Canada Kicks Ass
In Honour Of The Charter's 40th Anniversary

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JaredMilne @ Mon Apr 18, 2022 3:57 pm

On April 17, 1982, the Charter of Rights and Freedoms was officially enshrined in the Canadian Constitution. To commemorate the occasion, here are a few observations I had about the Charter and its impact on Canada:

* It’s provided important protections for many different groups and causes, ranging from women’s bodily autonomy to official language minorities to people with disabilities. In that respect, the Charter has been a tremendous step forward, and one of Pierre Trudeau’s greatest contributions to Canada.

* The concept of a written bill of rights has its roots as much in conservative Western Canada as it does in any Liberal part of the East. John Diefenbaker got the ball rolling with his Bill of Rights in 1960, and Alberta’s Conservative Peter Lougheed was one of the provincial Premiers who signed off on the final version of the Charter. Western Canada’s fingerprints are all over the 1982 deal, as much as Trudeau’s.

* People often say ‘compromise’ as if it’s a dirty word, but the Charter is actually an excellent example of compromise done right. Many of the provincial Premiers were leery of allowing unelected, unaccountable judges to overrule the decisions of elected officials, so the notwithstanding clause serves as a compromise. It allows elected officials to have the absolute last word on many issues (thus preserving the element of Parliamentary supremacy our democracy is built on) but the popularity of the Charter has created a convention whereby elected officials (until very recently) only used the clause if there was a popular demand for it.

(A ‘constitutional convention’, for the record, is an unwritten ‘rule’ or expectation about how politics are done in practice. For instance, a constitutional convention is that the federal Cabinet should have representation from different regions, ethnicities, genders and official language groups. It’s not specifically required under the constitutional text, but it impacts people’s perceptions of the Cabinet’s actions.)

Ralph Klein refused to use the clause against the Court’s ordering gay rights be written into Alberta’s provincial human rights codes, or to renew the clause’s upholding a heterosexual definition of marriage, and Albertans did not punish him for it. Jean Chretien, Trudeau’s lieutenant in 1982, suggested that the clause could be used to overturn rulings calling child pornography or hate speech “free speech.”

* More than that, the Charter is balanced with considerations about how far rights can actually work in practice, with Section 1 stating that rights can only be protected to the extent that is reasonably justifiable in a free, democratic society. That’s why in my view bans on protests at hospitals, schools and especially the private homes of public officials would all be justified. There’s no justification for threatening healthcare workers, teachers, schoolkids and especially people in their own personal homes.

   



Thanos @ Mon Apr 18, 2022 4:14 pm

Negative, and a massive one that pretty much negates the positives. Whoever is in power in the Quebec legislature holds a chicken-switch over the entire country; nothing that the rest of the country wants, even if it's supported by the federal government, can be accomplished if Quebec chooses to oppose it. We're effectively in a position where the Quebec government is in a dominant & supremacist position over all of Canada.

The Charter was supposed to protect minority rights. That it gets used instead to install a perpetual and permanent minority veto over the entire nation is a catastrophic failure. That at least four of the provincial premiers who signed the Charter said in their later years that they would have rejected it altogether if they'd known how much the Quebec legislature would basically become a second federal government speaks volumes on how much the Charter has damaged the basic ability of the country to function, and how much it has brought the confederal system into disrepute.

   



Scape @ Mon Apr 18, 2022 4:39 pm

Take it up with the Meech Lake Accord.

   



Thanos @ Mon Apr 18, 2022 4:46 pm

It's all part and parcel of a real mess, courtesy of a generation of politicians and activist judges who certainly didn't care too much at all about the damage their experiment would cause for future Canadians. This is why top-down revolutions dictated by the upper elite pushing an ideology-of-the-moment usually turn out to be disastrous for the common people.

   



JaredMilne @ Mon Apr 18, 2022 5:21 pm

Thanos Thanos:
Negative, and a massive one that pretty much negates the positives. Whoever is in power in the Quebec legislature holds a chicken-switch over the entire country; nothing that the rest of the country wants, even if it's supported by the federal government, can be accomplished if Quebec chooses to oppose it. We're effectively in a position where the Quebec government is in a dominant & supremacist position over all of Canada.

The Charter was supposed to protect minority rights. That it gets used instead to install a perpetual and permanent minority veto over the entire nation is a catastrophic failure. That at least four of the provincial premiers who signed the Charter said in their later years that they would have rejected it altogether if they'd known how much the Quebec legislature would basically become a second federal government speaks volumes on how much the Charter has damaged the basic ability of the country to function, and how much it has brought the confederal system into disrepute.


And yet I've seen the opposite claim by Quebec thinkers, who say that the 1982 patriation cost the province the veto they thought it had over constitutional changes. Not to mention that Quebec never signed the 1982 agreement, and a lot of Quebecers are still unhappy about the way it was done, hating Pierre Trudeau for what they saw as his broken promises during the 1980 referendum.

Exactly what "minority veto" and "chicken switch" are you talking about? The notwithstanding clause? It's available to any province that wants to use it, but they generally don't because they're afraid of the public backlash. The amending formula? Every province effectively has a veto over certain possible changes that require unanimous support by Ottawa and all the provinces, while other changes require seven provinces that contain 50% of the national population. If Quebec's share of the national population declines, it becomes increasingly likely that you could make a change with that part of the amending formula even with Quebec's thumbs-down. And the part of the amending formula that only affects one province was used by both Quebec and Newfoundland & Labrador to abolish archiac religious education requirements without a peep from the other provinces.

Can you tell me where you read about these provincial Premiers regretting signing the Charter? I'd really like to see it.

   



Thanos @ Mon Apr 18, 2022 6:02 pm

It was a long time ago. But Peter Lougheed and Allan Blakeney said they had some serious misgivings before they signed the Charter. And that they weren't impressed afterwards when the courts began creating law on their own instead of simply halting government policy. Their consensus, including the other two premiers that I can't remember, said if they had to do it again they would have been much harsher during the negotiations, as harsh as Rene Levesque was, and that they would have refused to sign it if their demands weren't met.

Look at it this way as an example of the sheer raw power Quebec has over this country. If a mayor of Montreal can throw a tantrum over a pipeline from the West planned to go through Quebec, then get backed up by the Quebec legislature & the Bloc Quebecois, and then again backed up by the then in-opposition federal Liberals, and cause trouble to the point that the entire project becomes untenable then it's clear that the Quebec political elite has a knife to the throat of the rest of the country. Because that's what happened with Energy East. Even if the Harper Tories had won the 2015 election with another majority there wouldn't be a single metre of pipe in the ground for that project because Quebec simply wouldn't allow it. And the Conservatives wouldn't have forced it either because by the 2019 election it would have cost them every seat they had in Quebec. Causing that kind of disruption to other provinces is something that can only happen when the belligerent party, in this case the Quebec politicians, are fully confident and assured that they have the full power of the Charter on their side & that the full judiciary would basically enforce their decisions above any other considerations in the rest of the country.

When BC tried the same thing with the Trans Mountain line they lost all their court appeals because the courts said they had no constitutional rights to either block the project or to impose punitive tariffs on it. But the unspoken reason they really lost is because they're not Quebec and therefore have no special status that allows them to effectively supercede the constitution itself. If anyone says that Quebec would have lost over Energy East in the same way I'd like to know what they're smoking because saying something like that would be in clear defiance of actual post-Charter history where Quebec wins always.

   



herbie @ Tue Apr 19, 2022 10:45 am

The Charter of Rights, not the Constitution.
Quebec doesn't have jack shit power over the Charter of Rights, no province does.
One could try invoking the 'notwithstanding' clause over a specific part of the Charter itself but they sure as fuck wouldn't get re-elected.

   



herbie @ Tue Apr 19, 2022 10:48 am

And the best part of the Charter is that in Canada, the Supreme Court isn't determined by the Judge's politics. Unlike in some 3rd world nations.

   



Zipperfish @ Tue Apr 19, 2022 2:13 pm

I was in cop school not long after this. No I'm not a cop, and won't get into great detail as to why I was there. Anyways, the new cadets were being taught about the Charter and the instructors--all old skool--were bemoaning that they couldn't just break down the door, shitkick everyone inside, and search the place anymore. So yay for the Charter.

Individuals don't get much in society, so whatever we do get we gotta hang on to. As for the notwithstanding clause--I kind of support it. In the US they go against the Constitution all the time and go through these incredible legal gymnastics to justify it, even though it's all bullshit. Here in Canada you just hit the big red Notwithstanding button and yell "Fuck the Charter" and you're through. At least it's obvious.

As for Quebec, they're gonna do what they're gonna do. The inevitable upshot is the west is just going to say "fuck it" eventually. It's obscene the money they get sent in equalization every year--and that's just one thing. I say the next time Alberta's gotta send $50B to Quebec they just hit the Notwithstanding button and yell "Fuck you."

   



Scape @ Tue Apr 19, 2022 4:18 pm

Zipperfish Zipperfish:
As for Quebec, they're gonna do what they're gonna do. The inevitable upshot is the west is just going to say "fuck it" eventually. It's obscene the money they get sent in equalization every year--and that's just one thing. I say the next time Alberta's gotta send $50B to Quebec they just hit the Notwithstanding button and yell "Fuck you."



If the cons ran on that, and just that, they might be surprised at the support.

   



herbie @ Tue Apr 19, 2022 5:01 pm

Alberta didn't send dick shit to Quebec. YOU did. So did I in BC, so did my sister in Nova Scotia. It's money from federal taxes.
The province has no fucking claim on it, it just likes to convince the voters non-stop that it does.
Getting tired of hearing the same gripe.If they got rid of equalization forever, your tax wouldn't go down a nickel.

   



Thanos @ Tue Apr 19, 2022 5:12 pm

I never said any of that. In fact I deliberately didn't say it because I didn't want to set off the shitstorm. You guys did that on your own, not me.

   



JaredMilne @ Tue Apr 19, 2022 5:34 pm

Thanos Thanos:
It was a long time ago. But Peter Lougheed and Allan Blakeney said they had some serious misgivings before they signed the Charter. And that they weren't impressed afterwards when the courts began creating law on their own instead of simply halting government policy. Their consensus, including the other two premiers that I can't remember, said if they had to do it again they would have been much harsher during the negotiations, as harsh as Rene Levesque was, and that they would have refused to sign it if their demands weren't met.

Look at it this way as an example of the sheer raw power Quebec has over this country. If a mayor of Montreal can throw a tantrum over a pipeline from the West planned to go through Quebec, then get backed up by the Quebec legislature & the Bloc Quebecois, and then again backed up by the then in-opposition federal Liberals, and cause trouble to the point that the entire project becomes untenable then it's clear that the Quebec political elite has a knife to the throat of the rest of the country. Because that's what happened with Energy East. Even if the Harper Tories had won the 2015 election with another majority there wouldn't be a single metre of pipe in the ground for that project because Quebec simply wouldn't allow it. And the Conservatives wouldn't have forced it either because by the 2019 election it would have cost them every seat they had in Quebec. Causing that kind of disruption to other provinces is something that can only happen when the belligerent party, in this case the Quebec politicians, are fully confident and assured that they have the full power of the Charter on their side & that the full judiciary would basically enforce their decisions above any other considerations in the rest of the country.

When BC tried the same thing with the Trans Mountain line they lost all their court appeals because the courts said they had no constitutional rights to either block the project or to impose punitive tariffs on it. But the unspoken reason they really lost is because they're not Quebec and therefore have no special status that allows them to effectively supercede the constitution itself. If anyone says that Quebec would have lost over Energy East in the same way I'd like to know what they're smoking because saying something like that would be in clear defiance of actual post-Charter history where Quebec wins always.


That sounds less like anything to do with the Constitution and more like a federal government concerned about how a province that has a big seat count in Parliament, very few of which are "safe" at election time, might react. And public opinion among the likes of Denis Coderre was starting to shift, while then-Quebec City Mayor Regis Lebeaume openly supported it.

There were also discussions at the time that it was the free market, rather than public protest, that killed Energy East. Not to mention that Irving Oil would have kept buying from the Saudis even if Energy East went ahead. And over five years, we went from being one of Quebec's smallest oil suppliers to its biggest.

   



JaredMilne @ Tue Apr 19, 2022 5:38 pm

Zipperfish Zipperfish:
As for Quebec, they're gonna do what they're gonna do. The inevitable upshot is the west is just going to say "fuck it" eventually. It's obscene the money they get sent in equalization every year--and that's just one thing. I say the next time Alberta's gotta send $50B to Quebec they just hit the Notwithstanding button and yell "Fuck you."


The notwithstanding clause doesn't apply to equalization. That said, Harper pissed away a golden opportunity to fix the equalization formula during his majority-and the problems with equalization is something I agree with Thanos and a lot of other Albertans on.

Any of the competitors for the federal Conservative leadership could probably win it instantly if they make overhauling equalization a key element of the CPC's platform going forward.

   



Thanos @ Tue Apr 19, 2022 5:57 pm

Nah, it wouldn't help them at all. It's only an issue in Alberta and maybe Saskatchewan. BC and Ontario don't seem to care about it in the slightest. And they'd lose their Quebec seats for the rest of forever with such a policy. Plus Stephen Harper managed to permanently piss off the Maritimes with his ignorant "culture of dependence" commentary, so bringing up the subject on the East Coast just makes the already ultra-safe Liberal and NDP seats out there get cemented even more solidly in place.

It's just another prairie populist lightning rod, which automatically means it's political death in the rest of Canada. Conservatives never seem to learn that what got born in Alberta in the 1980's and 90's is at least ten to fifteen years past due in needing to be abandoned and forgotten altogether. It's not that the ROC doesn't pay attention to Western issues or ideas. They do, but they typically reject them out of hand because they see them as not in their own best interest to ever implement.

   



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