Friday, October 1, 2010
The Notwithstanding clause of the Charter of Rights
When discussing some of the outrageous decisions coming from the courts of late, a reader quoted Section 33 of the charter of rights - the Notwithstanding clause and said that Parliament doesn't have to listen to the courts so don't blame the judges. Kinda sounds like something Wally Oppal would say.
Basically the clause states that the federal or a provincial government can create a law notwithstanding a provision in the Charter of rights which in essence means it can violate the Charter of Rights with a five year time limit which may be reenacted.
The Charter of Rights was created to replace the Bill of Rights which the courts interpreted to be a mere guideline. The intent of the Charter of Rights was to make the Bill of Rights unalienable rights so to speak.
Many provinces were concerned at the time about how it would significantly shift political power from elected legislatures to appointed courts. The Notwithstanding clause was subsequently added to the Charter as a means of alleviating these provincial concerns.
Although I agree with the concerns about shifting power from elected government to appointed courts, the whole idea of creating a Charter of Rights then creating a loop hole saying parliament can suspend the Charter seems like a contradiction. Seemingly the Bill of Rights in the US has no such exemption.
Eileen Mohan referred to our sacred charter and how criminals are using it against us so that the rights of criminals have become more important than the rights of law biding citizens. Steve Brown referred to the constitutional obligation to provide public safety.
Basic rights are nonnegotiable. Free speech is one of those rights. Lawful assembly is another. Freedom of religion is one as is the freedom not to be discriminated against for race, national or ethnic origin, colour, religion, sex or age. The right to be secure against unreasonable search or seizure. The freedom from being arbitrarily imprisoned, the right to a fair trial, the need to be charged with an offence all are nonnegotiable rights just as mobility rights.
The concern is when a judge in a court of law misinterprets that charter to mean committing a criminal offense is a charter right. That is nonsense.
Section 467.13 of the code made it illegal for a member of a criminal organization to instruct someone else to commit an offence. Hells Angel defense lawyer Matthew Nathan successfully argued that section of the code was a violation of the charter. B.C. Supreme Court Justice Heather Holmes concluded the law was too broad and vague, and therefore violated the constitution. That is insane. That is the root of the problem.
We don't need a provision in the charter which lets the government violate the charter. We need a provision in law to uphold the charter when it is violated and misinterpreted by the courts. Freedom from cruel and unusual treatment or punishment is not negotiable. Do we really want to empower the government to suspend the laws banning torture because we have.
The double edged sword is simple. We want to protect citizens from giving governments too much power to violate basic human rights and we want to protect citizens from giving the courts too much power to violate collective rights and the constitutional obligation to provide public safety. Claiming it is a charter right to instruct someone to commit a crime on behalf of a criminal organization is insane.
Drug use is not a charter right. The court does not have the right to tell me I have to have a safe injection site in my neighbourhood and I have to pay for it with my tax dollars. The court does not have the right to tell me I have to have a safe inhalation site in my neighbourhood where people can smoke crack at the taxpayers expense. Our social programs would go bankrupt pretty fast not to mention our social values.
When the courts tell me human trafficking is a charter right then it's time to fix the courts not the charter. The charter of rights is fine. The judicial system is not. In the US judges are elected. Perhaps that is something we examine. Either way creating a mechanism to fire or replace bad judges who ignore public safety because big brother knows best is an immediate priority.