Month: January 2006

There is nothing more embarassing about human existence that the principle “if you say enough, it it will be true”. No greater example of this exists than the phrase “activist judges” which has been successfully shoved into the parlance by axe-grinders. Sadly, though not unexpectedly, the current poll leader in the Federal election has trotted out this sham:

Stephen Harper says some judges appointed by the federal Liberals are activists working to promote their own social agendas, statements that drew heavily from his tenure in the old Reform and Canadian Alliance parties. The assertions by the Conservative Leader, whose party leads the public opinion polls, mark one of the few times during a tightly scripted election campaign that he has strayed far from the centre of the political highway.

A thinking person’s first response to this ought to be somewhat similar to hearing that our Foreign-Minister-in-Waiting, Stocky, will have difficulty dealing with visits to Kenya giving their obviously heretical and slanderous position on the meaning of the Rift Valley’s contents.

How is it that claims of a secret agenda of the right is a farce but the secret agenda of judges is lapped up by the willing and the weak? How is it that one part of the constitutional structure can so misrepresent another part of it and not be labelled as disloyal to the core by traditionalists (not to mention the sentient) as finger-pointery folk offer up freely for anyone who suggests, say, that Arctic paratrooper capability as a defence against sub-ice-cap submarines might not be the best use of military resources? It is clear from all objective considerations that, by body count at least but more so the right to hit the brakes, the responsible authors of constitutional change brought on by the Charter of Rights and Freedoms were the mainly conservative premiers who signed up for it and did so rightly as it expresses the complex nature of Canadian democracy and details it more and more as it is unfolds through each ruling. The courts, in doing so, play the role demanded of it with honour and intelligence (but without political pressure though as humans) through the combination of the facts of its historical constitutional existence and the task asked of it by the legislators.

“Activist judge” is just another way of saying “person who disagrees with me”. Shammery and wilful blindness from the same folk who would restructure the Senate to actually give it power and distribute that power unequally to the low population zones of the nation. Another step by a political minority seeking to remake the nation and impose it on the rest of us. You have to at least admire their gall.

A couple of conservative bloggers got me thinking. This in tiself has me a bit worried but we are all working towards that grand CPC/NDP coalition…right? Right?

• The Liberal Party has voiced opposition to the entrenchment of property rights in The Charter of Rights and Freedoms, Canada’s primary constitutional document defining the limits of how far any part of the state can intrude on the rights of individuals – relying, oddly, in part of a heretofore unknown creature, the prominent blogger.
• The Liberal party has run the Federal government for the last 13 or so years and for the best part of the preceding decades of Canadian existence and should have a sense of the powers which were entrusted to it.
• on 10 August 1960 The Bill of Rights received Royal Assent. It contains the following provision:
  

  1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely,

  (a) the right of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law;

• The next section of The Bill of Rights has a very interesting provision:
  

  2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared…

  This section means that the laws of the Federal Goverment need to comply with The Bill of Rights. In this sense, like a piece of human rights legislation or an Interpretation Act, The Bill or Rights is quasi-constitutional. Not quite as over-riding as the Constitution but one that demands compliance within its sphere of influence. We learn that in section 5(2) which defines “law of Canada” as follows:

  The expression “law of Canada” in Part I means an Act of the Parliament of Canada enacted before or after the coming into force of this Act, any order, rule or regulation thereunder, and any law in force in Canada or in any part of Canada at the commencement of this Act that is subject to be repealed, abolished or altered by the Parliament of Canada.

  A somewhat broad definition limited only as follows in 5(3):

  The provisions of Part I shall be construed as extending only to matters coming within the legislative authority of the Parliament of Canada.

• Although rather ineffective as an instrument of societal change and even though it was overshadowed The Charter of Rights and Freedoms came in twenty-one years later, The Bill of Rights continues to apply in law for certain purposes. While the Supreme Court of Canada held in the Anderson case in 2003 that The Bill of Rights could not provide protection for certain injured and ill veterans and their families against legislated expropriation without hearing, it did confirm section 1(a) continues to exist:
  

  …The Bill of Rights guarantees notice and some opportunity to contest a governmental deprivation of property rights only in the context of an adjudication of that person’s rights and obligations before a court or tribunal.

  So not everything but something. The court stated that where no adjudicative procedure is necessary for the non-discretionary application of a law, the provision provides no benefit and the court illustrates this with the example that a taxpayer could not claim procedural protections against a change in income tax rates that adversely affected him.

What I think this all means is that where a Federal law sets out a process for deprivation of properly it must be due process and provide certain procedural rights such as fairness. Where, however, the act in question is not delegated but imposed directy by the Parliament itself there is no benefit of The Bill of Rights because of that pesky word “enacted” highlighted in bold above. The protections of the Charter get into the “enactment” of a statute and that is the difference. Hence the practical uselessness of The Bill of Rights as a tool against the legislated fiat such as in Anderson.

So when the Liberals say that placing property rights in the Constitution “would dismantle Canada’s social safety net” it might be fair to say that it would do so if there was some anticipatible consequence in a Court ruling supporting a previously unentrenched property right lurking there in The Bill of Rights. All The Bill of Rights can do is ensure the Federal Government must uphold property rights in its delegated processes. In other cases, the Federal Government and the provinces would need to agree to put property rights in the Charter at risk of unacceptable outcomes. But in that case, there is alway section 33 of the Charter and the notwithstanding clause. Right?