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.

9 comments:

  1. Elected judges? wtf? I appreciate what you're trying to do here with this website but give your head a shake. The entire court system revolves around the objective interpretation of the law. It is not a popularity contest. When you start looking to the United States for direction you've lost it.

    Oh, one other thing. Given the high-profile stories in the news lately of gay kids killing themselves after being outed, do you ever think that you are a part of the problem every time you taunt various gangster scum with anti-gay slurs and bigotry?

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  2. Unfortunately our entire court system in BC currently revolves around the misinterpretation of the law. Chronic offenders doing less time the more crimes they commit is one example of many. When judges keep screwing up there is no current recourse and there needs to be. The US Constitution is an excellent model for a democratic society.

    As for the gay suicides, I have absolutely no problem with someone being gay. I have a problem with gang members being bullies and using fear to prevent people from testifying against them. Mike’s pink princess seat is obviously for his partner or his girlfriend. Personally I think it looks dumb and I wouldn’t be caught dead riding that bike.

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  3. Sean Wolfe and Tiny Mac were accused of kidnapping a youth, threatening him with a gun and beating him with a hammer. The victim was too scared to press charges. Making fun of their physical appearance has nothing to do with bigotry and everything to do with opposing bullies.

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  4. The chronic offenders you mention are the severely drug addicted repeat offenders that steal cars, or steal from cars, homes and shops to feed their relentless addictions, and who find themselves before a judge several times each year.

    No doubt society is frustrated. These are the people that society has failed. Society failed to protect them when they were children being abused; sexually abused, physically abused, and now because of the damage they suffered, they are preyed upon by the drug-dealing organized crime element who sell them drugs, act as their pimps, and otherwise exploit them.

    The medical community and the legal community is a little ahead of the game in the sense that they recognize the truth that drug addiction needs to be looked at as a serious health issue and one which, in the legal sense, diminishes a person's capacity to make decisions. So it's true that whereas in the US, lets say for example, a 23 year old First Nations crystal methamphetamine addict (who as a child suffered serious physical and sexual abuse at the hands of his foster parents) appearing before a judge for the twentieth time for car theft, might receive a life sentence, or a sentence of fifteen or more years, here in Canada a (non-elected) judge will take the defendant's entire situation into consideration and mete out a sentence of only three or perhaps four years.

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  5. Three years? What a crock of sh*t. Chronic offenders in BC don’t even do three months. In the US they have something called three strikes and you’re out. While in Canada the VPD can’t even implement 30 strikes and you’re out. It is a complete joke: http://www2.canada.com/theprovince/news/story.html?id=bda68f0d-6ef6-42d6-b6a7-895e54442125

    And yes, most of these chronic offenders are stealing to support their drug habit so the Hells Angels don’t cut their fingers off for a miniscule drug debt. Society has failed them because Society has become enablers for the Hells Angels drug ring.

    Chronic offenders who steal to support their habit and dealers who sell crack should get three months in jail. The Hells Angels who profit from the crimes of the addicts should do life. Period.

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  6. although I agree with everything you say when it comes to gangsters, and the light sentences they receive, I would like to see you post something about the accountability of our police force. It seems like every month I read something in the newspaper whether it be cops killing an innocent robert Dziekanski at the vancouver airport, van cop peter hodson selling drugs, the police officer that assaulted the disabled woman, etc. etc. etc. we have a system where cops investigate cops and it all ends up being one hand washes the other and they all get off. I am a 24 yr old male born and bred in whalley. I have never been involved in any crime I just work 40 honest hours a week. I would rather see a hells angel wearing full colors walking down the streets than the police around here. We all know H.A. is gonna deal drugs and do what they do. At least they dont hide behind a facade of to protect and serve when they are no better than the rest of the criminals around. The younger gen is seeing this reality more and more. Things are never going to get better until people can trust the police

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  7. Thanks for your input. I guess I have two points. I agree police need to be accountable and the public needs to have trust in the police which has on occasion been violated. I wrote a bit about the taser incident at the airport. They made a mistake. I think they over reacted and I don’t think those type of tasers should be used where they fire an electrode into someone while they crank up the amps like shock therapy in an old psych ward.

    I think the cop selling pot was mentioned but I didn’t see it as big a deal as if he was selling crack. The police are dealing with him in the courts. I did write about the cops who pushed over that disabled woman in East Van. That was disappointing and things there need to improve. I guess my biggest beef with bad cops are the ones on the take supplying the Hells Angels with information. They put everyone including their coworkers at risk.

    However, you make a very good point. You say you live in Whalley and “We all know H.A. is gonna deal drugs and do what they do.” I guess that’s my point. I didn’t know that. They whine and cry about just being a motorcycle club and deny selling drugs. As long as everyone is honest and admits that selling drugs in Whalley is their primary business then that’s a step forward.

    However, that in turn opens a new can of worms. If the Hells Angels sell drugs in Whalley, does that mean I’m not allowed to unless I pay their tax? Why should I have to work for them if I don’t want to? Them selling drugs is one thing but them saying I can’t sell drugs in whalley unless I work for them is bullsh*t. The same with grow ops. If I have a grow op in my house and the Hells Angels come in and say I have to work for them, my response is no I don’t. Then all of a sudden people start dying and we have a gang war. Well guess who started it.

    Then we have the people who are tortured for drug debts to the Hells Angels. Then we have the Hell Angels prostitutes that end up dead and mutilated. Then we have people who used to work for them like Geoff Mesiner and Brittney Irving who end up dead or missing. My other concern is the “we all know what they do” part of your statement. I only know the tip of the iceberg about what they really do and it’s outrageous. I can’t accept that.

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  8. well said. it just bothers me with the path I see our community going down. you have the older generation like my dad that when I brought up the robert Dziekanski incident he just assumes that he got whats coming to him and must have deserved it. I had to force him to watch the video before he realized what actually happened. Then you have the younger generation that sees this all too well with everything being posted on youtube and all over the internet these days. I just dont want whalley to turn into a place like south central LA or most other ghettos in the world where everyone is so distrustful of the police that talking to police becomes a source of shame. It is because of incidents like rodney king and hundreds more like it that the "stop snitching" movement began. The best way to stop these gangsters is information and tips from concerned citizens. The sooner the police realize that, and get a better handle on their PR and accountability the better.

    Instead of bitching I suppose I will just continue to vote for Diane Watts (mayor) and the federal conservatives (mp) in hope that the effort to clean up whalley and stricter punishment for drug crimes continue.

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  9. The Robert Dziekanski incident was a tragedy. Repeatedly tasering him was another concern. There was another video of a guy who was not violent yet exposed himself in public. Instead of just arresting the guy for indecent exposure they tried forcing him to put his clothes back on. They tasered him and while he was doing the limp fish because the electricity was reeling his body they took that as noncompliance to their command for him to roll over and kept tasering him over and over agin. Repeated tasering is dangerous.

    LAPD do have a bad reputation since the Rodney King thing. Right now the Hells Angels reputation isn’t much better. Their puppet clubs are cutting off fingers and torturing people for drug debts in Prince George which makes us wonder about the woman who advocates claim was pushed out of a hotel in Vancouver for drug debts. Building public trust in the police (earning it) and getting people to report crime to the police would help greatly.

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