Keep talking, Mr Vellacott

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It has been a busy week for Maurice Vellacott, Conservative MP for Saskatoon-Wanuskewin.

First he put a lot of strange words into the mouth of Canada's chief justice, Beverly McLachlin. His misreading of a nuanced speech she had given was so egregious that the Globe and Mail felt compelled to correct him in an editorial:

He claimed Chief Justice Beverley McLachlin had said that when judges take an activist role, "all of a sudden there's some mystical kind of power that comes over them . . . and they take on almost these godlike powers. She said that herself. I didn't say that." In fact, she said nothing of the sort. Mr. Vellacott was just airing his own dismissive attitude toward the courts -- a strange view for the chair of the Commons aboriginal affairs committee to hold, given the role of the courts in determining and upholding aboriginal rights.

In fact, Justice McLachlin's speech had affirmed the opposite of godlike powers -- the power of human reason to work from basic democratic principle to interpret individual cases. The chief justice broke her traditional silence in the face of public criticism to deny that she had ever claimed to be godlike; even the PMO decided it would be politic to announce that Mr Vellacott's views on the workings of the Supreme Court are not those of the government.

Undeterred, on Wednesday, when Mr Vellacott, an ordained minister, resigned as chair of the Commons aboriginal affairs committee under threat of a non-confidence vote, he kept the godlike motif going through scattershot comments wherein the godlike seemed at once very Bad (the Liberals) and very Good (his own revealed views on aboriginal affairs):

Facing defeat as chairman, he attacked the Liberals for, yes, believing they had godlike powers. "They seem to think that they have some divine right to govern, and it is deeply upsetting to them when the public judges otherwise." And, announcing his resignation as chair, he sought divine support for his own future. "I submit to a sovereign God to provide me that opportunity [to serve aboriginal Canadians] at some point in the future."

Now, Mr Vellacott's revealed views on aboriginal affairs have seemed -- oh, how shall we put this? -- other than neutral in the past:

he defended two Saskatoon police officers who were convicted of unlawful confinement. The two officers admitted to driving an aboriginal man outside of town and leaving him to walk home on a -25 winter evening.

But let's not digress. At least Mr Vellacott's replacement as chair of the committee, MP Colin Mayes, is not known for complicated prior views on aborginal affairs. He is known, unfortunately, for complicated prior views on journalists ...

Mr. Mayes made headlines last month when he wrote an opinion column in a local newspaper suggesting reporters should be jailed for writing misleading stories.

"Maybe it is time we hauled off in handcuffs reporters that fabricate stories, or twist information and even falsely accuse citizens," Mr. Mayes wrote.

The B.C. MP later issued an apology after he was contacted by the Prime Minister's Office.

But seriously: let's not digress. Conservative MPs: so many sub-plots. Back to the main plot, the careering career of Mr Vellacott.

Nothing daunted, Mr Vellacott, no doubt still driven by divine revelation, has bounced back from his forced resignation on Wednesday to champion yet another cause -- the liberation of women.

In league with Liberal MP Paul Steckle (Huron-Bruce), Mr Vellacott yesterday organized a press conference to warn women that abortions are bad for their health. The two MPs brought along with them a breast-cancer surgeon and anti-abortion activist from New Jersey, Angela Lanfranchi,

who said there has been a 40-per-cent increase in the incidence of breast cancer in the last 30 years.

"It's the women of the Roe v. Wade generation that account for most of this increase. Dramatic lifestyle changes brought about by the sexual revolution and the women's liberation movement are largely responsible for the rampant breast cancer we see today."

Dr. Lanfranchi, who is also opposed to oral contraceptives and advises women instead to avoid sex on days that they are fertile, described what she calls a biological link between breast cancer and the early termination of a pregnancy.

Now, she doesn't quite seem to be saying that most women who develop breast cancer have had abortions, does she. Maybe because that isn't true? As she must know? There has been a rise in the incidence of breast cancer as of some other cancers, and "lifestyle" -- if that term is interpreted to mean everything from diet to environmental causes -- may indeed be a factor. But how seriously is one to take that vague wave in the direction of an entire generation? Political attitudes cause cancer? A doctor said that?

Well, yes, she did. And she said it knowing, as everyone should, that every learned society of ob-gyns and every cancer society in North America has discounted the only fake "scientific" study that ever attempted to claim a link between abortion and breast cancer.

But then that is what propagandists do. They just bull ahead, in defiance of evidence, facts, or human vulnerability. And why?

Well, in Mr Vellacott's case, it's because he is worried about women:

Mr. Vellacott said he and other like-minded MPs believe women are being kept in the dark about abortions and are being forced into them by the men in their lives.

"We are opposed to unwanted abortions that do happen in this country where women are coerced, pressured, harassed, badgered if you will, by a boyfriend, by a husband, by a doctor, an employer, friends, family circumstance," he said. When asked whether he would put forward a private member's bill banning abortion, Mr. Vellacott replied: "There are always options for members of Parliament to put forward good initiatives on a range of subjects."

Me, I also am opposed to the coercion, pressuring, harassment, or badgering of women (if you will) by just about anyone who seeks to limit their autonomy. That would include MPs and doctors who persist in disseminating information shown to be mistaken or distorted for propaganda purposes -- ie, lies.

Curiously enough, immediately after the press conference Mr Vellacott and Mr Steckle organized for Dr Lanfranchi in Ottawa on Thursday, an anti-abortion rally materialized on Parliament Hill. "Who, us?" said the honourable MPs.

You have to admire Mr Vellacott's resilience, though, don't you? I know that I do. To spring back from so many humiliations as quickly as he did this week and to reinsert his foot in his mouth so purposefully -- that shows promise, I think. I am so looking forward to whatever cause he decides to champion next.

Next week, in fact. Creation science? Surely that's not too much to ask. Send him ideas. The man is on a roll.

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One wonders if he'll soon be sharing an office with Garth Turner. Not for his views, mind you, but for his insistence in making them so, um, public at the wrong time.

So the Conservatives are worried about "activist judges" eh?

WTF, did they just now get hold of the GOP's 2002 talking points memo.

So the right-wing-ding nutters who form a majority of the Conservative/Reform/Alliance Party (CRAP) are beginning to slip Harper's muzzle and leash . Let'em rant and roar, given enough rope they will hang themselves before the next election!

OK, now I am starting to get really creeped out by this man as well as his party which appears to share so many of these views even though they are currently keeping quiet about that in the hopes that this fact will be forgotten by the general public. After all many of the CPC caucus including people like our Justice Minister and others like Stockwell Day have made similar comments about the rights of women regarding abortion being a bad thing, the idea that the Canadian courts are full of (L)liberal activists, and that only by following a Godly life (as in what God set down as opposed to the secular society we actually live in) can the world and this country become a true decent nation.

I do not mind people of faith in politics so long as they are able to remember that their oaths are to represent the Canadian people and to follow and enforce our laws and Constitution, not their personal religious dogma whatever it may be. This is one of my problems with the CPC and the CA before it, the religious right within it believes its first duty as elected officials is to place their religious duties above their secular ones in how they measure issues and in what issues must be dealt with first.

The only reason we have not seen a great deal of this so far in this government is because it is such a weak minority. After all the CPC and Harper himself issued a gag rule on his religious candidates preventing them from speaking out or even attending candidate meetings for the public in fear that someone would slip. They were also instructed to have no contact with the media either for the same reason. So now that they are a minority government trying to become a majority they know they must keep this stuff to a minimum if this is to happen.

This is one of the more disturbing aspects of this party. They know if their full agenda including this religious component was seen by the entire public that they could not get that majority, so they hide it and pretend that anyone raising this issue is delusional, is a political operative out to harm the CPC, and in general is nothing but empty fear mongering with no basis at all for it. So seeing these comments by Vellacott right after his attempts to lie about the Chief Justice of the Supreme Court of Canada again puts the lie to this. After all, if Vellacott was so far outside the norm within his party he surely would have been disciplined for the embarrassment he provided Harper. The fact that he was not is indicative of a significant percentage of that party's core base (both in caucus and in the public) would see this as a betrayal of their agenda by Harper and would cost him significant voter support if he were to do so. After all they are keeping that silence so as to let Harper get that majority so that then they can come out and start putting their agendas/issues in play. If they think he is betraying them he will not be able to keep his currently tight grip on them in place.

I also have to admit it is very creepy that Vellacott keeps invoking God and divinity to justify his conduct and to give him "moral authority" to speak out like this. It is also good evidence of just how easily one of Harper's committee chair picks allows his religious faith to determine his political actions even when those actions are clearly in violation of his sworn duties and responsibilities as both an MP AND as a member of the governing party. What I would wonder though if there is one like Vellacott within his choices are there others that so far have managed to keep from showing their colours as Vellacott did?

We need to keep a close eye on this man and those that agree with him in the CPC. The fact that this party places its most serious aspect, the religious right component in such a state of secrecy to hide it from the public cannot be allowed to succeed. If the Canadian people had full disclosure of this agenda instead of the stealth approach and still elected a CPC majority I would be saddened but I would accept it as legitimate. What the CPC is trying to do though is get in by stealth and once in majority then their religious agenda will come out into the public when it is too late to do anything about it for at least 4 to 5 years. It is this stealth approach that makes this agenda an illegitimate one if they do get elected without fully disclosing this agenda of theirs, it is also clearly the aspect that would most turn Canadians away from supporting the CPC, clearly enough to cost it a majority given the demographic makeup of our public. They also know that the overt religiosity of Day's in the 2000 election serious harmed their support in the general public which is yet another reason why they are staying stealthed this time, they know they cannot become a majority government if this agenda and the underlying beliefs of it (which include the activist courts, limiting abortion, and in general a duplication of the GOP social conservative agenda we have watched in the USA for the last several years) are known to Canadians.

So the CPC would rather use the "noble lie" of Leo Strauss to put their "elite" into power since only the elite according to Strauss is deserving of governing. Given that the Calgary school of which Harper is a clear product of is rooted in Leo Strauss's writings and political beliefs this is a serious problem. It also explains a great deal of the way this government is operating and the deceptiveness of it, as well as the clampdown on any information that might possibly interfere with the gaining of a majority even to the point of hiding when Cabinet meetings happen. After all the more you limit the information to work with the easier it is to lie/deceive without being caught at it, at least not before it is too late to prevent what the deception was in place to protect/enable. Worry people, this is not your parent's Conservative party, this is something else.

Actually Vellacott quoted the wrong SCC Judge, the remarks were actually made by Rosie Abella, whose incompetence on the bench is overshadowed only by her lack of experience in practicing law...

The CPC aren't the only people dismayed by the performance of "activist" judges. SCC decisions like Duarte, Stinchecombe, Askov and Wong have virtually overturned 400 years of British jurisprudence and created the mess that we have in Canadian criminal "justice" today.

The best demonstration of the incompetence of the SCC occurred during the Migaard enquiry. The SCC panel, hearing evidence from live witnesses for the first time, became suspicious of the testimony from one witness, and ordered that he be subject of a polygraph test. Making the members of the highest court in the law apparently the ONLY people in the criminal justice system who were unaware that polygraph tests are not admissable in court in Canada. An obviously-embarrassed panel harumphed about the matter at the opening of the next session.

A pitifiul performance...

Um, Bruce. Would you like to give us some references for your first two paragraphs?

I have read parts of the McLachlin text that Mr Vellacott claimed to be referring to, and the one concession I would make to Mr Vellacott is that he seemed to know which text he was misreading.

You, however, will have to convince me that you have correctly identified whatever it is that you are misreading.

Bruce:

If Vellacott was quoting the wrong judge then why, oh why did he pass out Chief Justice McLachlin's New Zealand speech the day after he made these comments in the first place? Your argument might have had some plausibility *IF* he had say done this on the same day and then corrected himself, but throughout this affair he never did. So in other words you are assuming facts not in evidence and without any basis to be doing so from. You are attempting to continue a smear instead of simply acknowledging that Vellacott lied about what a Chief Justice said, never acknowledged he lied, and never was able to back up his comments that he said she said not him.

It is so nice to see CPC apologists like yourself being as constrained by reality/facts as your southern brethren in the GOP(sarcasm). I guess the founding ideas this country was founded on are alien to you, you know, peace, order, and good government? Good government requires among other things accountability, honesty, and the willingness to acknowledge errors/mistakes made since human beings are not inherently infallible despite the way some CPCers try to act. Vellacott lied about what she said, kept lying once he was challenged to show exactly where she made these comments, and never apologized for his lying about what she said when he resigned, nor did the CPC government issue any apology to the Chief Justice either.

No, it is more important to apologists like yourself to deflect from all of this and continue in your imaginary powerful opponents like the Liberal controlled media, the Liberal controlled courts, and the Liberal controlled Senate, of which only the last has any connection to reality, and even there the degree of power being attributed to the Senate by Harper (as in challenging them to defeat his budget despite the reality that this cannot happen and has never happened in our federal history) exceeds reality significantly.

The remarks were actually made by Rosie Abella,

Substantiate this, retract, or admit you're lying.

As a native Quebecer I'll be interested to see how the right wing religious agenda now becoming evident plays out with our fellow Canadiens. Having overthrown 300 years of rigid social control by the Roman Catholic Church, Quebecers today are strong on seperation of church and state. They are as progressive as any Canadians on issues like womens' rights and abortion. They can also tell us from personal lived experience what life is like in a quasi-theocracy. Je me souviens!
BTW - ain't nothin' wrong with ministers of religion serving in government per se: both J.S. Woodsworth (Methodist) and T.C. Douglas (Baptist) were ordained ministers. I've lost count of how many ministers of the United Church haved served. I doubt 10% of canucks know the currently longest-serving member in the Canadian House of Commons is entitled to be styled 'Reverend'!

skdadl:

Par 1:

I haven't yet been successful in locating the Abella quote; I had it a couple of days ago and misplaced it.

Be that as it may, many of us take objection to the Chief Justices remarks as follows, and I believe that they were the focus of Vellacott's comment:

“The task of the judge, confronted with conflict between a constitutional principle of the highest order on the one hand, and an ordinary law or executive act on the other, is to interpret and apply the law as a whole - including unwritten constitutional principles.”

Unwritten constitutional principals. Heh.

Last time I looked, it was job of the SCC to interpret laws passed by Parliament, INCLUDING the act that gave rise to our constitution. Traditionally, the SCC has looked beyond black letter law to interpret the intent of the framers of the law.

Example, same sex rights. And before you set your hair on fire, I have no objection to ALL citizens having identical rights, it is the process employed by SCC that I object to.

In 1981, the interpretation of the term "sex" in the proposed constitution was the subject of hot debate. Parliament, and the then-LIberal government, clearly stated that the term "sex" related to gender, not sexual orientation when the bill was debated and passed. See excerpt from page 1 of the G&M, quoting then Justice Minister Chretien:

"01/13/1981
The Globe and Mail
P1


NON-DISCRIMINATION RIGHTS

Non-discrimination rights in the charter are now to be given the new heading of equality rights and, in deference to the many women's groups in particular, these rights will be specifically made to apply to equality under the law itself
and not just in procedures before the courts.

The Government has not agreed to change the wording from ''everyone" to ''every person" and has not expanded non-discrimination rights to the handicapped or to sexual orientation. ''These should be left to be protected by ordinary human rights legislation where they can be defined, the qualifications spelled out and the measures for protective action specified by legislatures," Mr. Chretien said."

What Chretien was getting at was that the supremacy of elected members of the legislature must take precedence, because they and they alone are accountable to the citizens. THAT's our tradition, scotian...

Par 2:

R v. Duarte (SCC - 1990. Ruling that police cannot record their own conversations with a criminal, meaning that everyone in Canada EXCEPT the police can record conversations on the basis of one-party consent. Then they throw out the case under Sec 24 of the Charter, dismissing the ancient legal tradition of the "best evidence rule".

R. v. Stinchcombe (SCC 1990) SCC unilaterally ruling that every scrap of information held by the police must be disclosed to the defence, even if it is not relevant to prosection. THis has been the most damaging case to police investigations, and has reulted in investigation now requiring 2 to 4 times more resources for a given case.

R v. Askov (SCC - 1990) Court ruled that two years to come to trial on an organized crime extortion case was too long, throws out the case and suggest six months is the standard in most cases. This results in approx. 85,000 pending prosecutions being thrown out of lower courts during the first year (including 52,000 in Ontario). When asked, 2 months later, about the turmoil the ruling had created, then SCC Justice Peter Corey said that they didn't realize that this would be the result of their ruling.

R. v. Wong (SCC 1990) extension of Duarte, this time involving video.

Scotian:

I'm not least bit offended in your gratutious insults or pre-conceived misconceptions about me, my politics or ideology. Personally, I prefer to engage in adult discussions using intelligence and reason, not juvenile tactics placing ideology over intelligence. Apparently, you have a different approach.

Oh and Ti-Guy, grow up. I'll find the reference...


Here's the link to the information for Rosalie Abella:

http://www.smalldeadanimals.com/archives/003962.html

Not surprising that SDA is defending Vellacott's stance.....

Oh and Ti-Guy, grow up. I'll find the reference...

Excellent. That's all I asked...well, apart from the other two things, which, in response to "the remarks were actually made by Rosie Abella" is a very grown up request.

Unwritten constitutional principals. Heh.

The Chief Justice can only have been referring to unwritten principals like our long and honourable history of British common law and even higher philosophical principals like Natural Justice.
Perhaps if you had any concept of these principals you could understand her comments.
My hair's not on fire, Bruce, but I am a flamin' faggot, is that good enough?

Here's the link to the information for Rosalie Abella:

http://www.smalldeadanimals.com/archives/003962.html

What's the link from SDA?

From the SDA link, which reproduces a 1976 Globe and Mail article:

As a Family Court judge, she does make those decisions. And while a mixed bag of provincial and federal family law and divorce legislation delineates her authority on the bench, sometimes she goes by intuition.

In a sense, Her Honor Judge Rosalie Silberman Abella says it's like playing God. Only there's no one to tell you if you're right or wrong.


You're trying to relate that to Vellacott's remarks!? That's hilarious. What Abella is obviously attempting to relate is that as a judge her decisions have a finality that simply wasn't the case when she was a lawyer.

This is an even bigger stretch than Vellacott's original remarks.

Oh, dear...I missed this. Bruce, it's "RosaLIE Abella."

n a sense, Her Honor Judge Rosalie Silberman Abella says it's like playing God.

I still don't get it. Did Rosalie Abella actually make the remarks "all of a sudden there's some mystical kind of power that comes over them . . . and they take on almost these godlike powers." as Bruce asserted?

macadavey, your sexuality is entirely your affair, not mine.

The cases that I referred to in my post are instances where common law with a long history was THROWN OUT by the SCC, using sections of the Charter in a manner clearly not intended by the drafters of the law...that's my point!

Having been involved with the law for 35 years, I'm more than a little familiar with both black letter law and judge-made law (precedence). The latter, however, has to be based on something other than a judge's personal view of what should be. That's why they call it judging.

I have watched with extreme frustration nine unelected and unaccountable ermine and red velvet-clad former flower children pull legal interpretations out of thin air. It's NOT part of their job description.

As evidenced

You're wrong, but there is something to be said for consistency

I don't quite understand this.

T-Guy:

Don't know what happened to the above post, but according to
this

she prefers to be called "Rosie"

Duly, noted, but irrelevant. Now, my original request, Bruce. How are we doing on that?

Bruce, I think I see your problem.

Last time I looked, it was job of the SCC to interpret laws passed by Parliament, INCLUDING the act that gave rise to our constitution. Traditionally, the SCC has looked beyond black letter law to interpret the intent of the framers of the law.

Now, y'see, there's your problem. You have yoked together there, quite illogically, two quite separate levels of thought. At least in classical democratic theory, they are two quite separate levels of thought. "Laws passed by Parliament" and basic democratic principles -- as embodied in the Constitution and the Charter -- are two quite different levels of thought, yes? You do agree? If not, that's a shame, but we can talk further about what it takes to build a democracy, if you like.

About your second sentence: "the intent of the framers" ... Gosh. Where did you get that expression from? It sounds so particular to me, and yet the particularity just doesn't seem Canadian somehow. It also doesn't sound like classical democratic theory. But it rings a bell, a faint bell ...

If I may be so bold as to interject a note of distress among the comments to my own post? OK?

Why has not a single commentator here reacted to Vellacott's openly cynical exploitation of women's fears through the manipulative use of pseudo-science that has been discredited, loudly discredited, for over a decade by every respectable medical body concerned?

This is really quite amusing...the G&M editorial posted by skdadl ran quotes from different parts of the CBC interview out of sequence...to puff the piece perhaps? Actual text (IN sequence, by the way) of the CBC story below:

[...]"Vellacott stepped on judicial toes in an interview Saturday with Christina Lawand of CBC News in Ottawa.

"I don't think it is the role of the judge, whether left or right or conservative or whatever stripe [he] happens to be, to actually figure to play the position of God," the Tory MP for Saskatoon-Wanuskewin told Lawand.

Vellacott, a former pastor who claims a doctoral degree from Trinity International University in Chicago, then singled out Beverley McLachlin, the chief justice of Canada.

He claimed McLachlin "herself said actually when they step into this role that suddenly there's some kind of mystical power that comes over them, which everything that they've ever decreed is not to be questioned.

"They actually have the discernment and almost prophetic ability to plumb and know the mind of the public." [...]

The cases that I referred to in my post are instances where common law with a long history was THROWN OUT by the SCC, using sections of the Charter in a manner clearly not intended by the drafters of the law...that's my point!

Back that up or retract it. But if we are to look to the "drafters of the law" as a guide of how to interpret things like, oh, the BNA Act, then the federal government would be considerably more powerful relative to the provinces.

Why has not a single commentator here reacted to Vellacott's openly cynical exploitation of women's fears through the manipulative use of pseudo-science that has been discredited, loudly discredited, for over a decade by every respectable medical body concerned?

Personally, I've run out of energy for it. Pseudo-science abounds and very few people in the mainstream media are willing to tell us how "pseudo" it is, and the rest of us don't have the time to engage the endless discussions prevaricators will undoubtedly drag us into when an issue based in pseudo-science comes up. But at the heart of every meme created by pseudo-science is that tiny little lie that needs to be exposed.

I've got time and energy (just barely) for that.

Now Bruce...about Rosalie Abella's remarks...

This is really quite amusing...

No it isn't, Bruce. Savaging other people with bad-faith arguments is sadistic and cruel.

Now, my original request...How are you doing with that?

skdadl:

You really need to work a little harder on educating yourself about the law and its application.

To start you off, do a Google search on the phrase "intent of the framers" and you will find many references to USSC and SCC decisions. Or, go here: http://www.lexum.umontreal.ca/csc-scc/en/pub/2005/vol2/html/2005scr2_0669.html and you will find a SCC judgment referring many times to what the"farmers" of the legislation intended. Justice McLachlin was on the panel in that one.

Judges interpreting the law by considering the intent of those who passed the law is what it is all about, don't you get it yet?

Josh...the BNA Act is history. The courts are tasked with interpreting the Charter of Rights and Freedoms, which was created by the Constitution Act, WHICH WAS AN ACT OF PARLIAMENT.

When they interpret the Charter, part of their job, in cases of perceived ambiguity, is to examine what the people who passed the law that created the Charter intended when they created the Charter. It didn't come down some mountain side on tablets...it was written and passed by Parliament.

Read Hansard. Look at the clause by clause review of the bill creating the Constitution Act in the Commons & Senate comittees. Check my post above quoting Chretien on one small part of the bill...he was the man shepherding the bill through Parliament.

Read the four cases I cited...There are much more than those, wherein the SCC arbitrarily discarded long-standing principles of our English common law tradition by improperly interpreting the Charter in a manner that was neither intended or anticipated when the Charter was created.

Brucie...c'mon. My request...Hellooo!

I'm trying to determine you're willingness to debate in good faith. Since I'm forced to conclude that you lied, well...happy trails, Bruce.

Ti-guy:

Conclude away....I am not interested. If you cannot read and interpret what I have said, I just don't have the time, patience or enough one-syllable words to explain it...

You're not interested in the fact that you lied? How odd.

Oh, well. As the Chinese say may you live in interesting times, Bruce. Just don't get overcome too often by the woefully pedestrian and vulgar debate that people like me inflict on you.

Bad for the health, and all that.

Josh...the BNA Act is history. The courts are tasked with interpreting the Charter of Rights and Freedoms, which was created by the Constitution Act, WHICH WAS AN ACT OF PARLIAMENT.

The BNA Act is officially the "Constitution Act, 1867" while the Charter is part of the "Constitution Act, 1982". Both are constitutional documents which cannot be amended by Parliament unilaterally. To say the former is "history" seems odd given your stated affinity for our Common Law tradition.

When they interpret the Charter, part of their job, in cases of perceived ambiguity, is to examine what the people who passed the law that created the Charter intended when they created the Charter. It didn't come down some mountain side on tablets...it was written and passed by Parliament.

That's a contested point in law; it is not necessarily the case that the intent of the authors - assuming that can even be reliably inferred - is relevant to a particular judgement, which, while it must hold to the letter of the law, should not ignore the spirit of the law.

Read the four cases I cited...There are much more than those, wherein the SCC arbitrarily discarded long-standing principles of our English common law tradition by improperly interpreting the Charter in a manner that was neither intended or anticipated when the Charter was created.

The Charter by its very nature has codified and given more force to rights that were at something closer to customary status under common law. Indeed, it's brought us closer to American jurisprudence.

"The BNA Act is officially the "Constitution Act, 1867."

Correct. But it was an act of the BRITISH parliament, not that of Canada. The Act itself stayed in London, England until it was brought home to Canada, or patriated, by the Constitution Act of 1982.

"To say the former is "history"..."

I was responding to what appeared to be your assertion of that Act as being in force in the present day...if I erred in interpreting your post, my apologies.

"The Charter by its very nature has codified and given more force to rights that were at something closer to customary status under common law. Indeed, it's brought us closer to American jurisprudence."

Agreed. Had the SCC adhered to the stated intent of the legislators instead of making it up as they went along and ruling based on personal rather than legal tenets, we would not be in the current state. The problem, at least in my view, was not the Charter, it was the interpretation by some courts, using the legal function to promote their brand of social engineering initiatives.

Correct. But it was an act of the BRITISH parliament, not that of Canada. The Act itself stayed in London, England until it was brought home to Canada, or patriated, by the Constitution Act of 1982.

Yes, and...?

I was responding to what appeared to be your assertion of that Act as being in force in the present day...if I erred in interpreting your post, my apologies.

The Constitution Act, 1867 is most certainly still in force; otherwise there would be no constitutional law governing the distribution of powers between the provinces and the federal government.

Yes it is in force, I should have framed my comment in more precise terms, but, to use a construction analogy, it is the "footing" upon which the "foundation" (the '82 Act) is based. The 1982 act amended it considerably and eliminated many of the sections. The "active" act, to use a non-legal term, is the '82 Act. Presumably it is the latter that would be subject to any future amendments.

And hey, I didn't brace about the fact that you used the term BNA Act in your original post. :)

The BNA Act is just as active. The only real difference is that current interpretations of it are not at all based on much that the Fathers of Confederation intended, but rather the rulings of the Judicial Committee of the (British) Privy Council and Supreme Court since 1867.

So, again, if we want to go back to the "original intent", by all means, but this is in fact inconsistent with the use of precedent in the Common Law tradition.

Bruce writes:
What Chretien was getting at was that the supremacy of elected members of the legislature must take precedence, because they and they alone are accountable to the citizens. THAT's our tradition, scotian...

Actually, Chretien, in response to a specific question on gay rights during the debate on the Charter, said That will be for the court to decide. It will be open-ended."

The Charter was designed to be open-ended. "Original intent" has no place in Charter jurisprudence.

Bruce writes:
The 1982 act amended it considerably and eliminated many of the sections.

Amended, yes. "Eliminated many of the sections?" That's not very accurate.

What Chretien was getting at was that the supremacy of elected members of the legislature must take precedence, because they and they alone are accountable to the citizens.

Did I miss the part where Section 33 was stripped out and Parliament was left unable to override judicial interpretation of constitutional law?

Thickslab:

In the interest of brevity, below is a snapshot of a brief portion of the 1982 Constitution Act, addressing the 1867 Constitution Act (formerly BNA Act). Go to Statutes of Canada and see for yourself:

(2) Section 20 is repealed.
(3) Class 1 of section 91 is repealed.
(4) Class 1 of section 92 is repealed.
2. An Act to amend and continue the Act 32-33 Victoria chapter 3; and to establish and provide for the Government of the Province of Manitoba, 1870, 33 Vict., c. 3 (Can.) (1) The long title is repealed and the following substituted therefor: "Manitoba Act, 1870." Manitoba Act, 1870
(2) Section 20 is repealed.

Thickslab posted:

"Actually, Chretien, in response to a specific question on gay rights during the debate on the Charter, said That will be for the court to decide. It will be open-ended."


I've tried and I cannot find that quote; unless I see it in Hansard, I cannot agree that it is legitimate.

What I DO have access to is extensive databases containing media and litigation references. You have clearly seen what I posted above with respect to the quoted comments made by Chretien which are are diametrically opposed to what was stated by the author you quoted. Unfortunately, he failed to source his comment.

Given that Chretien's comments were the main article on page one of the G&M that day, I have to believe his staff would have noticed the piece. I checked the media database, and found NO retraction to the original G&M piece.

I also, anecdotally, recall the fury of the debate in '81...to my recollection, the issue was clear..."sex" was meant to be based on gender, not orientation.

Give me a reference in Hansard to what you have submitted, I would be happy to peruse it.

Bruce, since I've proved you're a liar, you have to provide links.

Josh:

I hate to belabour the point, but the BNA Act is gone, see the following schedules of the "82 Constitution Act:

1. British North America Act, 1867, 30-31 Vict., c. 3 (U.K.) (1) Section 1 is repealed and the following substituted therefor:

"1. This Act may be cited as the Constitution Act, 1867."

Ti-Guy:

Last response to you:

I never argue with an idiot. They drag you down to their level, and beat you with their experience. Besides, they have home court advantage.

Go read the funnies or something. We're having an adult conversation here.

My stars. How uncivil.

Bruce: Click the link in my post, it's all there. The reference is in the middle column of page 18 in the PDF: On January 16, 1981, before a Special Joint Committee on the Constitution that was studying the Charter, Chretien made that statement.

Bruce writes:
"You have clearly seen what I posted above with respect to the quoted comments made by Chretien"

Let me apply your criteria: Give me a Hansard reference, not partial snippet from a Globe and Mail story.

Bruce writes:
unless I see it in Hansard, I cannot agree that it is legitimate.

You have the precise date and the name of the committee and you can even locate it because you know it was the last question from Robinson. It should be very easy if you have access to look up the quote to ensure that it is legitimate.

I do not have the ability to easily look up transcripts of committees from 1981, since Hansard is not online before 1994. I do not have the time to go to a library to look it up for you, and since you do not follow the standard you apply to me ("Hansard only, please") I am not particularly inclined to do your homework for you. It's there. Find it yourself.

Bruce writes:
Go to Statutes of Canada and see for yourself:

Bruce, I did check the text of the Constitution Act 1982. The Schedule to the Constitution Act 1982, "Modernization of the Constitution," lists only four sections as being repealed out of 147 in the Constitution Act 1867: section 1, which is repealed and replaced only to rename the BNA Act as the Constitution Act 1867, and the three others you list - repeal of section 20, repeal class 1 of section 91 and repeal of class 1 of section 92. The 29 other modernizations in that schedule do not apply to the Constitution Act 1867 and many of them are simply renamings.

You also quote item 2 in that schedule, which affects the Manitoba Act, not the Constitution At 1867, therefore it is not relevant to your point.

The sections that you list that were fully or partially repealed by the Constitution Act 1982 had their provisions replaced by altered provisions in said Constitution Act 1982.

Your contention was that "The 1982 act amended it considerably and eliminated many of the sections." Amend is correct, but "eliminated many of the sections" is false. Repealing one section and two line-items in two other sections out of 147 is not eliminating "many of the sections."

Why has not a single commentator here reacted to Vellacott's openly cynical exploitation of women's fears through the manipulative use of pseudo-science that has been discredited, loudly discredited, for over a decade by every respectable medical body concerned?

Atrios calls them zombie lies -- no matter how often they're debunked, they just won't die. I expect you'll see this one again. Harper has learned patience (I don't think it comes to him naturally but he's learned it) but this part of his constituency doesn't necessarily share it. They've been faithful to the party and they're anxious for payback.

Josh:

I hate to belabour the point, but the BNA Act is gone, see the following schedules of the "82 Constitution Act:

1. British North America Act, 1867, 30-31 Vict., c. 3 (U.K.) (1) Section 1 is repealed and the following substituted therefor:

"1. This Act may be cited as the Constitution Act, 1867."

Obviously. But I still call it the BNA Act since "Constitution Act, 1867" is considerably more cumbersome. No, that's no longer the *official* name, but I assume that most people know it by the familiar name. Either way, there's nothing inactive about it.

I always laugh at the totally fraudulent word, "activist judges."

I can't remember the exact statistics, but the trend of the Supreme Court's decisions was analyzed several months ago, showing that in the vast, vast, vast majority of their decisions (I believe it was something like 93% of their decisions), they RETAIN THE STATUS QUO. Keep things exactly as they are.

That's sure "activist," huh?

What the Cons dislike is the decisions THEY DON'T AGREE WITH, period.

Funny now I never for a second heard them shrieking about "activist judges" when the Supremes decided last year that you can still spank your kids. Oh, but I forgot -- the Cons LIKED that one.


"The courts are tasked with interpreting the Charter of Rights and Freedoms, which was created by the Constitution Act, WHICH WAS AN ACT OF PARLIAMENT.

When they interpret the Charter, part of their job, in cases of perceived ambiguity, is to examine what the people who passed the law that created the Charter intended when they created the Charter."

Ok Bruce, I call bullshit. You are not a lawyer or even remotely a legal professional if you believe that load of crap. If you are lawyer, turn in your licence or stick to chasing ambulances because you do not appear to know even the basics about the Constitution.

Above and beyond all the rebuttal material that Josh and thickslab have laid out, the job of the SCC is to rule on points of law in interpreting those laws in light of the Charter, common law, constitutional convention (gosh unwritten even), taking into account the intents of the legislature that passed the law in question, not the Constitution. They judge based on the WHOLE constituion, not just the Charter - the vast majority of Constitutional case law, even after the Charter coming into effect, is dealing with Section 91 and 92 separation of powers.

In Canada, our SCC has never to take into account the "intent of the framers". That is an American element of jurisprudence and not one of the English common law system.

I mean, claiming that the BNA no longer is in effect and then quoting the section of the Constituiton act that simply changes the name? You don't have a clue.

How's your recollection on the fact that section 15 (which is what you are referring to with the term "sex") is purposfully written to be open ended, and that the ennumerated list in that section is not, nor was ever meant to be "exhaustive" - I mean that was the "intent of the framers", just ask them (or go to Section 15 and read Mark Francis' great post on the subject. Or this one, talking to one of the framers).

I learned Canadian Constitutiional Law from Jim Mackenzie (and still have all my books by Peter Hogg) and haven't done much with it for 15 years, but even I can see you complete ignorance of the law in this regard.

Mike:

I have drafted some of the laws in Canada, concerning criminal matters dealing with organized crime and money laundering...

A reminder...school does not necessarily equate to the real world..


Look up...that's the sun, not a fluorescent light in a university classroom..

Get it?

And do yourself a favour and visit a courtroom once in a while in order that you can get a better idea of what exactly is going on...email me, I'll arrange a tour...

Ah, no response to my points, Bruce. You're full of it.

Mike said: "In Canada, our SCC has never to take into account the "intent of the framers". That is an American element of jurisprudence and not one of the English common law system."

Let me repeat my post above:

"To start you off, do a Google search on the phrase "intent of the framers" and you will find many references to USSC and SCC decisions. Or, go here: http://www.lexum.umontreal.ca/csc-scc/en/pub/2005/vol2/html/2005scr2_0669.html and you will find a SCC judgment referring many times to what the"farmers" of the legislation intended. Justice McLachlin was on the panel in that one."

I don't know how often, if anytime, you have been in a Canadian courtroom. If you made the above statement in a serious manner, I have to conclude the answer to the "attendance" question is zero. As for me, I have been in court in Canada on several thousand occasions.

Don't take my word for it...do the google search as I advised. If you have a lexis nexis or quicklaw account, do it there. The phrase, and the intent, is an integral part of our jurisprudence. If you have EVER been in court in Canada, you would know that.

you will find a SCC judgment referring many times to what the"farmers" of the legislation intended.

The intent of the framers of the legislation, *not* the intent of the framers of the Constitution.

Care to respond to any of my points, Bruce? Or are you just going to hide behind your anonymous posts claiming to be someone who hasa "been in court ... on several thousand occasions" while demonstrating a fundamental misunderstanding of how this country's Constitution works?

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