[MBates]

Originally Posted by iggy_oi

You’d probably need to rewrite the charter first mr freedom fighter

Stopping by to make a quick public service announcement...

I think that Canadians need to get very quickly educated on how much of the Charter that they take for granted is not the constitutional law that they want to think it is.

Simple majority government legislation can infringe / ignore all of the following:

2 Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

...

7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8 Everyone has the right to be secure against unreasonable search or seizure.

9 Everyone has the right not to be arbitrarily detained or imprisoned

10 Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

11 Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;

(b) to be tried within a reasonable time;

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

(e) not to be denied reasonable bail without just cause;

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

12 Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

13 A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

14 A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability

There is no Charter re-write required to render Canada unrecognizable for 5-year chunks at a time.

The advocates and political types who are attempting to loudly declare that section 33 of the Charter was never meant to be used pre-emptively, or to look for ways to invent new legal arguments to curtail its use that are plainly not there, are doing a major disservice to their own interests (because people who believe them may be comforted to not worry about voting for a government planning to use it widely).

What Canadians need to understand before electing any government is that massive swaths of their Charter rights absolutely can be lawfully deleted limited essentially only by the feelings of shame that might hold a majority government back on some issues (and the aforementioned 5 years at a time limit).

As the federal Leader of the Opposition recently started foreshadowing his intent to pre-emptively invoke the notwithstanding clause as Prime Minister, all kinds of people were beside themselves at the thought of such an 'unprecedented' move...but the Supreme Court of Canada has already long ago ruled on the legality of such conduct. Citizens who do not want that to be done need to not elect governments who will do it (because they can and will).

Once invoked, section 33 effectively precludes judicial review of the legislation under the listed Charter sections. A section 33 declaration is only valid for 5 years. After this time period, it ceases to have any effect unless it is re-enacted.

Section 33 lays down a requirement of form only. In invoking section 33, the legislature does not need to identify the provisions of the Act in question which might otherwise infringe specified guaranteed rights and/or freedoms, nor does the legislature need to provide a substantive justification for using the override (Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, paragraph 33).

A declaration under section 33 is valid if it generally names all of sections 2 and 7 to 15, without specifying the possible provisions to which the override may apply. Omnibus legislation will not affect the validity of the declaration (Ford, supra).

Where the legislative intent is to override only part of the provision or provisions contained in a section, subsection or paragraph of the Charter, there must be a sufficient reference in words to the part to be overridden (Ford, supra).

The general rule of interpretation against retroactive and retrospective operation applies to section 33 of the Charter: section 33 has been interpreted by the Supreme Court as permitting prospective derogation only. If enacting legislation purports to give retrospective effect to an override of the Charter, the legislation is, to that extent, of no force or effect. (Ford, supra; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927).

https://www.justice.gc.ca/eng/csj-sj...ity%20rights).