April 23 2012: Alberta Provincial Election

[Iowa_Flames_Fan]

Originally Posted by First Lady

No, I can't. Not a lawyer and won't pretend to be one.

I do know there is very broad interpretation of every aspect of the charter. Thinking of the case where the McDonalds worker refused to wash her hands.

It is true that the rights and freedoms in the Charter generally receive a "broad, purposive" interpretation. However, the 2(a) freedom has actually been pretty extensively litigated and has been the subject of appellate review all the way up to the highest court of our land. There really isn't much mystery any more about the content of 2(a)--and, significantly--its legal limits, which don't allow for what you describe as a "conscience right."

It may not be the place, but I guess what I think you should know is this: the case law governing the 2(a) freedom as set out by the Supreme Court of Canada does not support your interpretation of its content. You might be able to base "conscience rights" on something else, but you can't base it on the Charter. The law just isn't on your side.

I'd be happy to tell you more if you're interested in why. You might also pass that along to others in your party if they are also making this argument.

[First Lady]

Originally Posted by Iowa_Flames_Fan

It is true that the rights and freedoms in the Charter generally receive a "broad, purposive" interpretation. However, the 2(a) freedom has actually been pretty extensively litigated and has been the subject of appellate review all the way up to the highest court of our land. There really isn't much mystery any more about the content of 2(a)--and, significantly--its legal limits, which don't allow for what you describe as a "conscience right."

It may not be the place, but I guess what I think you should know is this: the case law governing the 2(a) freedom as set out by the Supreme Court of Canada does not support your interpretation of its content. You might be able to base "conscience rights" on something else, but you can't base it on the Charter. The law just isn't on your side.

I'd be happy to tell you more if you're interested in why. You might also pass that along to others in your party if they are also making this argument.

Please, feel free to communicate it directly to the party. info@wildrose.ca

I'm very frustrated by this whole thing. I laid out why in my blog this morning.
Party Policy vs Platform vs Legislation

[transplant99]

Why would you get a job as a marriage commissioner if you didn't believe in commissioning marriages?

I wouldnt...doesnt mean others wouldnt i guess. I am saying however that there were commisionaires long before there was gay marriage and as such they should not be forced to do what they dont believe in....im still saying i find it very doubtful there would be many, if any, of them however and if need be someone who doesnt mind would have to do it for them. Again an non-issue in my books.

But you don't think that guy at Suncor should be fired, because he has the right to refuse to do his job based on his "conscience rights". It's surprising, but it's right there...

Actually i would think he should be fired yes....but again I doubt anyone would get into such a position with such a bellief system. Not a comparable at all unless every existing marriage commisionaire was vetted first and said they had no such issue then changed their stance. I am much much more talking about medical professionals who are against abortion.

On top of all this theoretical stuff though....why would any couple or any woman want to go to a service provider who doesnt want to provide said service? Would you not seek out those who are good at it instead of the person who obviously isnt going to have their heart in it? Just seems like common sense to me.

I don't know where you got that idea. I believe that people who are marriage commissioners should do their job.

Just being obtuse now?

I'd never heard of this "conscience rights" crap until probably Wednesday. I didn't make it up, and we have a Wildrose mouthpiece in here defending it.

Neither had I but i certainly understand the principle behind it all. It protects everyones rights not just a group....that being said i will once again infer the amount of times this would actually become any sort of issue would be miniscule.

Why would you get a job as a civil servant if you didn't believe in what the government of alberta (or whatever laws - fed or prov or municipal) say you must do? Otherwise, how is the below not the outcome?

So you are saying that if a doctor is against abortions and refuses to perform them, he shouldnt be allowed to practice whatsoever?

Mind boggling.

Granted that commisionaires are a different subject that i addressed already.

[Iowa_Flames_Fan]

Originally Posted by First Lady

Please, feel free to communicate it directly to the party. info@wildrose.ca

I'm very frustrated by this whole thing. I laid out why in my blog this morning.
Party Policy vs Platform vs Legislation

Sorry, I'm not about to give legal advice to the party. I'm not a lawyer either, so it would be unethical anyway--and if I did, I certainly wouldn't do it for free.

In any case, this stuff is all out there; it's not hard to find.

To be honest, I'm not terrified by this "conscience rights" stuff the way some seem to be. It just seems kind of... silly and unprofessional. You have a party that is trying desperately to appear credible and their members are running around putting forward policy planks that are unconstitutional, unsupportable in law, outside of provincial jurisdiction, etc. (I know you're trying to draw some important distinctions here, but I'm going to insist that these people's opinions matter; otherwise, why have an election instead of just having people submit their resumes to the lieutenant-governor?)

And then when the leader is forced to backpedal, we get to hear about some "leftist (or, even more laughably, liberal) conspiracy." (I still live in Alberta, right?) Let's be clear--the Wild Rose has made its own bed with this stuff, and now they get to lie in it.

The worst part is that these clowns are probably going to win the election. I do want to give Danielle Smith a lot of credit for that. She really is a very good politician, and is absolutely blowing everyone else out of the water right now. I just want to know: when she gets in, will the lunatics be running the asylum?

[MarchHare]

So you are saying that if a doctor is against abortions and refuses to perform them, he shouldnt be allowed to practice whatsoever?

Mind boggling.

Is that what anyone has said? I'm not an expert on the medical practice, but I'm pretty sure that to perform abortions one needs to specialise into a certain branch of medicine and voluntarily choose to open an abortion clinic (or work at an existing one). It's not like brain surgeons or ear/nose/throat specialists moonlight as abortion providers.

Can you cite a single example of a Canadian doctor ever being forced to perform an abortion against his or her religious beliefs?

[Iowa_Flames_Fan]

First Lady, I also want to clarify that to the extent that some of my comments are disparaging, they're not directed at you. I really appreciate your being here to discuss this stuff with us and you seem like a very smart and reasonable person.

Thanks for the discussion.

[transplant99]

Originally Posted by MarchHare

Is that what anyone has said? I'm not an expert on the medical practice, but I'm pretty sure that to perform abortions one needs to specialise into a certain branch of medicine and voluntarily choose to open an abortion clinic (or work at an existing one). It's not like brain surgeons or ear/nose/throat specialists moonlight as abortion providers.

Can you cite a single example of a Canadian doctor ever being forced to perform an abortion against his or her religious beliefs?

Nope....which is why this is all a non-issue whether or not "consceince rights" are allowed.

Its some others that want people fired for not doing something they are against doing based on religious freedoms...not me.

[Slava]

Originally Posted by Iowa_Flames_Fan

First Lady, I also want to clarify that to the extent that some of my comments are disparaging, they're not directed at you. I really appreciate your being here to discuss this stuff with us and you seem like a very smart and reasonable person.

Thanks for the discussion.

I just want to echo that same sentiment. I have tried to keep this focused on issue and hopefully you know full well its absolutely nothing personal with me. I actually thought about this over the past week and there are two points I thought I should make:

A) I actually a Wildrose candidate running in a riding nowhere near me. I met him last summer along with his brother and frankly they were great guys. If I lived in his riding I would probably vote for him actually, based on what I know of him and his character.

B) I probably would've voted for you in the civic campaign, despite our fairly evident political differences! I do think that we agree on more than we disagree on actually, despite a few obvious points.

I also know that you're a smart lady, and I'm right, so sooner or later you'll see it my way!

[Thunderball]

Reality is, should the Wildrose form government, what this is going to boil down to is the abolition of the Human Rights Tribunal, and its replacement being a part of the Provincial Court system. This is a good thing.

As for the conscience rights thing, its sort of a silly, minor thing that probably will be severely limited by any judgment. However, I feel a lot more confident with a judge reviewing its applicability and making this call on a case by case basis than some layman political patronage appointee or politician.

Proper adjudication has to be made on an objecting marriage commissioner or doctor refusing certain procedures, or any other "crisis of conscience" based on a 2a/2b charter objection. Applying and understanding Morgantaler, Anselem, Big M, and other leading s. 2 cases, as well as Oakes for the s. 1 exception, be that objector Christian, Jewish, Muslim, or any other "conscientiously" and "solemnly held belief." The court would need to effectively answer if their freedom of conscience and religion is actually being contrained because of government compelling performance/abstinence of acts because of religious significance, crisis of conscience of those acts to others, the right to be free from coercion or restraint, and then if those constraints are trivial or non-substantial, and then under Section 1 if it is reasonable limitation on a balance of probabilities. I don't think objectors can satisfy this, but I'd be open to seeing them try, and would be open to a government that allows the limits of the charter to be tested to ensure everyone's freedoms are protected. Is this the best case? Probably not.

There are many dubious cases in Canada pertaining to reasonable limits on religious exceptions that have gone both ways. Its complicated, and it always belongs with the Courts, not some politicized tribunal. The Wildrose has that much right.

[longsuffering]

nm

[Jacks]

Originally Posted by MarchHare

Is that what anyone has said? I'm not an expert on the medical practice, but I'm pretty sure that to perform abortions one needs to specialise into a certain branch of medicine and voluntarily choose to open an abortion clinic (or work at an existing one). It's not like brain surgeons or ear/nose/throat specialists moonlight as abortion providers.

I'm probably a fool for even getting involved in this discussion but if what you just said is true then why would anyone be afraid that a doctor who "voluntarily choose to open an abortion clinic (or work at an existing one)" would refuse to preform an abortion?

[Iowa_Flames_Fan]

I agree, with the stipulation that given the relatively narrow language in Amselem, I think they'd have virtually no chance. However, I certainly agree that on an individual level there should be (and there isn't, as far as I know) no obstacle to a person's challenging a policy of the government under 2(a).

However, this is (as I understand it--and FL, feel free to set me straight on this) a Party Policy being put forward by some members of the Wild Rose, which makes it somewhat different than Charter litigation on an individual level--the Alberta government would be, if it went through, enacting policy with respect to "conscience rights" in a manner that requires a much broader reading of 2(a) to contain, firstly, an implementational component (presumably, the government must now act to protect your conscience rights, something that even private entities were not required to do in Amselem, and that the Courts have been unwilling to do) and furthermore, the government would then be placing, as a matter of policy, the 2(a) freedom on even footing with the s. 15 equality right, which could lead down a very sticky path. In essence, by elevating the 2(a) liberty to an implementational right, the government would then expose itself to s. 15 litigation, and if the result of their policy was that people could not exercise certain legal rights, or access medical services that are lawful on the basis of some protected ground under s. 15, this policy would be struck down.

So I'd say--as a matter of policy, sure. A marriage commissioner should be permitted to bring litigation under 2(a) to ask the courts to enjoin the government from requiring them to perform certain marriages, for instance. A doctor could do the same thing for abortions, I suppose, though that seems goofy--why would you be practicing in that area if you had moral objections? There has never been any obstacle to this practice and it should continue--we must always be testing the scope and content of our Charter rights and freedoms.

But it doesn't follow that the Alberta Government should formally adopt some "conscience rights" policy--that would lead down a very problematic path.

[Thunderball]

I agree, so long as their policy stays on de-politicizing the HRT and allowing people to challenge on conscience rights grounds, thats fine. Once you start legislating, personally I suspect the courts will smack the government's pen out their hands pretty quick, and if not, you're right, it becomes a balancing act of 2a/b and 15 and it becomes very sticky.

[transplant99]

So what you guys are saying in laymen terms (if i am understanding correctly which is very much dubious at best ) is that the whole thing is really a non-issue unless the elected goverment actually enacts legislation one way or the other on specific areas?

[Thunderball]

Originally Posted by transplant99

So what you guys are saying in laymen terms (if i am understanding correctly which is very much dubious at best ) is that the whole thing is really a non-issue unless the elected goverment actually enacts legislation one way or the other on specific areas?

Pretty much, at least in my very green opinion. Plus, anything they legislate will be immediately challenged. You can pretty much bank on that.

I strongly, strongly suggest to the Wildrose to keep their defense of conscience rights with the individual, and just focus on the HRT for them to challenge individually. Do not even think about new protection laws, lest you want to spend many years in court challenges and likely lose.

[TorqueDog]

Originally Posted by First Lady

I guess some feel it's okay for healthcare workers religious rights to be trampled on. And I believe they can co-exist along side everyone else's rights.

They can believe whatever they want but they must leave us out of it.

In the case of the Arizona pharmacist refusing to dispense birth control due to religious belief, that is not leaving us out of it but holding us hostage with it, and it is that sort of theocratic encroachment on free society that infuriates me. You may not believe in birth control. Fine, no one is forcing you to use it, but you absolutely cannot impose those beliefs upon others when you are in such a position that people rely on you to grant access to it.

Stories like that are what make me long for a truly secular society where these sorts of irrational beliefs are treated as they deserve to be; with ridicule and contempt.

[kn]

Originally Posted by Thunderball

Plus, anything they legislate will be immediately challenged. You can pretty much bank on that.

As politically suicidal as it might be, could they invoke the notwithstanding clause to ignore the outcome of such challenges?

[transplant99]

Originally Posted by Thunderball

Pretty much, at least in my very green opinion. Plus, anything they legislate will be immediately challenged. You can pretty much bank on that.

I strongly, strongly suggest to the Wildrose to keep their defense of conscience rights with the individual, and just focus on the HRT for them to challenge individually. Do not even think about new protection laws, lest you want to spend many years in court challenges and likely lose.

which i think is what they are saying...at least in terms of the abortion statement of a couple days ago...no?

[c.t.ner]

Not to derail the conversation, but ThreeHundredEight has an updated seat projection and analysis on the election so far.

http://threehundredeight.blogspot.co....html?spref=tw

Interesting trends between the three main areas in the Province, with The WRP plateauing in Edmonton, about to plateau in Calgary and still soaring in Rural Alberta.

It's going to be curious to see how this all plays out. My take is that we're going to see a bit of a downturn in week two for the WRP in Calgary and Edmonton. I can't see a way that the PCs get completely shut out in Calgary, especially with the Premier in Calgary Klien, or other candidates such as McIver and Jansen not getting in. I'd also be shocked if Hehr isn't re-elected in Calgary. (That being said, I don't have boots on the ground in Calgary so I don't know what's really going on).

But the other outcome which might be interesting if this start to soften or plateau in regards to the WRP in these two cities, is we could have a very definitive divide between the rural areas and urban areas.

[Iowa_Flames_Fan]

Originally Posted by c.t.ner

I'd also be shocked if Hehr isn't re-elected in Calgary. (That being said, I don't have boots on the ground in Calgary so I don't know what's really going on).
.

Based on lawn-sign mass, both Hehr and David Swann are looking strong. I wouldn't be shocked if there's a bloodbath elsewhere in Calgary, though (surprisingly) Norval Horner (the liberal candidate) appears to be winning the sign war in Calgary Currie by a significant margin, with Cusinato (PC) second and the Wild Rose candidate a distant third.

For whatever that's worth--counting lawn signs is of course not very scientific.

Currie's a funny riding--it's gone both PC and Liberal in the past 10 years, so I think it's fair to call it a "swing riding" in a structural sense. Given the overall weakness of the Liberals, it'd be reasonable to suppose that they will also lose Currie, which is why I've been surprised to see so many Horner lawn signs.