tag:blogger.com,1999:blog-14632740.post5724000600558935556..comments2023-12-08T08:34:54.615-08:00Comments on Posthegemony: charterJonhttp://www.blogger.com/profile/14637452970276655064noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-14632740.post-8981643241827787392011-10-24T14:49:03.297-07:002011-10-24T14:49:03.297-07:00The material implications of the Charter have been...The material implications of the Charter have been substantive. Specifically 15.2:<br /><br /><br /><br /><span> (2)</span> 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.<br /><br /><br />This section-and the mechanism it presents for minority groups *not* named in the original Charter to pursue justice--has transformed my life as a gay man. Since discrimination on the basis of sexual orientation was "read into" the Charter I have been able to:<br /><br />Seek redress for unfair immigration policy (partner sponsorship)--and won.<br />Add a partner to my employee benefits.<br />To name as my next of kin for all legal purposes to be my male partner.<br />Marry my partner<br /><br />Any knowledgeable queer Canadian knows the main driver that's pushed our human rights agenda forward has been the Charter. So it's been an effective--transformative--document for me.John Egannoreply@blogger.comtag:blogger.com,1999:blog-14632740.post-46127418272504104322011-09-12T12:46:57.966-07:002011-09-12T12:46:57.966-07:00Yes, of course they added loopholes so that the Ch...Yes, of course they added loopholes so that the Charter could and would be accepted. But what's the point of rights that are not inalienable and self-evident? Indeed, are they still rights at all? What makes them any different from any other piece of legislation?<br /><br />Which may indeed be democratic. After all, the whole point of ordinary legistlation is that it can be repealed at any moment by our elected representatives. Bills of Rights are generally much more resistant to democratic change--some much more so than others.<br /><br />So if you're saying that Bills and Charters of Rights are inherently undemocratic, I'd be hard put to disagree with you. Indeed, much liberal political theory concerns the trade-off between democracy and rights. As always, this is an issue that the Canadians fudge.posthegemonynoreply@blogger.comtag:blogger.com,1999:blog-14632740.post-12836700751109844372011-09-12T12:39:32.315-07:002011-09-12T12:39:32.315-07:00The Nothwithsanding clause was added to get approv...The Nothwithsanding clause was added to get approval from all provinces, particularly Quebec, on the Charter. Its purpose is to prevent too much a shift in political power toward the appointed (justices) and away from the elected. Wouldn't you say that this is a good thing for democracy? And of course, in practice, its only *significant* employment to-date has been around French-only signage in Quebec (there's an interesting side story here about the missing apostrophe in Tim Hortons). <br /><br />You mention that Canada's Charter came "late to the game." Note that the Canadian Bill of Rights (1960) preceded the Charter. 1960 is still late to the game perhaps.... But not as late as 1982.<br /><br />Also, have you seen this re: implied rights in Canada? http://en.wikipedia.org/wiki/Implied_Bill_of_Rights<br />Quite interesting!Fionanoreply@blogger.comtag:blogger.com,1999:blog-14632740.post-43030640656893476712011-09-12T09:42:17.614-07:002011-09-12T09:42:17.614-07:00Thanks for this, Stephen. I guess what you're...Thanks for this, Stephen. I guess what you're doing is putting a positive spin on what I was saying...<br /><br />The question is then whether, if a Bill of Rights is not the result of popular struggle (or even when it is), is not the declaration superfluous?<br /><br />I mean, if these rights and freedoms are already "a part of the fabric of life," then to what extent are they "entrench[ed]" by means of the Charter?<br /><br />And where they are not fully accepted (I'm thinking of Quebec, of course), then the Charter is simply ignored.<br /><br />So if the Charter is not useless, it's unnecessary. Except in so far as it confirms Canadians self-image as residents of a country characterized by "<span>peace, order and good government."</span><br /><br />...until, that is, the next time a government invokes the War Measures act, prorogues parliament, invokes either the Limitations or the Notwithstanding clause, or otherwise finds a way to sidestep the Charter.posthegemonynoreply@blogger.comtag:blogger.com,1999:blog-14632740.post-59803291578076893292011-09-12T04:05:23.590-07:002011-09-12T04:05:23.590-07:00I think it's worth noting that the Charter of ...I think it's worth noting that the Charter of Rights was the result, not of some popular struggle, but of an ongoing attempt to repatriate Canada's constitution.<br /> <br /> It is designed, therefore, not to enshrine some new set of rights and freedoms, but rather to entrench those that had already become a part of the fabric of Canadian life, in the context in which they were currently practised.<br /> <br /> Though there was in fact a flurry of judicial activism after the passing of the Charter, activism was for the most part unnecessary. The question "what did the framers mean?" was mostly replaced by the question "what is current Canadian practice?" It is a charter of rights exercised not by some force of will, but through the consensus of a community.<br /> <br /> Yes, the Canadian democracy continues to have flaws. But the courts have recognized that First Nations do have rights, and these have steadily progressed through the courts. And multiculturalism, though it could be more flavourful, is a fact in Canada, and need not be enforced by some act of revolution.<br /> <br /> Not all rights documents need reflect the revolutionary fervour of a nation in turmoil. They can, by contrast, express the not-so-uniquely Canadian desire for peace, order and good government.Stephen Downesnoreply@blogger.com