Quote:
Originally Posted by Manhattanboy
It was all kind of a mess to begin with because in our usual Canadian way (likely a compromise by Trudeau senior to get the provinces to agree to the Charter) some of the basic fundamental freedoms set out in the Charter are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
And thus began years of jurisprudence as to what that means.
Edit: and then there’s the notwithstanding clause….
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It might not be ideal, but at least putting it on the judiciary to interpret whether something is "reasonable" in a "free and democratic society" rather than leaving it up to the legislative branch of government to explicitly carve out limitations we generally all think would be reasonable prevents back-and-forth, see-sawing of those limitations. I.e. we don't have Conservative and Liberal governments rewriting the
Charter every time they get into power. (Not that that would be easy to get accomplished anyway...) Conversely, leaving the judiciary some leeway to interpret what's reasonable and what's not also means that as society's mores change you don't have to reopen a constitutional debate to decide whether it's reasonable or not: it can be found reasonable or unreasonable by a learned member of the bench whose job it is to interpret the law, rather than leaving it in the hands of partisan politicians to do so.
I find a lot of people who complain about Section 1—and I'm not saying this is the case with you—see it only as a mechanism by which their freedoms can be limited, rather than seeing it go both ways: it is also a simple mechanism by which we find limitations unreasonable. Witness the decision we were talking about over the previous pages. If not left up to a judge to interpret, without giving them the responsibility to do it, it would have been left up to a Liberal government that would have blithely rubber-stamped an interpretation that their invoking the
Emergencies Act was reasonable.
(As an aside: I also find many people repeat American right-wing media talking points about how "'Murica is a free country and Canada isn't" because of Section 1. Frankly I think these people are gullible rubes because they don't get that Section 1 also protects us from absurdly unreasonable limitations to expression, such as obscenity laws found in the States that lead to book-bannings—which I think is
extremely dangerous—and nonsense such as the possession of sex toys being outlawed in Alabama.)
A limitations clause was always something that P. E. Trudeau intended to include, but the notwithstanding clause was added to get provincial buy-in to the entire thing. I've known many people who mistakenly believe it was an acquiescence to get buy-in from the Quebec government of Levesque, but it was actually Peter Lougheed's idea in the first place. Even though Levesque's government invoked the clause more than any other at the time or since, he was incensed about being left out of the final overnight deliberations between Federal Justice Minister Jean Chretien and two of the provincial attorneys general, and he invoked it across all Quebec laws as a nose-thumbing at the feds and rest of the provinces.