Thorns in PET's Crowning Achievement - S.1 & S.33
I wish to take issue with the tone & substance of Justice Minister Cotler's comments on the As It Happens show of Jan 10/06.
Mr Cotler is an excellent advocate and apologist. Unfortunately his words last night were not the measured phrases of a Justice Minister, but partisan bafflegab that displayed the "whimsical and capricious" attitude and biases that he and the Liberal leadership bring to this "new" discussion of the notwithstanding clause and that they brought to the re-definitioning of Marriage/Civil Marriages Act issue that lies beneath the recent mention of s.33.
Mr Cotler, in defending the surprise announcement of Paul Martin Jr on Monday, was talking through his hat AND in circles. I'll give him the benefit of the doubt on some small points of confusion, since he WAS speaking spontaneously and without the benefit of a prepared text, but this IS his portfolio.
As the Minister acknowledged, the Charter would never have passed in P.E.Trudeau's original format, i.e. without the notwithstanding clause, because several Premiers (the DrafterS) would not agree to the unchecked (and uncheckable) powers that Mr Trudeau's version gave to the Courts.
The Minister said 'the People' decided through Parliament's adoption of the Charter that the Court would be vested with the right to interpret and apply the Charter AND he also said it's ultimately up to 'the People' through Parliament to enact further legislation or amend legislation as a result of Court decisions.
But Mr Cotler objected to 'a government' being allowed to override the Charter, override the Courts and therefore supported Mr Martin's proposal to delete Federal use of s.33 in order "to protect" the Charter's rights and freedoms from changes based on a future "whim or caprice".
Well, how else but by popular election is "a government" formed and how else but by legally amending, for example, the Civil Marriages Act or legally enacting limits-to-abortion legislation would "a government" change what Mr Cotler doesn't want changed by the Notwithstanding clause?
Robert Ede
Backgrounder
The Charter of Rights did NOT bring Canadians any new rights - we enjoyed them already at common law - it simply put them "in writing" in one place (codified them) and put them in a framework.
The 'seamless whole' that is the Charter's framework included two ne'er-before-needed limits on those same 'rights and freedoms' that it enumerated.
First in Section 1, it made all the rights Conditional - permitting a government to deny or limit the rights and freedoms "guarantee(d)" by this Code, if they obtained Court approval to do so.
NB this Court approval will always be granted (or denied) AFTER the government has already taken the "objectionable" action/decision AND AFTER a time lag due to legal process.
Second in Section 33, the "guarantee(d) Rights and Freedoms" were made further conditional upon the Parliament or Provincial Assemblies NOT nullifying a Court-decided application or interpretation of the Charter, that the elected body did not agree with.
Pierre Trudeau was not THE drafter of the Charter as Mr Cotler tried to sneak into the popular consciousness. Granted, he indeed did proposed a "draft" concept package for an amending formula and a Charter, that was modified and agreed to by a First Ministers Conference -THE DrafterS- and that was subsequently ratified by 9 of 10 provinces, he indeed provided the political impetus to re-start a project that had failed many times, but now, 20+ years on, Canadians would agree that this "crowning" achievement did not come without many still-prickly thorns.
The Minister also demonstrated his willingness to ignore the provisions of the 1867 BNA Act/Constitution Act 'the People' decide nothing except who they will vote into the Assembly.
The Governor General/ Lt Governor decides everything by Assenting, Withholding Assent in the Queen's name, or by Reserving a bill for signification of the Monarch within 2yrs.
The people did not decide on the Charter or its format, Trudeau foisted (after a great deal of modification) 'his legacy' on the Courts, the assemblies and the governments-of-the-day.
A friend thought you'd like this streaming media. Play it now with your RealPlayer:
http://switchboard.real.com/player/email.html?PV=6.0.12&&title=As%20It%20Happens%20from%20CBC%20Radio%20As%20It%20Happens%20Part%201%20for%202006%2D01%2D10&link=http%3A%2F%2Fwww.cbc.ca%2Fasithappens%2Fmedia%2Fdailyshow%2F2006%2D01%2D10%2Daih1.ram
Note: This content may require the latest RealPlayer, which is not available on Windows 95, Mac OS9 or Linux systems.
Mr Cotler is an excellent advocate and apologist. Unfortunately his words last night were not the measured phrases of a Justice Minister, but partisan bafflegab that displayed the "whimsical and capricious" attitude and biases that he and the Liberal leadership bring to this "new" discussion of the notwithstanding clause and that they brought to the re-definitioning of Marriage/Civil Marriages Act issue that lies beneath the recent mention of s.33.
Mr Cotler, in defending the surprise announcement of Paul Martin Jr on Monday, was talking through his hat AND in circles. I'll give him the benefit of the doubt on some small points of confusion, since he WAS speaking spontaneously and without the benefit of a prepared text, but this IS his portfolio.
As the Minister acknowledged, the Charter would never have passed in P.E.Trudeau's original format, i.e. without the notwithstanding clause, because several Premiers (the DrafterS) would not agree to the unchecked (and uncheckable) powers that Mr Trudeau's version gave to the Courts.
The Minister said 'the People' decided through Parliament's adoption of the Charter that the Court would be vested with the right to interpret and apply the Charter AND he also said it's ultimately up to 'the People' through Parliament to enact further legislation or amend legislation as a result of Court decisions.
But Mr Cotler objected to 'a government' being allowed to override the Charter, override the Courts and therefore supported Mr Martin's proposal to delete Federal use of s.33 in order "to protect" the Charter's rights and freedoms from changes based on a future "whim or caprice".
Well, how else but by popular election is "a government" formed and how else but by legally amending, for example, the Civil Marriages Act or legally enacting limits-to-abortion legislation would "a government" change what Mr Cotler doesn't want changed by the Notwithstanding clause?
Robert Ede
Backgrounder
The Charter of Rights did NOT bring Canadians any new rights - we enjoyed them already at common law - it simply put them "in writing" in one place (codified them) and put them in a framework.
The 'seamless whole' that is the Charter's framework included two ne'er-before-needed limits on those same 'rights and freedoms' that it enumerated.
First in Section 1, it made all the rights Conditional - permitting a government to deny or limit the rights and freedoms "guarantee(d)" by this Code, if they obtained Court approval to do so.
NB this Court approval will always be granted (or denied) AFTER the government has already taken the "objectionable" action/decision AND AFTER a time lag due to legal process.
Second in Section 33, the "guarantee(d) Rights and Freedoms" were made further conditional upon the Parliament or Provincial Assemblies NOT nullifying a Court-decided application or interpretation of the Charter, that the elected body did not agree with.
Pierre Trudeau was not THE drafter of the Charter as Mr Cotler tried to sneak into the popular consciousness. Granted, he indeed did proposed a "draft" concept package for an amending formula and a Charter, that was modified and agreed to by a First Ministers Conference -THE DrafterS- and that was subsequently ratified by 9 of 10 provinces, he indeed provided the political impetus to re-start a project that had failed many times, but now, 20+ years on, Canadians would agree that this "crowning" achievement did not come without many still-prickly thorns.
The Minister also demonstrated his willingness to ignore the provisions of the 1867 BNA Act/Constitution Act 'the People' decide nothing except who they will vote into the Assembly.
The Governor General/ Lt Governor decides everything by Assenting, Withholding Assent in the Queen's name, or by Reserving a bill for signification of the Monarch within 2yrs.
The people did not decide on the Charter or its format, Trudeau foisted (after a great deal of modification) 'his legacy' on the Courts, the assemblies and the governments-of-the-day.
A friend thought you'd like this streaming media. Play it now with your RealPlayer:
http://switchboard.real.com/player/email.html?PV=6.0.12&&title=As%20It%20Happens%20from%20CBC%20Radio%20As%20It%20Happens%20Part%201%20for%202006%2D01%2D10&link=http%3A%2F%2Fwww.cbc.ca%2Fasithappens%2Fmedia%2Fdailyshow%2F2006%2D01%2D10%2Daih1.ram
Note: This content may require the latest RealPlayer, which is not available on Windows 95, Mac OS9 or Linux systems.
posted by Walk a Kb or Two in my cassins | 4:26 pm
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Nice work, Thanks
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