putting examples in. maybe we could even put every single example of every single situation that could possibly ever occur in every single law. thus we wouldnt even need courts anymore. groundbreaking.

[Alliance Fanatic]

Get rid of the charter of rights and that will solve all our problems. Lets look at what happened in the US, the founding fathers never dreamed that the constitution would turn America into a judicial dictatorship, and in Canada, we turned into a judicial dictatorship when Pierre Trudeau took over. So instead we should have a bill of rights, which should not be interpeted by judges but by the people, this could be done through elected representatives, or through a direct democracy, much like Switzerlands.

[Michael Hardner]

Get rid of the charter of rights and that will solve all our problems.

You could have the prospect of local by-laws (no pun intended) outlawing homosexuality in some areas, and other by-laws in cities forcing churches to adopt homosexual marriage.

The religious minority in Toronto needs as much protection as the gay minority in rural Alberta.

[RT_1984]

Harper doesn't have any significant baggage compared to MacKay. Prentice isn't qualified and could be the next Mulroney for all we know. He's never held office and is a good businessman. That sounds eerily familiar. He's also not as billingual as Harper. Harper is a fresh face. He's been leader for less than two years is only in his mid-forties, fluently billingual, has the support of most former Harris organisers, and will "accommodate" social conservatives. I am not a social conservative but I'm not stupid enough to think that the success of Reform and its core support and founding didn't have a strong element of that. almost 70% of Canadians are in favor of some restriction on abortion, while recently a new poll shows 71% of Canadians are against legalizing same-sex marriage while 1/3 would support using the nothwithstanding clause. Harper will also cream everyone in the debate with his expertise and broad knowledge. He will pick the best of social conservatism to attract Canadians and leave the rest with Mr. Day. That's what he's up to and its working. Given the statistics above, its absolutely insane that a major political party wouldn't take at least some advantage of that kind of atmosphere. Again, the CBC and lefty Canadian media doesn't have a monopoly on Canadian opinion. Look how far CA has come in ten years with our dismal press coverage. The unite Right, will give us more come election time and they will be forced to reckon with us. As Harper as previously said that if this party is all about tax cuts then it runs the risk of being indistinguishable from the Paul Martin Liberals in the next election. One thing is for sure: I really can't wait for the party when it does eventually take power, to privatize that entire bloody CBC. It has never reflected Canada and it never will. To think I pay for shows I don't watch like "Undercurrents" and "Made in Canada" gives me the creeps. Imagine the amount of government funded NGO's and outside political organizations and left-wing causes that would be systematically cut off from the purse strings if an concise Harper government got in which truly had broad intentions. In conclusion, Prentice, MacKay & company, are revisionist incrementalists. Harper is a revolutionary and would be the next Thatcher. Since I am not a partisan bigot, I would seriously consider joining the Liberals or an NGO if Prentice or another directionless leader were elected.

[Hugo]

do you really think that s15 would justify murder in canada?

No. The example was to show you how farcical the prosecution of law would be if the laws were vague. That is why the laws are not vague, they are precisely worded.

first of all, judges do not change law. by definition they interpret it.

They do change law, and I already gave examples of this. Canadian courts have moved beyond simple interpretation and if you had read those cases you would know that.

i am not sure if you accept the notion of judicial independance, but they are precisely not elected so they dont need to bend to the whims of the popular sentiment of the moment like politicians.

Oh - you think that the fact that all SC justices are nominated by the Prime Minister means they are immune to political trends? Absolute nonsense, Riff. Just look at the cases we're talking about here. Why weren't the courts protecting abortion rights before 1988? Why weren't they protecting gay marriage before 2002? Why were they sentencing gays to jail time before it was legalised instead of "fighting for minority rights" the way you claim they do?

The answer is that the courts move with the political winds just as much as politicians. The courts are still upholding your "tyranny of the majority", it's just that when Canada was mostly conservative they were imprisoning abortion doctors and homosexuals, and now Canada is mostly liberal, they are granting gay marriages and abortion-on-demand.

i dont know why you are talking about non-charter rights, they are meaningless.

I'm talking about them because you are whining about a "tyranny of the majority", and I am illustrating to you that that is what a democracy is, and if you don't like it, why don't you try living in a tyranny of the minority and see how that suits you?

you will excuse me if your opinion of great arguments dont impress anybody, as i still recall the genetics thread.

You know what I recall of that thread? I recall a bunch of primary sources and expert opinions cited by myself, answered by unsubstantiated chest-beating from you on why we should all listen to you because of your conveniently unprovable qualifications. I don't think anyone else in that thread bought it.

This thread is the same thing. You don't have the faintest clue what you are talking about, you don't know much about the SC and the way the judges are nominated, and you haven't read the cases you are citing. Basically, your idea is that the court system is great because they are doing what you want them to right now, although you seem to have amnesia when it comes to recalling cases 30-40 years ago when the exact same system was doing the opposite of what you would have wanted them to.

[SirRiff]

ok Hugo, let me try to extract some common principles that run through this thread

a) this idea of legal specificiy remedying need for interpretation.

the fact is that the BNA act 1867, the constituatin act 1982 and the Charter, and the US constitution are all written in broad pinciple form. not to mention various other laws in both the US and Canada,

IF in fact, your assertion that just being more specific would solve most of the need of judicial interpretation, WHY i ask you, did all the constutional law experts, prime minister legal representatives, provincial representatives, and interest groups who participated in the Charter creation not do what you think is obvious and put forwards broad pinciples of law?

basicially, if you think you are right, why has no constitutional document in the US or Canadas history been written to resemble your view?

in fact, all the experts in law who put together these documents, not to mention the PMs and premiers of opposing viewpoints, all agreeds broad pinciples were required.

the fact that all the experts and professionals have consistantly written in broad constitutional principles tells me that what you advocate is wrong, and what has been done sucessfully is right.

i see no other reasonable interpretation of why your desire for numbeous spedific examples to solve most problems has not been employed in the history of american and canadian constitutions.

this idea of judicial interpretation changing

with the idea of broad constitutional principles comes the idea of wide judicial review to reflect the current state of canadian society. after all a constitution is a timeless document that still needs to adapt to modern societies. Thus what you see as changing the law, is actually the powers specifically given to the judical branch by the executive in recognition that an independant (and they are independent, being secure in job till 75) interpretation is the best way to maintain some flexability as society changes. after all our constitution is 130+ years old.

as to your supposed proof of some judicial conspiracy..

Why weren't the courts protecting abortion rights before 1988? Why weren't they protecting gay marriage before 2002? Why were they sentencing gays to jail time before it was legalised instead of "fighting for minority rights" the way you claim they do?

the obvious answer is that only recently have this post Charter rights been within the scope of judicial review in the first place. also, only recently have these civil rights been paramount in society. after all women have only been able to demand equality since the 20s, blacks since the 60s, and gays since the 90s. the courts tackle the subjects that are appealed in the courts.

you would probobly use the same reasoning to say, why dont the courts cover bioethics before 2000? well , there were few concerns of genetic concerns before the last few years, so the legal system had few reasons to address them. the courts are there to interpret the constitution as a way of enriching canadian society. so obviously if gay rights become important in 2000, they are more likely to look at it different. that is the flexability that constitutions are supposed to have while still maintaining longlasting principles of equality. i dont see the problem here, it seems obvious to me why civil rights are more likely to be protected by courts in a equality conscious post Charter society.

You don't have the faintest clue what you are talking about, you don't know much about the SC and the way the judges are nominated, and you haven't read the cases you are citing. Basically, your idea is that the court system is great because they are doing what you want them to right now, although you seem to have amnesia when it comes to recalling cases 30-40 years ago when the exact same system was doing the opposite of what you would have wanted them to.

i know exactly how the SCC judges are nominated. i actually know about the history of provincial demands for participation in nominations too. do you really believe just because i recognize the high degree of judical independance in canada that i must not be aware of how they are appointed? that is a pretty limited and self defeating train of thought, which will impair your abillty to see and respond to the arguments of others. you should stop confusing acceptance of conflicting views with lack of knowledge.

i dont see a political conspiracy seeing as how they are secure in thier jobs for decades. and you claiming they are at the whim of the politics of the moment is nonsense. they have no reason to be- they get no more money, they dont get parades, they are well into thier upper ages by the time they are sitting, their pensions remain secure and unchanged, they do not seek political appointments at 75 when they retire, and so on. its just nonsense to even suggest some evil influence.

they are lifelong legal scholars who have no vested interest in pleasing the masses. they have secured positions and pensions and are among the brightest legal professionals in canada. you seem to be just crying foul because you dont agree with the new charter era of Canada, where most canadians actually want equality accross the board.

as for 30-40 years ago, i dont have amnesia about anything. i dont recall denying that it happened either, so you must be confused once again. whatever they did before, regardless of how i feel about it, is how the system worked then. if society was not concerned as much about gay rights, then of course courts are not likely to focus or interpret them in that way. why are you even talking about them, i never mentioned them or denied them, man you are just all over the place on this.

neither you or the other dissenters seem to know about the real decicions and real judgements the SCC has laid down in charter interpretation. as i have said before, Oakes is the definative cause taught in depth at every law school accross canada. if you did study it, you would see the thinking and perspective of the recent SCC.

your examples of the vaugeness of law, of murder being argued as protected, of civil rights recently being high lighted, shows no understanding of how the SCC chooses its cases in the post Charter era, or how it itself has described the process of balancing compeling interest of goverment in limiting rights and the protection of equality.

like genetics, i have spent alot of time reading the primary literative, namely SCC decisions, judgements, and dissents written by the judgements themselves, especially on charter cases. none of it supports your ideas of specificity and political interference. and a i mentioned above, even a reasonable look at everyday life doesnt support the idea that you know how to solve the problem with constituations better then every man who has written them in the US and canada. obviously broad principles have worked for two of the oldest and most successful constituations in teh world, the US and Canada. and this idea of recent political interference is horribly ignorant to the post charter legal environment and society, which speicifically promotes civil rights of gays and women, thus removing the whole political theory.

for everything this is wrong with current Charter realities in Canada, they are 100 things right.

Oakes is briliant by the way, and a necessary basis for discussions about what the framework is for deciding what is and is not protected by the charter. nothing can be discussed before taking that decision into account.

sirriff

[Hugo]

in fact, all the experts in law who put together these documents, not to mention the PMs and premiers of opposing viewpoints, all agreeds broad pinciples were required.

Because the constitution is not meant to be applied to anything but the means of government, about which it is precise. Note the precision of the Charter as it applies to terms of office, and note also the section where it is stated that the Charter will not override other law, which is intended to compensate for its vagueries in allowing it to stand aside for more accurate laws.

Of course, the "experts in law who put this together" knew this. That's why it is like that. The problem here is that the courts are using the Charter in a way that it should not be used and in a way that the Charter itself states that it cannot be used, which you seem to be claiming is not an abuse of judicial power.

i dont see the problem here, it seems obvious to me why civil rights are more likely to be protected by courts in a equality conscious post Charter society.

It seems obvious to everyone with half a brain, Riff. The "problem" is that once again, you were utterly wrong in your assertions. You had previously said,

they are precisely not elected so they dont need to bend to the whims of the popular sentiment of the moment like politicians.

And then you were proven wrong, that judges do bend to the whims of the popular sentiment, to which your response was basically "so what?" So I ask you - just what on earth are you arguing exactly?

and you claiming they are at the whim of the politics of the moment is nonsense.

What is "nonsense" is for you to have said that just a paragraph or two below your contention that courts in fact do reflect the politics of the moment. It seems to me that your specialty is self-contradiction, the accusation of which doubtless sounds familiar to you by now, after all the threads in which you have mindlessly shot down your own arguments with very little assistance from others.

like genetics, i have spent alot of time reading the primary literative, namely SCC decisions, judgements, and dissents written by the judgements themselves, especially on charter cases.

Once again, I'm astounded by your claims to great knowledge of a variety of complex and nuanced subjects when it seems that even correct English escapes you at anything more than a 6th-grade level. The fact that you have yet to disclose your much-vaunted qualifications leads me to believe that if they exist, they come from one of those dubious univerisites whose final exams are multiple-choice and for whom the ability to write a coherent essay is not a requirement.

Anyway, once again your argument here seems to be that you are an expert, for reasons we cannot be told, because of qualifications you neither disclose nor prove, and we should take your word on everything you say when every word you do say is not only torn to shreds by other posters, it is in fact torn to shreds by you.

You claim to have done a great deal of research, but so far you have only ever cited one case in your defence and you have never referred to the actual text of that case to make your point. It's not enough to claim to have done research, Riff, you actually have to prove you did it and cite it correctly - which you should know if you are, in fact, the holder of a degree in anything.

[SirRiff]

Hugo, so much bark and so little bite.

i am not sure if you are trying to make yourself feel better, or cheerleading for someone else again, but you cant even rant right.

Because the constitution is not meant to be applied to anything but the means of government, about which it is precise

the charter is specifically designed to apply to gov-citizen interactions. courts have also interpreted it to be limited to this role.

what exactly does the "means of government" mean anyways? how government operates? thats not what the charter applies to, it applies only to how citizens and government interact. it limits the actions of governments in truth, in how it deals with its citizens.

in fact constitutions may not even be precise about the government as the original BNA 1867 act did not cite a PM, or cabinet, or supreme court, or even an ammending formula. much of the canadian constitution is of custom and convention, so what you said above that it is precise relating to government is not true as any student of constitutional law will tell you.

so both those points are false. in fact the charter and other parts of the constitution ARE ment to be a broad framework which is rigid enough to sustain its principles yet flexible enough to stay relevant.

the charter specifically applies to government-citizen interactions. and it is specifically broad to fulfill that role. i cant understand your perfect english and what the means of gov are, but i am sure you will explain. because in fact the charter is applied to gov-citizens interactions only, and is both broad and limited in that role.

And then you were proven wrong, that judges do bend to the whims of the popular sentiment

i was proven wrong? where, in your head? please explain for those of who who dont live in your head, where is this proof?

well lets see...a slim majority of canadians oppose gay marriage, yet the SCC supported gay exclusion as discrimination.

so we have the judges doing the right thing regardless of what the majority say at the moment. so i am right, they do not flip flop by the current poll of the day, and have consistently protected civil rights since teh charters inception.

dont you find it odd to have such a simple example sitting right in front of your face? its so obvious its even hard to understand why it would need explaining. courts often make controversial decisions that lead the way for new rights, whether it is segregation, abortion, or gay rights. this is just obvious. each were not the majority decision when first tackled. the careful reaction of the canadian and US govs tells us clearly that the majority do not embrace gay marriage with open arms, even though both countries courts are finding exclusion discriminatory. thus its clear any claim that the courts are shown the way by the people is wrong. gay marriage is just one of many examples where teh courts lead the way.

What is "nonsense" is for you to have said that just a paragraph or two below your contention that courts in fact do reflect the politics of the moment.

uh..i dont think i said the politics of the moment..try reading next time, what exactly did i say that so bothers you? this imaginary stuff has to end hugo, you just end up talking to yourself. if you think i have contradicted myself in error or otherwise, you probably read it wrong. i have said that courts need to reflect the changing constitutional landscape of society. example, after the charter, a new era was made. doesnt matter what side the public was on, teh courts had the power to enforce equality rights. this is simple stuff. if the majority agree is pointless, the charter trumps polls.

all your ranting and raving about someones argument, yet you never really point out what you think is wrong you just refer to it vaguely and assume you are right. what is it about this i-didnt-get-it-so-it-must-be-you-and-i-win' philosophy? it seems rather childish. if you read things nice and slow....you will see....that there is no conspiracy and everything i say is real....

You claim to have done a great deal of research, but so far you have only ever cited one case in your defence and you have never referred to the actual text of that case to make your point

ONLY 1??? i cited the ONLY one that laid the foundation for all charter limitation cases. and i realize you dont know this, but i did cite actual judgement of that case, the so called "Oakes test" that every first year law student knows as teh definitive court framework for approaching charter rights. my god man, you dont recognize the most important case in charter rights history (its the Roe v Wade of charter rights), you dont recognize the most well known case precedent to come out of it, namely the test for charter protection.

hugo, if you dont know Oakes, and cant recognize the Oakes test, you know NOTHING about canadian charter precedent and judgements. nothing. everything you copy and past after that is pointless if you have not read the entire oakes judgement. even if i posted 10 cases after that, they all rely on the oakes precedent, so that is why i focused on oakes becuase its 99% of what you need to discuss charter rights in canada.... i cant believe you think the number of copies and pastes of other cases are a better way to discuss this rather then a comprehensive look at oakes. charter law is not like checkers, the most dont win. adn every other case that could possibly be cited, cites oakes in its standard.

Once again, I'm astounded by your claims to great knowledge of a variety of complex and nuanced subjects when it seems that even correct English escapes you at anything more than a 6th-grade level. The fact that you have yet to disclose your much-vaunted qualifications leads me to believe that if they exist, they come from one of those dubious univerisites whose final exams are multiple-choice and for whom the ability to write a coherent essay is not a requirement.

you know its pretty pathetic when you resort to questioning 'qualifications', as if a qualification is needed for you to rant and rave vaguely about people without really responding to what they say. as above, i never said courts should respond to the 'politics of the moment' or whatever you said, this 'proof' of bending to the whim of the majority you speak of is news to me, i dont recall it (actually i showed it doesnt exist with gay marriage specifically).

if you are so concerned about qualifications, i notice you have never proved your own, which it seems you would be proud to do if you have a genetics or law degree. very telling.

well i can safely guess you are not a genetics professor or a lawyer, but if you are a brain surgeon or something please share. my head has been hurting of late and i may need some evil spirits removed...

actually you misread what i said again, i said i have actually read SCC judgements in full, not just copy and past a line here or there from a google search. if fact i got a legal text right on my desk here which contains many majority judgements and dissenting opinions of the last 50 years. this is the kind of stuff you need to read before you make this wild claims about the charter. like i have said many times, teh fact that niether you or anybody els can even cite Oakes as the defining case of charter limitations tells me that nobody here has read anything of value on the subject, much like the genetics thread.

and it is a complex subject, the legal terminology is hard to digest most times. my english is fine man, a few typos never hurt anybody, and i type really fast, so you will just have to guess what "teh" is supposed to mean. i wouldnt criticize anybody if i was you with your loosely associated rants. if you actually cared to read what i said it would make perfect sense, but you just read the first and last sentence, then post 4 paragraphs incorrectly interpreting what i said and how it must be wrong because you dont get it.

what qualifications do you require exactly?

i have a 4 year honors genetics degree from the university of western ontario and i am currently pre law. i have worked in genetics labs and the aerospace industry.

want to know my shoe size?

why exactly would you think the piece of paper makes a difference. try reading in complete sentences without proclaiming victory in your head every paragraph and it will all make sense.

which law school did you go to harvard or something?

i am sure when you cite your qualifications in genetics and law in your next post it will all be clear and i will be shown how superior your insight is. i await shock and awe.

please list the degrees in chronological order with links to your tenor at each institution.

PS- i would never let qualifications talk for me anyway. i can talk intelligently about genetics enough that anybody with a clue should be aware i have sound insight. having a clue is hereditary i think (that means genetically encoded and passed on through the generations for the genetically impaired.)

PPS- this is my favorite quote of yours this time;

The fact that you have yet to disclose your much-vaunted qualifications leads me to believe that if they exist, they come from one of those dubious univerisites whose final exams are multiple-choice and for whom the ability to write a coherent essay is not a requirement.

yes i do agree that univerisites are dubious.

i guess i can cross english professor off the list too eh?

"hello kettle?"

"yes this is pot, you are black"

sirriff

[Hugo]

my head has been hurting of late and i may need some evil spirits removed...

I can well believe it. Let's begin the exorcism.

the charter is specifically designed to apply to gov-citizen interactions. courts have also interpreted it to be limited to this role.

The Charter was a part of the Constitution Act of 1982 that defined a citizen's rights, that Constitution Act being an update to the Constitution Act of 1867 which gave Canada full political independence from Britain. The original 1867 Act defined the operation of Canadian government and nothing more. Yes, it was vague and a lot of Canadian government is done according to convention, however, vaguery is not the norm in law. Go and read the Criminal Code and tell me how vague it sounds to you.

In four paragraphs on that point you have not actually cited any evidence to prove your argument, not that that surprises me. I invite you to do so now, but experience leads me to believe that you will decline, yet again.

i was proven wrong? where, in your head? please explain for those of who who dont live in your head, where is this proof?

I already quoted you contradicting yourself. I will do it once more, and that is the last time I will do your reading for you, OK?

You said:

they are precisely not elected so they dont need to bend to the whims of the popular sentiment of the moment like politicians... you claiming they are at the whim of the politics of the moment is nonsense.

and then you said,

civil rights are more likely to be protected by courts in a equality conscious post Charter society.

So, first you say that courts don't bend to popular sentiment, but then you state that courts are more likely to uphold rights if society is rights-conscious. That is bending to popular sentiment, Riff. You have said that what a court is likely to do depends in large part upon social mood.

so we have the judges doing the right thing regardless of what the majority say at the moment. so i am right, they do not flip flop by the current poll of the day, and have consistently protected civil rights since teh charters inception.

Surely you jest! I just asked you why it was that your precious courts used to send abortion doctors and homosexuals to jail, and your reply was that they are more upholding of rights in a rights-conscious society! Now you are back to claiming the opposite, again!

You are absolutely ridiculous. Go away, and stop wasting bandwidth.

[SirRiff]

they are precisely not elected so they dont need to bend to the whims of the popular sentiment of the moment like politicians... you claiming they are at the whim of the politics of the moment is nonsense.

civil rights are more likely to be protected by courts in a equality conscious post Charter society.

hugo you actually think these contradict each other?

do you even know what contradict means?

the first one points out that judges are not elected so they dont have to appeal to the masses and can make unpopular decisions, like womens right, protection of minorities, and now gay rights. they are not at the 'whim' of politics because they dont need to appeal to the masses like politicians about tax cuts and all that crap.

the second one simply points out that after the GOVERNMENT created the charter the courts MUST abide by it, which will result in greater protection of civil rights. their particular interpretation may vary a bit, but they have no choice but to comply with the charter. thus rights are more protected because of the charter, not of the opinion of judges.

all this ranting and this is what you are so focused on?

these two points are not mutually exclusive.

the courts did not choose the charter, but they must obey it. thus simply doing thier job and obeying what the federal gov and provincial govs created. this in no way reflects thier actions.

you seem to be confused about who made the charter and who impliments the charter.

the government made the charter

the courts must follow the charter.

i dont know why you have a problem with these two very reasonable and rational statements. both are true, and they are not mutually exclusive.

PS- we are all still waiting for your qualifications and lists of impressive credentials in genetics and law

sirriff

[Hugo]

No, Riff, enough time has already been wasted on you. Your posts here are like your posts everywhere: unsubstantiated, self-contradictory drivel. I have already explained this to you in very clear ways, whether it is the case that you cannot understand or merely pretend not to understand is irrelevant.

As to my qualifications, since I cite sources and don't expect people to take my word for things I don't need to provide them.

[SirRiff]

No, Riff, enough time has already been wasted on you. Your posts here are like your posts everywhere: unsubstantiated, self-contradictory drivel. I have already explained this to you in very clear ways, whether it is the case that you cannot understand or merely pretend not to understand is irrelevant.

translation= its obvious all the time you spent ranting about some phantom contradition were misplaced after its obvious my language was specific and targeted.

As to my qualifications, since I cite sources and don't expect people to take my word for things I don't need to provide them.

please see the genetics thread....namely.

Here's how it works. A heritable characteristic is one that tends to run in families but has no grounding in genetics.

a striking example of not asking people to take your world for it, citing your sources, and not needing qualifications.

gotta love someone who questions the qualifications of others then runs when presented with a chance to prove his own. pretty pathetic hugo, question someones education, intelligence, yet shut up quickly when your turn comes up.

oh wait, was that another contradiction?

sirriff

[Lost in Manitoba]

Interesting article on epigenics in this months SCIAM.