Canadian Election Tread (part deux)

[Ben Kenobi]

Section 15 says that everyone is entitled to the same benefits from the law. If we left it at that, then governments could not create programs to help the elderly, the deaf, the blind, etc because these programs do not provide equal benefits to all. Recognising the need for these programs, the Charter includes a subsection making it legal to create these programs.

This is common sense stuff. Only a fool would object to these clauses.

I suggest than that you read NYE's comments. He's not objecting to you at all.

This would save you much time in needless rebuttal.

[Flinx]

"The Notwithstanding Clause"

http://www.solon.org/Constitutions/C...h/ca_1982.html

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or section 7 to 15 of this Charter.

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

(5) Subsection (3) applies in respect of re-enactment made under subsection (4).

Note that the notwithstanding clause can only be used for a five year period and then must be re-invoked (i.e. voted on again) if the legislature wants to continue to negate the application of a section of the charter to a particular law. In this sense, the notwithstanding clause is not a permanent solution but rather a copout.

1. 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.

This means, for example, is that while

2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other means of communication.
(c) freedom of peaceful assembly; and
(d) freedom of association.

You and your friends cannot hang-out in my living room without my permission.

Everyone agrees that child pornography is ‘a bad thing,’ but what about a book by a victim of child abuse telling his/her story and including some of the actual material produced. In the hands of pedophiles this material is clearly child pornography, but in the context of such a book many people would argue it is not, that there is a ‘public good’ served by the material. We need to write our laws in such a way that the pedophile is punished (I’m keeping it simple!) for making and possessing such material while at the same time allowing a victim to stand-up and say ‘this’ was done to me. Our laws cannot be black and white when the things they refer to are grey.

First they came for the Jews
And I did not speak out –
Because I was not a Jew.

Then they came for the communists
And I did not speak out –
Because I was not a communist.

Then they came for the trade unionists
And I did not speak out –
Because I was not a trade unionist.

Then they came for me –
And there was no-one left
To speak out for me.

Pastor Niemöller, 1938

[Ben Kenobi]

In this sense, the notwithstanding clause is not a permanent solution but rather a copout.

False dilemma.

There are very good reasons why the Notwithstanding clause expires after 5 years. This forces the government that uses the clause to win an election before they can renew the exemption.

If we allowed for no notwithstanding clause, then an important check to the judiciary falls away.

If we allowed for a notwithstanding clause without an expiry date, than the Charter would be too weak, and one parliament could enact legislation that would be difficult for future parliaments to remove.

It also opens too much possibility for abuse.

For both these reasons I like the wording of the Notwithstanding clause in the Charter.

Everyone agrees that child pornography is ‘a bad thing,’ but what about a book by a victim of child abuse telling his/her story and including some of the actual material produced. In the hands of pedophiles this material is clearly child pornography, but in the context of such a book many people would argue it is not, that there is a ‘public good’ served by the material.

There is no need for a 'public good loophole.'

Rather, one looks at the purposes for the material in the first place. The material is not published with the desire to provide the pedophiles with new material, but rather to shame the pedophiles, and to bring to the light their actions.

I rather doubt they would get off the descriptions of abuse, even if they were pedophiles.

Our laws cannot be black and white when the things they refer to are grey.

I think the quoted section to eliminate the untested public good defense closes a loophole that will be exploited by these pedophiles to harm children.

[Ben Kenobi]

First they came for the Jews

Very true.

One should stand up for the vunerable, the children, over those who wish to harm them.

[Flinx]

Ben do you actually believe the things you post or do you just do it to get other people going?

The notwithstanding clause has nothing to do with giving legislators the ability to override the courts. The constitution is a law passed by elected politicians, and it requires every other law to conform to it. The notwithstanding clause gives legislators the ability to exclude some laws from the requirement of conforming to the constitution. The five year limit on the notwithstanding clause has nothing to do with our cycle of elections, a new government (or even the old one) can repeal any law it wants whenever it wants. The five year limit is a reaffirmation that the rights and freedoms outlined in the charter are indeed Rights that everyone is entitled to and the limit is to remind the legislators that they are denying people those rights. You quote this section of the constitution as if it was imposed by judges on politicians and it somehow diminishes our society; this section of the constitution was written by politicians doing what they thought was best for Canada.

The ignorance you exhibit and promote concerning the hard won freedoms our society has enshrined in institutions over the past three thousand years is shocking and despicable. There is a reason why we have a separation of church and state; there is a reason why we have a House of Commons and a Senate; there is a reason why every person has one vote and only one vote; there is a reason why there is a separation of the legislature from the courts. Go spend some time learning about all of these reasons before you naively advocate changes which will set our society back to a state last seen before the time of The Christ so many people with your views believe in.

[Ben Kenobi]

Ben do you actually believe the things you post or do you just do it to get other people going?

Does a troll put this much effort in?

The five year limit on the notwithstanding clause has nothing to do with our cycle of elections, a new government (or even the old one) can repeal any law it wants whenever it wants.

Not so. Why then did they come up with the date of 5 years? Arbitrary?

You quote this section of the constitution as if it was imposed by judges on politicians and it somehow diminishes our society; this section of the constitution was written by politicians doing what they thought was best for Canada.

The five year limit? I'm arguing in favour of the five year limit. It's in the current notwithstanding clause, and should be kept.

Even though the terrible Trudeau had a hand in the Charter, I have no beef with this section, nor do I accuse him of doing anything else than what he thought best.

There is a reason why we have a separation of church and state;

And what is this reason? How does the Charter interpret religious freedoms differently than in the US?

there is a reason why we have a House of Commons and a Senate;

So we can emulate the Americans, and give jobs to liberal nominees who lose their elections?

there is a reason why every person has one vote and only one vote;

Except in PEI.

there is a reason why there is a separation of the legislature from the courts.

Yeah, so no one else gets a say in our top judges other than the PM.

Go spend some time learning about all of these reasons before you naively advocate changes which will set our society back to a state last seen before the time of The Christ so many people with your views believe in.

What law have I advocated changing? Nothing I have said is in disagreement with the law. All I have said is that if Alberta does not like gay marriage, the Charter protects their right to invoke the notwithstanding clause.

Do you disagree with this, Flinx?

[Kontiki]

From today's Globe and Mail:

Liberals take six-point lead over Conservatives

The election: Tories lose ground, Harper considers a new tack, and a coveted group of voters speak up

By DREW FAGAN
From Tuesday's Globe and Mail

The Liberal Party has vaulted back into the lead in the federal election, apparently helped along by the Conservatives' campaign troubles, according to a new poll conducted over the weekend.
The Ipsos-Reid poll, conducted for The Globe and Mail and CTV, finds that support for the Liberals has rebounded to 34 per cent of decided voters, while Stephen Harper 's Conservatives have dropped to 28 per cent, a level of support similar to what they enjoyed at the start of the campaign.

The survey of 1,000 randomly selected adults was carried out Friday, Saturday and Sunday, as the Conservatives were buffeted by controversies on health care, child pornography and bilingualism.

"This is a horse race that is going down to the wire," Ipsos-Reid president Darrell Bricker said. "There's been a big move."

The Liberals have risen five percentage points from their position in a similar poll published in The Globe last Saturday, while the Conservatives have declined by four points. NDP support stands steady at 16 per cent.

The change in Liberal and Conservative fortunes appears to be due largely to volatile voters in Ontario, which has 106 of the 308 seats in the next Parliament.

The Liberals are once again well out in front in the province, rebounding to the 42-per-cent support that they had on the eve of the election. The Conservatives have dropped by eight points, equal to the Liberal gain, and now stand at 30 per cent, two points more than they had when the election was called on May 23. The NDP is at 20 per cent in Ontario.

In fact, the latest poll largely mimics the state of play nationwide at the beginning of the campaign. The Bloc Québécois maintains a big lead in Quebec over the Liberals, by a margin now of 30 points. The Conservatives lead the Liberals narrowly on the Prairies and in British Columbia, and are strongly ahead in Alberta.

In Atlantic Canada, however, this latest poll shows the Liberals may have stumbled, as they appear to be now tied with the Conservatives.

The electorate, Mr. Bricker noted, is "fairly settled" except for Ontario. "There's no way to know if this is a blip there or something much more."

Liberal strategists have spoken in recent days of sensing a change of mood among voters.

Paul Martin has spent most of his time since the debates last Monday and Tuesday evenings in battleground Ontario ridings that were solidly Liberal in the past three elections.

The Liberal Leader was in Northern Ontario yesterday, where he again focused on reshaping health care and attacked Mr. Harper as being unwilling to stand up to provinces that might put at risk the public-payer system.

But Conservative strategists insist that Mr. Harper, who took a break from the campaign trail yesterday, will stick to his game plan in the race's final six days.

"There is no running around like the sky is falling," an official said.

While Mr. Martin will continue to emphasize his health-care theme, Mr. Harper likely will focus on telling voters that the Liberals just don't deserve a fourth term, and that handing them one would be like giving them a blank cheque. "That's what we started the campaign with," another official said, "and there will be more of that."

Late last week, the Liberals began running ads bluntly linking Mr. Harper with former prime minister Brian Mulroney and former Ontario premier Mike Harris. Meanwhile, Mr. Martin accused Mr. Harper and Alberta Premier Ralph Klein of being in cahoots on provincial health-care changes to be aired after the June 28 election.

This, and the uncovering of Conservative policy on Air Canada bilingualism, raised new questions about a so-called hidden agenda. Finally, Mr. Harper incurred the Liberals' wrath by refusing to apologize for a personalized attack on Mr. Martin's record in fighting child pornography.

The Liberal surge is particularly apparent in two hard-fought Ontario regions that together have roughly 40 seats: the middle-class suburbs around Toronto and Southwestern Ontario.

The poll finds that the loss of Conservative support has occurred particularly among male voters, who have moved largely to the Liberals but also to the NDP. The NDP, meanwhile, has lost some of its female support, particularly to the Liberals.

The Green Party stands at 6 per cent nationally.

A seat projection based on the poll results puts the Liberals and Conservatives essentially neck and neck at about 110 seats each, with the Bloc dominating Quebec and the NDP winning about 20 seats.

The poll has a 95-per-cent statistical chance of accuracy on any given question within a margin of error of 3.1 percentage points upward or downward.

Federal party popularity

Question: If a federal election were held tomorrow, which of the following parties' candidates would you be most likely to support?

June 18-20*

Liberals: 34%

Conservatives: 28%

NDP: 16%

Bloc: 13%

Green: 6%

*There were 845 decided respondents, giving the poll a 3.1 percentage-point margin of error, 19 times out of twenty.

In Ontario, 330 poll respondents indicated the Liberals have a 12-percentage-point lead over the Conservatives:

Party...Percentage of decided voters

Liberals: 42%

Conservatives: 30%

NDP: 20%

Bloc: -

Green: 6%

Other: 2%

[Tingkai]

Harper's paying the price for those cild porn press releases. He had a chance to do some damage control, but he screwed up big time.

[Kontiki]

I'm still somewhat confidently predicting a Liberal win, if only to form a minority government. Pretty much a "devil you know" kind of thing.

[Flinx]

You have put no thought, effort or understanding into your flippant responses. Thank you for substantiating my point.

Originally posted by Ben Kenobi
All I have said is that if Alberta does not like gay marriage, the Charter protects their right to invoke the notwithstanding clause.
Do you disagree with this, Flinx?

I think it would be very interesting to see a court case where one side argued section 33 and the other argued section 1 i.e. "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Given the tone of sections 1 through 32 I am not as confident as you appear to be as to the outcome. Section 33 would NOT be struck down, that is impossible except through the amending formula of the constitution. I can imagine however an argument being made that use of section 33 should be “demonstrably justified.” How the Supreme Court would rule in such a case is truly unknowable until they do actually do so.

There is no need for a 'public good loophole.'
Rather, one looks at the purposes for the material in the first place. The material is not published with the desire to provide the pedophiles with new material, but rather to shame the pedophiles, and to bring to the light their actions.

I rather doubt they would get off the descriptions of abuse, even if they were pedophiles.

The section of the law that looks at the purposes for the material is what you describe as the public good loophole. Removing this section results in a law that would make a criminal out of a victim trying to express the horrors of what she/he has experienced. We have no way to guarantee such a victim will not be successfully prosecuted without expressly including a section to do so. Name one pedophile who did not go to jail because of the ‘artistic merit’ clause. This law presents a buck-shot collection of crimes to charge pedophiles with and we are discussing fine tuning one of that collection so that it does not stray and hit innocent people.

There are very good reasons why the Notwithstanding clause expires after 5 years. This forces the government that uses the clause to win an election before they can renew the exemption.
If we allowed for no notwithstanding clause, then an important check to the judiciary falls away.
If we allowed for a notwithstanding clause without an expiry date, than the Charter would be too weak, and one parliament could enact legislation that would be difficult for future parliaments to remove.

Do I vote for the party who is going to extend special privileges to the group that I belong to and re-enact the notwithstanding clause to deny rights to a group I do not, or do I vote for the party which plans to do the opposite? Elections are never about a single simple issue and people usually have views which differ with one of more of the policy positions of the party they vote for. Lynch-mob law wrapped up in a legitimate democratic process is still tyranny.

Any legislation can be amended or repealed by a simple majority of the legislative body which passed it. The constitution being a supreme law has its own amending formula but can similarly be changed. Judges to not make laws they interpret how they are applied to cases brought before them. If a majority of politicians feel that a law provides judges pour guidance they can just change the law as is constantly done (almost all legislation is amendments to existing laws).

Yeah, so no one else gets a say in our top judges other than the PM.

What does this have to do with the independence of the courts and the legislature? I will offer a comment on this new issue you have raised however. Without endorsing the current system and in fact supporting a review of potential alternatives in search of an improvement I will point out that there has never been a controversial appointment to the Supreme Court. All of the justices appointed to the Supreme Court have been well respected in all walks of life and have been viewed as being among the best legal minds in the country. A Supreme Court justice has never been accused of, or identified as, having a partisan perspective. The reality of the appointment is that the Chief Justice of the Supreme Court and the Chief Justice of the province from which the judge is being chosen are significantly involved in the process. Increasing the transparency of the appointment process must not compromise or be perceived as compromising the independence of the courts and the legislature. It is this independence which is symbolised by the blindfolded woman impartially balancing the scales of justice. The subjective and ever-changing whimsy of the lynch-mob is, I believe, not what most of us want to go back to.

[notyoueither]

Originally posted by Flinx
You have put no thought, effort or understanding into your flippant responses. Thank you for substantiating my point.

...

Any legislation can be amended or repealed by a simple majority of the legislative body which passed it. The constitution being a supreme law has its own amending formula but can similarly be changed. Judges to not make laws they interpret how they are applied to cases brought before them. If a majority of politicians feel that a law provides judges pour guidance they can just change the law as is constantly done (almost all legislation is amendments to existing laws).

Why are you offering abuse to Ben about thinking when you are ignoring his point?

His point, I think, is that the SCoC is indeed making law by reading things into the Charter that are not there. He might say that they are usurping the role of Parliament, and indeed of the provinces, by amending the Constitution willy-nilly as they see fit.

I may or may not agree with the immediate results of SCoC decisions, but I might also be very concerned about the role of that court, especially in the legislative environment that exists in Canada today.

[notyoueither]

What is wrong with this picture?

http://www.globeandmail.com/servlet/story/RTGAM.20040623.wxlandry23/BNStory/specialDecision2004/

Bloc sweep will hasten referendum: Landry


By RHÉAL SÉGUIN and DANIEL LEBLANC
From Wednesday's Globe and Mail

Quebec and Montreal — An expected Bloc Québécois landslide in next Monday's federal election will set the stage for a referendum on sovereignty in 2009, Parti Québécois Leader Bernard Landry says.

"There will be a referendum in five years," Mr. Landry predicted in anticipation of an unprecedented Bloc Québécois breakthrough.

"With about 60 Bloc members in Ottawa and the more than 40 seats we have in Quebec, sovereigntists will be stronger than ever," Mr. Landry told The Globe and Mail. His party holds 45 of the National Assembly's 125 seats.

Mr. Landry's comments, combined with recent remarks by several Bloc and PQ figures, reflect a growing confidence in the sovereignty movement that a big win next Monday would bring a renewed push for a referendum.

Before holding such a vote, the PQ would have to win the next provincial election, expected in 2007, a result commonly predicted given the unpopularity of Premier Jean Charest and the provincial Liberals, who defeated Mr. Landry last year.

The PQ has already indicated it will interpret a strong Bloc vote as a clear sign of support for sovereignty. In a recent letter to PQ members urging them to contribute to the Bloc campaign, Mr. Landry stressed the importance of the election for the sovereignty movement.

"Well-defended in Ottawa by an experienced team, we will place ourselves in a favourable position for the next Quebec election and a victory in the next referendum," Mr. Landry wrote.

An Ipsos-Reid poll done last weekend showed the Bloc stretching its lead, with 53 per cent of decided voters in Quebec, 30 points ahead of the second-place Liberals.

Ipsos-Reid says its seat projection — based on recent polls — would give the Bloc almost 60 of the province's 75 seats.

Unlike Mr. Landry, the Bloc has been playing down the impact of the federal vote on the sovereignty movement.

Bloc Leader Gilles Duceppe spent yesterday campaigning on the positive role he says his party would play in a minority government. He has said repeatedly that the Bloc would hold the balance of power responsibly, regardless of its ultimate goal of Quebec sovereignty.

In a bid to attract federalists, the separatist leader has even boasted that he could help the Canadian federation work more efficiently.

Yesterday in Montreal, Mr. Duceppe refused to speculate on the timing of a referendum, saying it is a provincial matter and years away. He said the current campaign is about federal issues such as the employment insurance program or the fiscal imbalance between Ottawa and the provinces.

Mr. Duceppe said that the Liberals in Quebec, led by former cabinet minister Stéphane Dion, are using scare tactics by urging Quebeckers not to vote for the Bloc because of its sovereignty agenda.

"Mr. Dion knows as well as I do that we're not deciding on the issue of sovereignty on the 28th [of June]. It's not a referendum. But Quebeckers will be placing their confidence in a sovereigntist party. This they won't be able to deny," he said.

Mr. Duceppe also rejected the analogy that the election is like the first period of a hockey game, with the second period being a PQ victory and the third a referendum.

"Whether it's the first period or the first quarter, you know ..... the question is, is it good news? Obviously, if the Bloc wins, it's good news for the sovereigntist movement.

"It would take an imbecile to say the opposite," he said.

As leader of the sovereignty movement, Mr. Landry has never formally committed his party to holding a referendum if re-elected. And unlike former PQ leader Jacques Parizeau, he has never defined a strategy to promote sovereignty or a clear plan to achieve it.

Moreover, Mr. Landry, having lost the provincial election last year, faces a vote of confidence at the PQ convention in June, 2005. With that in mind, he needs a massive Bloc victory to revive both the sovereignty agenda and his leadership as he fights to maintain his grip on the party.

Mr. Landry hopes to tap into the newfound hope stemming from a Bloc win and prove to his critics that his battle is being fought out of personal conviction rather than personal ambition.

But he also will have to come to grips with the enormous clout his sometimes rival Mr. Duceppe will wield in Ottawa.

Regardless of the result of the coming vote, Mr. Duceppe said, "I won't say it's a victory for sovereignty, because we're not deciding sovereignty."

Still, he acknowledged that a large Bloc victory next week would be positive for the sovereigntist movement.

"It's always better to win than to lose," he said.

In the face of a resurgent sovereigntist movement built upon the bones of Liberal scandal, the target for Liberal energy and attacks in this election is... the Conservatives.

Of course, the country is better off with Quebec having a choice only between the Liberals and the seperatists! Why didn't we all realise that earlier?

btw, what's with the 'k' in Quebecers?

[notyoueither]

Quite the nation builder that Martin guy is. Yep, but which nation?

[Tingkai]

Martin and the Liberals will be

to Landry.

Talk about a sweet gift. There will be thousands of Quebecers who will vote Liberal just to avoid giving the PQ an excuse for another referendum.

[Ben Kenobi]

His point, I think, is that the SCoC is indeed making law by reading things into the Charter that are not there. He might say that they are usurping the role of Parliament, and indeed of the provinces, by amending the Constitution willy-nilly as they see fit.

Precisely my point, NYE.

The only time we see activist judges is if they are on the Liberal side. Heaven help a conservative activist judge. How many cries would we hear from the liberals if we had a conservative who interpreted the Charter so freely as our judiciary has done?

I am particularly concerned by the ability for the PMO to appoint the supreme court justices particularly when they hold a lifetime appointment, and are not accountable to the people. Particularly when a majority have been appointed by Mssr. Chretien.

In the states, they call this court packing, even under the revered Roosevelt. Here, that's just expected party patronage. American system? Sure, I'm all for it!