Post
by semiconscious » 14 Jan 2009 08:46
This is a very interesting topic. Although I am Canadian (which is probably what cause me to open this thread in the first place), I doubt that my opinion on this has much to do with my perspective as a Canadian.
In the first, my knowledge of the charter of rights and freedoms, and the Canadian juducial and parliamentary system as a whole is a little shaky. I did just sit down and read the wikipedia entry on the charter, and a little bit of the charter itself, where I was interested in the specifics of the wording (Sections 1 and 33, for instance).
In the second, my general faith in legal documents is not 100 percent, and while I certainly support the idea of having a charter, I have never believed that such a document would, in any way, be able to universally apply without a little bit of tweaking in specific circumstances. The important second part of this is that often, the situations in which issues arise between the charter and the law are moot points, and you'll find large groups of people supporting both sides with an equally strong force of opinion.
As far as the two clauses go, as I understand it, section 33 is the notwithstanding clause, and this is what allows parliaments to override specific portions of the charter, and section one is what judges will use to determine whether a specific portion of the charter should be overridden in any kind of situation. This seems to mean, as your reporter noted, that even when parliaments invoke a notwithstanding clause, it is often left up to a judge to determine whether this use was justified.
As much as this does kind of override democratic process in favour of judicial process, historically, it seems, mostly parliaments have used (or attempted to use) section 33 as a way to limit parliamentary responsibility, limit personal freedoms, and suppress labour actions. For instance, Quebec used it to continue to enforce the (in my opinion unjust) law that all commercial signage in Quebec had to be in French (despite the sizeable anglophone population). Alberta, also, more recently, used it to define marriage in a way that excluded the possibility of same sex marriage, as well as attempting to use it to limit lawsuits for forced sterilisations that the government had performed in the past (although it failed). I can't yet find a use of section 33 that I support, although I'll admit I didn't look that hard.
As far as the use of section one is concerned, despite there certainly being a little room for the personal opinions of the presiding judge to play a factor in the deliberation, the wording and definitions involved allow for much less freedom to go against the charter than does section 33. Again, historically, this clause has been used to limit hate speech, a limitation on universal freedoms which I do support, and obscenity, which I am a little more hesitant to support, but still have less issues with than the removal of a possibility for same sex marriage.
Ms. Albrechtsen discussed the giving of power to these 'Aristocratic' people of the law, but I can't find any situation in which the judicial branch has really overstepped what I consider its boundaries in using section one to override the charter. So, while in theory, she may have a point, historically, it doesn't hold much water. Our judicial process seems to be, for the most part, relatively transparent, and any abuse of section one wouldn't go unnoticed for long.
As far as the specific example of mormon polygamy is concerned, I am relatively divided on the issue. While I'm not that big on polygamy (especially to this degree!), nor am I in any way religious, I do object to any type of limitation on religious freedoms, especially in a situation in which no one is being outright hurt. What this does mean is that I believe a much more in-depth study of the living conditions within these polygamous mormon households should be undertaken, and any type of abuses which go against the other fundamental freedoms in the charter should be dealt with under the law. While the charter should prevent this man for being charged merely for being a polygamist, since the parliament has deemed polygamy illegal, I believe a search of the premises would not go against section 8 of the charter, which discusses unreasonable search and seizure.
The final thought is that regardless of whether a judge makes the final decision, or parliament, there are going to be a sizeable handful of people who don't get their way. Basically, it's either going to be a case of a tyranny of the judiciary, or a tyranny of the majority. I could care less which gets the final say.
Sam Neale
) but never heard from somebody who actually lives there.