Someone needs to take the microphone away from the Cons

[Brad Sallows]

Oddly, the Charter begins with this:

"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."

IOW, the Charter guarantees its enumerated rights except when lawyers - usually working for the government of the day, motivated by its own self-interest in winning re-election - can successfully present a partial truth (their "case") while attempting to obfuscate any competing truths.  S1 is basically Weasel Clause #1.

And some of you seem to miss the irony in S15, which essentially says (I paraphrase using Mr Orwell's well-phrased observations):
1) All animals are equal...
2) Except when some animals are to be made more equal than others.

Equality that comes and goes at the whim of political and social aestheticism is not really equality.  S15(2) is Weasel Clause #2.

Essentially the Charter says we have rights - which in some cases require no enumeration at all - as long as it is not inconvenient for us to have them.

A bold and useful Charter would say we have some rights which are beyond the purview of any government to "grant" or infringe (ie. our natural rights) and some (ie. our civil rights) which, as long as they are enjoyed by anyone, are enjoyed by everyone equally without reservation.

The plain truth of our Charter as it stands is that the politicians of the time couldn't stand the thought of some lines they should never be allowed to cross.

 

[stegner]

Section 15 (1) is a weasel clause also.  It has been used to great effect by the Gay/Lesbian community in the courts but has been nearly outright mocked by judges when lawyers attempt to use it to justify better treatment for homeless people. 

My tangent:

The Charter, itself, represents a major problem as it allows for states of exception.  Walter S. Tarnopolsky and Gerald-A. Beaudoin argue that any Act or Statute that curtails civil liberties contrary to the Charter will have to be judged by the courts whether they, “come within the qualifying clause of s.1 namely, “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and  democratic society.” Of course, this issue could be finessed and the emergency measure exempted from ss.2 and 7-15 of the Charter, by explicit use of the override power of s. 33.” The Charter rights potentially precluded by the use of Section 33 include fundamental freedoms, such as freedom of conscience, religion, thought, belief, opinion, expression, freedom of the press, peaceful assembly, association, the right to life, liberty and the security of person.  Arbitrary search, seizures detainment and imprisonment and the right not to be subjected to cruel and unusual treatment or punishment, which in normal circumstances are protected against would with the invoking of Section 33 allowed.  So would the rights when detained to knowledge of the charges, access to counsel and habeas corpus. This depressing list is by no means exhaustive.  Additionally, Claude Bélanger argues," article one of the Charter allows that rights and freedoms be subjected to such limits as are established by law as long as these limits can be demonstrably justified in a free and democratic society. Article 4 (2) further permits the House of Commons, or a provincial legislature, to be extended beyond the limit of five years ‘in time of real or apprehended war, invasion or insurrection’. It is clear, under these articles, that the Charter may not provide much recourse against abuse if a proclamation of war was again to be issued."