Poli Sci and the Charter

Tempus · Post by **Tempus** » Wed Mar 24, 2004 4:40 pm

for those of you with a little interest in poltical discussion i thought i would post this. In my poli sci class there are 20 different assignments given to the various people in the class and mine was to discuss whether the Charter is ant-democratic. Anyways i came across this guy Robert Martin and i thought i would post a little excert from his essay "the Canadian Charter of Rights and Freedoms is Antidemocratic and Un-Canadian"

Prior to 1982 Canadian constitutions did not contain such limitations (restrictions on lawmaking). Our central document, the British North America Act of 1867, divided the lawmaking authority between Parliment and provincial legislatures and, thereby, limited that authority.... for example the authority to make laws about education rested with the provinces. Ottawa could not make laws about education, and if it attempted to do so, the attempt could be struck down... the courts also had no authority to tell the provinces how to exercise their authority over education, to tell them what kind of laws they should make about education.

This is what changed in 1982. The federal division of powers remained, but for the first time substantive limitations were placed on lawmaking autority. the judges were given the power to strike down laws that, in their opinion, were inconsistent with the Charter....

The defining feature of representative democract in Canada has been that it is up to the elected members of our legislature to resolve issues.... subject to the approvalof the people which is expressed during elections

this has changed since the adoption of the charter. Judges can now over turn deliberate policy decisions made by the elected representatives of the people where those decisions do not accord with the way the judges think. this is undemocratic and "counter-majoritarian"

We seem to have a hard time grasping the simple truth about the antidemocratic nature of the judicial system. The explaination for this is that we have forgotten that liberalism and democracy are not the same thing

Liberalism: is about individual rights... to do what you want without interference from the government

Democracy: is about the collective interests of all peoples... about MAJORITY RULE about power to the people as a whole

The charter has swung us away from democracy and into a liberal society
Thus, in an institutional sense, has had an antidemocratic effect while at the same time reinforced ideologies that are purely anti-democractic. Take for example the notion of "rights"

The inclination of the individual to characterize their preferences as "rights" ... has done much to promote an individualistic and therefore antisocial ways of thinking. many people view their rights as a quiver of jurisprudential arrows, weapons to be used in waging the ceaseless war of each against all....

The charter has promoted our Americanization in other ways other then persuading us that we dont have a history... it would be foolishes to say that the charter is the only cause of this however the decade following the induction of the charter has seen a drastic increase of social allienation, crime, marital breakdown incivility hostility and so on.

There was a time when one had a pupable sense, on crossing the border, of entering a different society. This is no longer true.

Our collective sense of ourselves, and our idea of responsibility for each other and the society we share has been seriously weakened. Like americans we now believe there must be a legal remedy for every social ill. Like americans we put me first.

The charter has, to judfe by media commentators, become the basis of our secular religion. And the lawyers are the priests. At some time Canadians will decide to take control of their ageda back from the lawyers. That is when we will begin to give serious thought to repealing the Charter.

Now not that i am saying that i totally agree with this guy because i think he is stretching sometimes... but he makes some really strong valid points that i haddnt thought of before reading this...
just some food for thought

THE JEW (RaVeN) · Post by **THE JEW (RaVeN)** » Wed Mar 24, 2004 5:45 pm

Well, he certainly at least get "air time" proposing that liberalism is an American societal ideal.

Ghost [PX] · Post by **Ghost [PX]** » Wed Mar 24, 2004 6:01 pm

I only skimmed it, but I'll read the rest later. However, this jumped out at me.

There was a time when one had a pupable sense, on crossing the border, of entering a different society. This is no longer true.

I ALWAYS notice when I've crossed into the states. Its a noticably different society.

Paragon · Post by **Paragon** » Wed Mar 24, 2004 6:52 pm

When I was down in virginia over the holidays, even though I was surrounded by the same stores that we have in Canada, it felt really different.

Oh yeah - I think that the Charter is actually a protection of democracy. It is now illegal to restrict the rights of others. In a post-charter world, we wouldn't have put the Japanese and Italians in internment camps and sold their homes, like Canada did in WWII. It's no longer possible for the majority to do a knee-jerk reaction to a situation which would damage the freedoms of others.
And it is possible to democratically change the Charter. It just takes a lot of time and effort.

Tempus · Post by **Tempus** » Wed Mar 24, 2004 6:59 pm

It's no longer possible for the majority to do a knee-jerk reaction to a situation which would damage the freedoms of others.
And it is possible to democratically change the Charter. It just takes a lot of time and effort.

and money...damn near 2-3 million here in canada for anything dealing with the supreme court

THE JEW (RaVeN) · Post by **THE JEW (RaVeN)** » Wed Mar 24, 2004 7:12 pm

Whether they over-protect or not is the next thing. I'm sure Dempsey loved the rights the Charter gave the guy who rented his house.

[PX]Kal Bob · Post by **[PX]Kal Bob** » Wed Mar 24, 2004 7:13 pm

The Charter of Rights and Freedoms is plainly anti-democratic. See the definition bellow:

Democracy
1. Government by the people; a form of government in which the supreme power is retained and directly exercised by the people.

2. Government by popular representation; a form of government in which the supreme power is retained by the people, but is indirectly exercised through a system of representation and delegated authority periodically renewed; a constitutional representative government; a republic.

A representation of the population, I tack this to mean that if the majority of the population wants something, then that is the way it should be. The minority has a vote, they are not excluded. Why should the group the inputs the most be forced to do things by the people who put in the least? Also is in not a violation of the rights of the majority, to be forced into something by the minority?

As for keen-jerk reactions, what is wrong with them? If you touch something very hot, you have a "keen-jerk reaction" to drop it, thus saving yourself from serious harm. It would follow that the benefits of such a mechanism would cascade into larger society as well.

And in a final note, if you think that the internment of peoples would not occur in a future war, I think that you miss-understand the Charter. When entrenched into the Canadian Constitution, it came with a not withstanding clause. Thus any discriminatory law can be passed in violation of the character, if the government states "This law is passed, not-with standing the Charter of Rights and Freedoms". Quebec has been doing this for years.
It should also be noted that the Law is re-ratified every 5years if enacted in this way.

I love being a Devils Advocate!

THE JEW (RaVeN) · Post by **THE JEW (RaVeN)** » Wed Mar 24, 2004 7:18 pm

Don't forget Canada's own reaction to Sept. 11 with our own version of the Patriot Act (I forget the name). I *believe* we recently "deactivated" it, but it was still drawn up with powers above that of the Charter. Anyone remember that guy we turned over to the U.S. without a trial even though he was here?

[PX]IronFist · Post by **[PX]IronFist** » Wed Mar 24, 2004 7:24 pm

[PX]Kal Bob wrote:And in a final note, if you think that the internment of peoples would not occur in a future war, I think that you miss-understand the Charter. When entrenched into the Canadian Constitution, it came with a not withstanding clause. Thus any discriminatory law can be passed in violation of the character, if the government states "This law is passed, not-with standing the Charter of Rights and Freedoms". Quebec has been doing this for years.
It should also be noted that the Law is re-ratified every 5years if enacted in this way.

I love being a Devils Advocate!

If this is true, then who cares if the charter is un-democratic, the government can over rule it anytime.

THE JEW (RaVeN) · Post by **THE JEW (RaVeN)** » Wed Mar 24, 2004 7:27 pm

That's the irony, though. Judges could just rule the government stance unjust and shoot it down. It's just a hideous cycle where nothing gets done.

Welcome to the government.

[PX]Kal Bob · Post by **[PX]Kal Bob** » Wed Mar 24, 2004 7:34 pm

The Fact that the charter is un-democratic, is not the point. Do you think it is? that is the question :twisted:

[PX]IronFist · Post by **[PX]IronFist** » Wed Mar 24, 2004 7:35 pm

THE JEW (RaVeN) wrote:That's the irony, though. Judges could just rule the government stance unjust and shoot it down. It's just a hideous cycle where nothing gets done.

Welcome to the government.

I don't think they could though. If the law was "outside" of the Charter then how could the judges have any power to strike it down?

They could say that based on the charter the law was unjust but that wouldn't matter since the law has already acknowledged that.

[PX]Kal Bob wrote:The Fact that the charter is un-democratic, is not the point. Do you think it is? that is the question

Isn't that the whole point of Tempus' post? To let us know that the charter is "Antidemocratic and Un-Canadian". If not, then what exactly are we discussing here.

THE JEW (RaVeN) · Post by **THE JEW (RaVeN)** » Wed Mar 24, 2004 7:46 pm

We're not really discussing anything. When do we ever?

I'm sure the courts could warp the Charter to include whateve they want. All they need to say that the issue was treading on somebody's rights and *blam* they're in business.

[PX]Kal Bob · Post by **[PX]Kal Bob** » Wed Mar 24, 2004 7:49 pm

Tempus said:

discuss whether the Charter is ant-democratic

Thus there is a question here as to weather or not the Charter is ant-democratic, the whether gives it away. We all want to know what you personaly think and why. I guess the Question has no real anwser.....

[PX]IronFist · Post by **[PX]IronFist** » Wed Mar 24, 2004 7:50 pm

THE JEW (RaVeN) wrote:We're not really discussing anything. When do we ever?

I'm sure the courts could warp the Charter to include whateve they want. All they need to say that the issue was treading on somebody's rights and *blam* they're in business.

Right, they could warp the charter all they want, but who cares. The law clearly states "that the Act or a provision thereof shall operate nothwithstanding a provision included in...this charter."

That means that they can warp the charter all they want, but the law will still operate regardless.

[PX]Kal Bob wrote:Tempus said:
discuss whether the Charter is ant-democratic

Thus there is a question here as to weather or not the Charter is ant-democratic, the whether gives it away. We all want to know what you personaly think and why. I guess the Question has no real anwser.....

Alright, I think I understand what you mean. Even if it doesn't really matter that the charter is un-democratic we are still discussing if we personally think it is un-democratic or not.
Well, I guess my personal opinion is the the charter is indeed "un-democratic" if you define democracy as you have above. I also think that this isn't necessarily a bad thing, and that the law is well laid out to stop people from abusing the charter for their personal benefit at the expense of the group.