Oh well then, since he only wants to amend it with respect to federal powers he wont need to follow the amending formula.
Oh wait he does.
He then has to get a minority government to pass the legislation, convince 50% of the population residing in 2/3 of the provinces to make their respective legislatures approve of the motion and voila! Piece of political cake.
The provincial legislatures certainly won’t be objecting to a narrowing of federal powers. Passing it in Parliament is obviously more difficult, but you can make the same objection to any plank in any parties’ platform.
Well of course, besides what Quebec government wouldn’t want to be linked to a Liberal constitutional ammendment? Especially one that doesn’t address Quebec in the federation.
Federal legislation that does not require provincial co-operation, has an actual chance of passing. Grand policy proposals that have as much chance of happening as Jean Chretien and Conrad Black slow dancing are useless.
I wouldn’t have any problem with the clause being tossed. It is there to permit the elected majority to take away rights and freedoms when it is not reasonable to do so. In other words, it opens the door to a tyrany of the majority.
In practice, I have greater faith in the Supreme Court of Canada to make well thought out decisions concerning our rights and freedoms than our elected representatitves.
My only concern is that should the judiciary become politicized to the degree that the judges of the Supreme Court of Canada start basing their decisions on political positions, then their having the final say might be problematic, however, even then the problem would be minimized, for it is very easy for Parliament to give persons rights regardless of what the courts might say.
In short, taking away the notwithstanding clause would make it more difficult for the elected majority to take away rights, but it would not make it more difficult to grant rights to all.
For those not quickly familiar with the Canadian Constitution, here are the Sections that the Notwithstanding Clause must be invoked to supersede:
I presume that Martin’s promise says that Parliament would no longer have the power to supersede any of these guarantees, although the provincial legislatures still would as regards their province.
The fact the Martin was very specific that only Federal invocation of the NWC would be stopped got me wondering: when did the Feds ever invoke the NWC? Offhand, I can’t think of a single case, but I admit I’m not very observant.
Of course, I’m somewhat biased by having my provincial government overuse the damn thing every chance they get.
The feds have never invoked it.
Seriously, where does this unquestioning faith in our Suprteme court come from?
In my OP I have staed that so far they have been reasonable but I still would never consider giving them unchecked power.
Parliament has not used this to hurt us yet, so why can’t they be given the same benifit of the doubt?
As stated the Notwithstanding clause has **never ** been used by the Feds and still they can’t be trusted. Should they not be armed incase some stupid or oddball ruling comes down from the judiciary?
Weren’t the Conservatives threatening to use it, if elected, to set aside the right of same-sex couples to get married?
No. As I recall, the promise was to use it to ensure churches could not be forced to perform same sex marriages - in effect, to use it if the Supreme Court picked one right to trump another.
Whether this was in fact ever even vaguely likely to happen, of course, is another matter.
You do know that it is an elected representative (only one, btw) who determines who is on the Supreme Court, right? How do you know that the choices he makes in appointing a member to the court are well thought out decisions?
It certainly bothers me that the person I elect to represent me has no say in who these people are and I like the fact that they have a tool to stop potentially goofy decisions on the law. Just because they haven’t needed it before doesn’t mean they won’t in the future.
Who said anything about unquestioning faith? Having greater faith in one over the other does not mean having unquestioned faith. Think lesser of two evils, or better of two goods, not unquestioned faith in either.
As to why I have greater faith in the SCC than the politicians, it is because the judiciary is not as reactionary. It does not have to pander for votes.
I am concerned that politicians have a tendency to either avoid making laws that protect somewhat unpopular minorities, or overreact with their legislation when faced by a crisis. By upholding Charter rights and freedoms, the courts help moderate this political behaviour.
Yes, I am concerned that the courts must find a balance between judicial activism and judicial restraint, and yes, I realize that these should not be confused with liberalism and conservatism, for at any given time, the court might change political direction without changing its degree of activism or restraint.
When I look at Charter decisions made by the Supreme Court of Canada, I am impressed by the depth of thought put into them. I do not agree with some of the decisions, and I do not agree with the general directions maintained by some of the judges, but that being said, I have confidence that they will make very carefully reasoned decisions that attempt to uphold the Charter.
I cannot say the politicians as a whole put the same degree of thought into their legislation. I am concerned that some politicians do not have the intellectual depth to thoroughly think through the effect of their legislation, some politicians are more concerned about political positioning than the effect of their legislation, some politicians are more concerned about capturing the reactionary vote in the polls than the effect of their legislation, and some politicians are just plain bigots who are more than happy to unreasonably withold or take away Charter rights and freedoms from certain classes.
What it comes down to is that politicians are good at getting elected, whereas Supreme Court of Canada judges are good at making reasoned decisions.
The process is not nearly as simple as you suggest.
You might wish to read IMPROVING THE SUPREME COURT OF CANADA APPOINTMENTS PROCESS: REPORT OF THE HOUSE OF COMMONS STANDING COMMITTEE ON JUSTICE, HUMAN RIGHTS, PUBLIC SAFETY AND EMERGENCY PREPAREDNESS, MAY 2004
I would like a little more transparancy, but not at the expense of politicizing the appointment process, for to do so would result in politicized appointments.
But the Civil Marriage Act specifically states that churches may choose whom they marry:
Sunspace, the issue was the some people were concerned that the Supreme Court would end up finding that to be unconstitutional, and order churches to marry everyone.
Actually, no. They were promising to reopen the debate, and most would vote against same-sex marriage; in other words, they want to take it away. But they say they can do this without using the Notwithstanding Clause, even though nine provincial courts have already said that SSM is required by the Charter.
Most constitutional scholars say the Tories are nuts and there’s no way to do this without using the NC.
My guess? They’d try it; if they could get it passed (dubious anyway), a Supreme Court case would be hastily put together; it would be clarified that yes, those provincial superior courts really meant it when they said it was Charter protected; and everything would be thrown into a state of severe muddlement while it was all figured out.
The Conservatives weren’t threatening anything. Stephen Harper’s position on this was that would use the notwithstanding clause to overrule the supreme court’s decision on gay marriage and then put it to a free vote in the house of commons.
In other words, let the elected officials decide on the law, not the appointed Liberal cronies.
It would not have made a difference in the outcome. Most Canadians, myself included, have no issue with gay marriage. I mean, what possible difference could it possibly make to me as a heterosexual married male? But the point is, that elected members are the ones who should be making laws, and the courts should be interpreting them; not the other way around.
Why the hell do we elect members of parliament if not to govern and change laws to reflect society?
So long as gays can marry without having to be married by church officials, forcing churces to marry gays would violate the Charter freedom of religion.
Had the government tried to ram gay marriage down churches’ throats, I expect that the courts would have stopped it.
On a related matter, it was the gradual progress of gay rights through the courts that eventually resulted in gay marriage. Yes, there was a vote in Parliament, but this only came after decisions of courts of appeal in more than one province in favour of gay marriage as being protected under the Charter that drove the issue.
In short, the courts protected the Charter rights of gays without impinging on religious rights. The government was complacent in letting gays go without fundamental human rights as protected by the Charter until the matter was pushed through the courts.
As far as the conservative leader Harper goes, he has set out that if his party comes into power, he will re-open the issue of gay marriage by way of a free vote in Parliament, but he will not invoke the notwithstanding clause.
That means that if his party wins the election, and is successful in banning gay marriage, then it would be up to the courts to continue to uphold the Charter right to equality.
I think that this is an excellent example of how the judiciary protects the Charter rights and freedoms of minorities against bigoted politicians.
Why the hell do we have a Charter and Rights and Freedoms if not to protect peoples’ rights?
What I’m afraid of is that if this were to happen, Harper would say that the courts have overruled Parliament’s authority, and while he really didn’t want to do it, he’ll have to invoke the notwithstanding clause. I’m well aware that he’s promised not to but there’s just no way that the Supreme Court is going to rule any other way, so I don’t understand why he’d even bother with a law he knows is going to be ruled to be unconstitutional. Maybe he’s just hoping to score some political points by tilting at windmills, but I don’t think that many people will be impressed by him wasting everybody’s time.
Does that mean that in Canada the civil, legal institution and aspects of marriage aren’t distinct from the religous ones as they are in the US? You can’t be married in law without being married in a church and vice versa? Or are “some people” simply mistaken about that (as they are in the US)?