Liberals propose ammendment to end Federal use of Notwithstanding Clause

January 10, 2006 7:43 AM

Last night, in the middle of the leaders debate (transcript, realmedia) Paul Martin announced a plan to amend the Canadian Constitution to remove Parliament's ability to invoke the Notwithstanding Clause.<more inside>
posted by Chuckles (63 comments total)

It seems obvious that this plan is in responce to contraversial rights issues, like gay marriage and swingers clubs, that we have discussed here on MetaFilter in the past:

Canada's View on Social Issues is Opening Rifts With the U.S.
It's like America, only with freedom - Supreme Court replies to proposed marriage bill
If we do not step forward we step back - Paul Martin announces Gay marriage bill, Bill C-38
Go North Young Man - C-38 passes
Swingers clubs ruled legal in Canada - recent Supreme Court decision

Constitutional ammendments cause lots of problems - Meech Lake, Charlottetown Accord...
posted by Chuckles at 7:54 AM on January 10, 2006

I have a feeling a double post is coming... There was an unexpected delay in the post showing up.

Personally, the idea of a constitutional ammendment is ugly, and I tend to like the idea of the notwithstanding clause. On the other hand, the provinces will still have it - in a way that is quite eligant.
posted by Chuckles at 7:56 AM on January 10, 2006

Martin is an embarassment.
posted by 327.ca at 8:00 AM on January 10, 2006

I'm not sure "announced" is the right word. It was closer to an aside (not quite fully an aside), as though it were some minor thing he were proposing. I kind of half wondered if it was some crazy-ass idea he'd come up with on the spot and figured he could just throw out there since there was no chance it would actually happen.

Similarly, I'm not sure it's in defence of the gay marriage issue. While I don't trust Stephen Harper to abstain from attempting to use the nothwithstanding clause to ban gay marriage, I think even if he tried, it wouldn't work. THere's no way he could get a 2/3 vote. And there's no reason to risk it since it would inevitably be an issue in the next election even if it did pass, since it would have to come up for renewal.

As for swingers, that's not a charter issue. I can't think of anything in the charter that would protect swingers clubs.

But yes, generally I agree that trying to amend the constitution at this point is a dumb idea since it will no doubt result in a bunch of "while we're in there, let's also..." and there will be no agreement on the "also".
posted by duck at 8:01 AM on January 10, 2006

Oh, and if they remove it, they should remove it altogether. The provinces scare me a hell of a lot more than the federal government. THough I suppose that could change if the new reform party ever gets itself into power.
posted by duck at 8:02 AM on January 10, 2006

That would seem to give your provinces a very high degree of autonomy, when push comes to shove. Is there an equivalent or analog to the American "interstate commerce clause"? (I forget the C&V, but basically a line in the Constitution give the Fed authority to regulate matters affecting "interstate commerce"; that's since been used to mandate everything from standards in highway construction to narcotis laws and even to drive education reform.)
posted by lodurr at 8:02 AM on January 10, 2006

Duck - in general, I also find provinces a little more scary than the feds.

However, I must say that for once in this country's history, BC has one of the most stable provincial governments. The "BCLibs" keep their mouths shut when its not their jurisdiction. To this day, I really couldn't tell you what their "official" position is on it - nor does it matter. (Unlike Ralph Kline and Bernard Lord who shot off their mouths.)

Anyway, I agree with Martin on this - and I hope it reminds people about what Conservatives really stand for and who they are. Despite how "Prime Ministerial" plastic Harper pretends to be, he's still a wolf in sheeps clothing - a Barbarian at the Gate if you will.
posted by SSinVan at 8:24 AM on January 10, 2006

Oh, come on... if the FLQ cropped up again tomorrow, there'd be soldiers in the streets of Quebec whether it was legal or not - notwithstanding the notwithstanding clause. If the clause was removed, the government would (IMO) still limit freedom of assembly if there was a major crisis. Why not just amend it to prevent its use with equality rights?

Perhaps Martin is just feeling desparate and dredging up all sorts of Canadian political bogeymen to try to get some traction.
posted by GuyZero at 8:25 AM on January 10, 2006

I hate the notwithstanding clause, and want it totally gone. We have human rights... unless they're inconvenient to have, and then you can just fogeddaboutit!
posted by mek at 8:26 AM on January 10, 2006

The provinces scare me a hell of a lot more than the federal government.

Well, only 3 provinces scare me: Ontario, Quebec, and Alberta. Canada would be an even more peachy place without the Shirley, Danny and Keith of the band.
posted by travosaurus at 8:30 AM on January 10, 2006

Martin proposed only to ban its use with regard to "individual rights"
posted by SSinVan at 8:34 AM on January 10, 2006

The provinces scare me a hell of a lot more than the federal government.

Well, only 3 provinces scare me: Ontario, Quebec, and Alberta

Hear, hear. As a NWTian living in Alberta, I am just now realizing how scary this place and it's politics are. Although I love Quebec, am fluent in French and think that both are integral to the Canada I love, I still can't help but be discomfited whenever I hear someone from the PQ speak.
posted by arcticwoman at 8:38 AM on January 10, 2006

This has got to be the worst policy of the campaign - even worse than the "handgun ban" that didn't ban handguns, only proposed spending a hundred million dollars to buy back guns from collectors. Martin's gone from the stupid to the patently unconstitutional. This is such cheap politics.

The Liberals have spent years building up the myth of the Charter and demonizing the notwithstanding clause, as if the courts are always right. Now they propose to surrender the last bulwark of democracy against the rule of the courts (a bulwark that has gone almost unused, I grant, but there's no reason that shouldn't change). This is a moronic policy, and unhealthy for Canadian democracy.
posted by Dasein at 8:39 AM on January 10, 2006

Now they propose to surrender the last bulwark of democracy against the rule of the courts (a bulwark that has gone almost unused, I grant, but there's no reason that shouldn't change). This is a moronic policy, and unhealthy for Canadian democracy.
posted by Dasein at 8:39 AM PST on January 10 [!]

So you think the government should ignore individual rights? Which of these rights in particular do you find distasteful?
posted by mek at 8:42 AM on January 10, 2006

Well, the Notwithstanding Clause only has limited scope as it it (from the notwithstanding link):

S. 33 may be applied to fundamental freedoms (s. 2), (the freedom of religion and conscience, the freedom of expression and assembly, and the freedom of association), legal rights (ss. 7 –14), and equality rights (s. 15). In contrast, s. 33 cannot be invoked with respect to democratic rights (ss. 3 – 5), mobility rights (s. 6), or the rights regarding the official languages of Canada (ss. 16 - 23).

I don't mind the clause too much because it is so neutered. Consider this silliness (again from the notwithstanding link):

To date s. 33 has been hardly used. It was first used in June 1982, a few months after the Charter was adopted; the Quebec National Assembly enacted the Act respecting the Constitution Act, 1982 (S. Q. 1982, c. 21). This act repealed all Quebec legislation and re-enacted it with notwithstanding declarations. The Quebec National Assembly also included a notwithstanding declaration in every law that was passed in the following three years. This use of the ‘notwithstanding clause’ was not actually aimed at protecting a specific piece of legislation from the Charter, but was an act of political protest against the fact that the Charter was entrenched in the Constitution without the consent of the Government of Quebec. Following the election of a Liberal Government in Quebec in December 1985, this practice stopped.

To me, it seems like a sensible part of peace order and good government. It helps to make changes a little painless, but no less inevitable. (okay, that might be overstating my approval of the clause, I'm not that enthusiastic about it.)
posted by Chuckles at 8:46 AM on January 10, 2006

This is a good idea. I have always disliked the notwithstanding clause, and when I was a university debater, one of my favorite pet issue cases to run was for its abolition. Martin is speaking sense here, fundamental rights and freedoms are not something that can be countermaned with a 2/3 majority every 5 years.

As for swingers, that's not a charter issue. I can't think of anything in the charter that would protect swingers clubs.

That's all well and good, but a majority of supreme court justices recently just said that swingers clubs were protected by the charter. I think youre statement would carry a lot more weight if you explained why you think they are wrong.

As an aside, who can't love Chief Justice Beverley McLachlin? I feel lucky we have such admirable jurists on the Supreme Court, ones that actually protect our rights, rather than erode them.
posted by [expletive deleted] at 8:50 AM on January 10, 2006

So you think the government should ignore individual rights? Which of these rights in particular do you find distasteful?

This debate isn't about "ignoring" rights, or "taking away" rights, though that's exactly how it's been framed for years, especially by Liberals keen to wrap themselves in the Charter. The debate isn't between rights and not-rights, it's about where you strike a balance, often, between rights. Rights conflict, and rights have limits that are far from clear. Does the right to vote extend to prisoners? Does freedom of expression include putting pornographic billboards in public? Does freedom of association include the ability to join a swingers' club? Can the government hold foreign terrorism suspects without trial?

There's no easy answer to this question, and while judges consider these matters carefully and know the jurisprudence, they are not moral philosophers, and their opinions are not inherently more valid than anyone else's. Many of their decisions are effectively matters of opinion, rather than judgements on the law, because they have such broad powers under the Charter to throw out laws they don't like. And sometimes they get it wrong. Why should the judgement of nine unelected Supreme Court justices trump that of 308 elected representatives? If we can't override court decisions, then it's the courts, not the people, who have the final say in how the country is governed.

The fact that most court judgements aren't unanimous just points to the fact that it's reasonable to disagree on how far the Charter protects certain rights - if the Canadian public disagrees with a judgement, why shouldn't it be able to assert itself over the court?

I happen to like individual rights. I also like democracy, and I would prefer that my country, in the final analysis, remain ruled by the representatives of the people, not by judges.
posted by Dasein at 9:12 AM on January 10, 2006

As an aside, who can't love Chief Justice Beverley McLachlin? I feel lucky we have such admirable jurists on the Supreme Court, ones that actually protect our rights, rather than erode them.

HEAR! HEAR!
posted by SSinVan at 9:15 AM on January 10, 2006

Well put Dasein.
This is not about 'Rights' so much as it is about the structure of the checks and balances that we keep in place to ensure that nobody (or group) ever has absolute authority.
I for one, do not trust anyone (yes that includes myself) to have the *final* say on matters of governance, and I will not allow my government or the courts to have that position either.
posted by TheFeatheredMullet at 9:24 AM on January 10, 2006

It's so cute that you Canadians have leaders who care about silly things like individual rights and freedoms. Here in the U S of God-blessed A we don't let personal freedoms get in the way of Important Things like illegal wiretapping.
posted by caution live frogs at 9:26 AM on January 10, 2006

That's all well and good, but a majority of supreme court justices recently just said that swingers clubs were protected by the charter. I think youre statement would carry a lot more weight if you explained why you think they are wrong.

The swingers case wasn't about the charter, it was about the interpretation of indecency, and the switch away from community standards to a harm-based approach in deciding what is indecent.

The only reason they had to decide is because Canada doesn't have a statutory definition of "indecent."
posted by maledictory at 9:26 AM on January 10, 2006

It's so cute that you Canadians have leaders who care about silly things like individual rights and freedoms.

Actually, I'm not sure our leaders are so virtuous, frogs. What we do have is an electorate that cares enough about individual rights and freedoms to at least try to keep the bozos honest.
posted by 327.ca at 9:35 AM on January 10, 2006

TheFeatheredMullet: I for one, do not trust anyone (yes that includes myself) to have the *final* say on matters of governance, and I will not allow my government or the courts to have that position either.

But doesn't the notwithstanding clause place precisely that control in the hands of your legislature?
posted by lodurr at 9:48 AM on January 10, 2006

I also like democracy, and I would prefer that my country, in the final analysis, remain ruled by the representatives of the people, not by judges.

I also like democracy, but I prefer that my country, in the final analysis, follows the law. As such, the judiciary has the sole responsibility and power to interpret the Constitution and the Charter. I do not ever want to see elcted judges, nor to I want to ever see individual rights determined by plebescite, referendum or the will of elected representatives.

The idea that the judiciary is no more qualified to make such determinations as any other citizen is flawed; it is part of the judiciary's central purpose. Their opinions are more valid, because the Constitution has enshrined that validity into law. By choosing to live here, we have entered into a social contract such that we implicitly agree that this is so.

if the Canadian public disagrees with a judgement, why shouldn't it be able to assert itself over the court?

Because that way lies mob rule and vigilantism.

I suppose that if there was enough political will among the elctorate that the Constitution could be changed such that the branches of government were no longer separated and were no longer protected from the whim of the people. I'd flee the country, if I could, before that happened.
posted by solid-one-love at 9:52 AM on January 10, 2006

But doesn't the notwithstanding clause place precisely that control in the hands of your legislature?

Interestingly, no. The clause is still part of the Charter. As such, the judiciary has the sole authority and responsibility to determine if the clause has been used legally. Thus, the courts could overrule the use of the clause.
posted by solid-one-love at 9:54 AM on January 10, 2006

Martin's declaration brought the whole campaign to a new low. Now, instead of issues like environmental cleanup or Immigration barriers, Martin and Harper are betting the constitution (or previous constitutionally granted rights) over who's more patriotic.

Canada has always been governed pragmatically, not idealistically. You only have to look south to see where unchecked idealism/patriotism gets you.
posted by Popular Ethics at 9:56 AM on January 10, 2006

Dasein, your disdain for individual rights and the charter in general gleams through everything you've said in this thread. What you want is for the majority to have a veto over individual rights, and that isn't a democracy, that is a tyranny of the majority. A strong independent judiciary is vital to any democracy. It protects the rights of minorities, and through this, the rule of law. This is fundamental to any democracy.

...if the Canadian public disagrees with a judgement, why shouldn't it be able to assert itself over the court?


Because that is not the place of the legislature, that is the perrogative of the court. Rights are called rights because they are not granted by the government to the people, but fundamentally belong to the people, to be protected from abrogation by the government.

[Judges] opinions are not inherently more valid than anyone else's.

Yes, they are. Judges are people who spend their lives in study of and service to the rule of law. This makes their opinions on matters of law and rights vastly more valid than that of people who do not share this dedication and experience.

In my estimation, your objection is not simply to the Liberal party, but to liberalism as a philosophy.
posted by [expletive deleted] at 9:57 AM on January 10, 2006

Oh, come on... if the FLQ cropped up again tomorrow, there'd be soldiers in the streets of Quebec whether it was legal or not - notwithstanding the notwithstanding clause. If the clause was removed, the government would (IMO) still limit freedom of assembly if there was a major crisis.

In the event of a major crisis, freedom of assembly and any other right in the charter could be limited using section 1 of the charter.

ME: As for swingers, that's not a charter issue. I can't think of anything in the charter that would protect swingers clubs.

[expletive deleted]: That's all well and good, but a majority of supreme court justices recently just said that swingers clubs were protected by the charter. I think youre statement would carry a lot more weight if you explained why you think they are wrong.

In fact, they did not say that swingers clubs were protected by the charter. The ruled that swingers club were not in violation of the criminal code sections on decency. THe second decision cites the charter, but you'll see if you read the paragraph where it is cited, that it doesn't not cite the charter to say that it protects swingers clubs.

So no, the supreme court has not said that swingers clubs are protected. And having read the charter, I can't see any reason why they would be protected.
posted by duck at 9:59 AM on January 10, 2006

Is there an equivalent or analog to the American "interstate commerce clause"? (I forget the C&V, but basically a line in the Constitution give the Fed authority to regulate matters affecting "interstate commerce"; that's since been used to mandate everything from standards in highway construction to narcotis laws and even to drive education reform.)

The constitution lists areas of responsibility for the federal government and the provincial government and says that anything over which the provinces have not been explicitly given sole jurisdiction shall be in the jurisdiction of the federal government.
posted by duck at 10:05 AM on January 10, 2006

And having read the charter, I can't see any reason why they would be protected.

Freedom of peaceful assembly is a fundamental right under the charter. That right can only be limited as can be justified in a free and democratic society. I, as a lay person, cannot see how that right could be thus limited, so I can see a Charter argument to protect swingers clubs, if the judiciary wanted to do so.
posted by solid-one-love at 10:07 AM on January 10, 2006

Duck, I apologise, I guess in a technical sense I was wrong on this one. However, from what I read I do recall language from the justices that consensual sexual behavior between adults that happens behind closed doors was beyond the reach of legislation. This would be an endorsment of the idea that such clubs would be protected by the charter. Furthermore, from what I understand, the definition of indencecy which the courts used is determined by what would be compatable with the Charter.
posted by [expletive deleted] at 10:11 AM on January 10, 2006

TheFeatheredMullet writes "I for one, do not trust anyone (yes that includes myself) to have the *final* say on matters of governance, and I will not allow my government or the courts to have that position either."

Someone has to have final say, eventually a decision has to be made. If you are not going to vest the final decision power in a person (or group) then the only other option would be something like the magic 8 ball.
posted by Mitheral at 10:13 AM on January 10, 2006

Freedom of peaceful assembly is a fundamental right under the charter. That right can only be limited as can be justified in a free and democratic society. I, as a lay person, cannot see how that right could be thus limited, so I can see a Charter argument to protect swingers clubs, if the judiciary wanted to do so.

I'm not sure the right to peaceful assembly includes the right to watch the assembled have sex. So I think the charter would ban a law that banned swingers from coming together to talk about swinging or to meet other swingers. But I think it's hardly obvious that the charter would protect the right to have public sex at these gatherings.

(Note that I have no problem with the clubs and couldn't care less what people do there. I'm just saying I'm not sure the charter protects them.)
posted by duck at 10:13 AM on January 10, 2006

In my estimation, your objection is not simply to the Liberal party, but to liberalism as a philosophy.

Wow, that's so staggeringly wrong it's almost funny. I would point out that what you're objecting to as illiberal is parliamentary supremacy - you seem to believe in unfettered judicial supremacy, and that anything that constrains this is illiberal. I think that there are a lot of Commonwealth citizens who would be suprised to learn that parliamentary democracy is inherently illiberal.

Rights are called rights because they are not granted by the government to the people, but fundamentally belong to the people, to be protected from abrogation by the government.


Actually, they are granted by the government - do you think the Charter sprang out of "the people"? No, it was an act of the government. It's the majority that decides what rights are rights. It's up to the courts to protect these rights, for sure, and courts should be respected, but courts get it wrong, too, and there's nothing wrong with having a mechanism for constraining courts whose interpretations of the Charter diverge drastically from the mainstream. If you think that's going to lead to a tyranny of the majority, I would suggest you have a rather impoverished view of the Canadian majority, and rather too much faith in the power of courts in the face of a true attempt at tyranny.

My point about judges not having more valid opinions than others was that they are often not ruling on points of law, as they did in pre-Charter days, but essentially creating new law, acting as legislators, not interpreters. In this, their opinions are no more valid than those of any Canadian, and certainly not more than those of our elected representatives.
posted by Dasein at 10:29 AM on January 10, 2006

But I think it's hardly obvious that the charter would protect the right to have public sex at these gatherings.

Public sex? We're talking about private clubs, not public places, and that was central to the ruling.

That said, I agree that it's hardly obvious that the charter would protect swingers' clubs -- I merely countered your previous statement in that I can see a Charter-based argument.

(I also don't care about what people do at swingers' clubs, but my politics have always been rooted in 'if it pisses off the hard-core religious, then I support it'.)
posted by solid-one-love at 10:35 AM on January 10, 2006

It's the majority that decides what rights are rights.

This is an illiberal view. If you believe this, then you are not a liberal. Sorry.
posted by [expletive deleted] at 10:43 AM on January 10, 2006

Electing Harper would be one of the worst mistakes this country has ever made. Good god, people, don't you remember Mulroney? Sold us out and fucked us over, he did. The rich may well be better off, but a boatload of ordinary Canadians sure were hurt by his policies and decisions.

For gods' sake, we're one of the world leaders for developing a fundamentally fair and just society, with protections and supports for everyone. Let's not throw that away just because we've had a weiner in office this past year or four.

Don't vote for the person, vote for the policies. Harper's policies gobble American cock. And as we all have seen since 9/11, American cock is downright nasty.
posted by five fresh fish at 10:47 AM on January 10, 2006

This is an illiberal view.

No, it's the correct view. Any constitution or law has to be approved by a majority. This is the only way that rights are codified. Therefore, in a democracy, the majority decides what rights exist (with the exception, I will grant, of common-law rights). There is nothing illiberal in this view. It would be illiberal to say that the majority should have no qualms about ignoring rights, but that's not what I'm saying.
posted by Dasein at 10:50 AM on January 10, 2006

I don't think it would be that bad for Harper to get in with a minority. If Martin is the latter-day John Turner, Harper would be the latter-day Joe Clark, rather than the modern Mulroney (only in the sense of his probable length of term of office).

With a minority, Harper would be completely unable to direct social policy backwards, sell off Canada to the US, or do anything else particularly egregious. We'd have the opportunity to see exactly how ineffectual that smug, smirking gargoyle is in the few months before his government is inevitably toppled.
posted by solid-one-love at 10:54 AM on January 10, 2006

With a minority, Harper would be completely unable to direct social policy backwards, sell off Canada to the US, or do anything else particularly egregious. We'd have the opportunity to see exactly how ineffectual that smug, smirking gargoyle is in the few months before his government is inevitably toppled.

He would be completely capable of abdicating all federal responsibility and handing all the power to the provinces (who would then have all the time in the world to dismantle the country and take social policy backwards). And of course he would have the full support of the Bloq in doing so.
posted by duck at 11:01 AM on January 10, 2006

I probably shouldn't have included the swingers club thing. I didn't give it enough thought/reading...

But it is interesting that the Supreme Court made a new test for decency. What gives the Supreme Court that authority? I guess it is a common law thing, but then what do they use to determine what the new test should be?

Finally, I think some comments above are wrong on the notwithstanding clause. I think you just need a simply majority in the relevant legislature, not 66%. Here is the rabble.ca discussion on the notwithstanding clause proposal - long winded, but interesting enough.
posted by Chuckles at 11:19 AM on January 10, 2006

Finally, I think some comments above are wrong on the notwithstanding clause. I think you just need a simply majority in the relevant legislature.

Wow, you're right. That's terrifying. I hereby change me vote to "Get rid of it".
posted by duck at 11:23 AM on January 10, 2006

Wow, you're right. That's terrifying. I hereby change me vote to "Get rid of it".

Terrifying? How many times has it been used? It's political suicide unless very widely supported in government and by the general public. And it also only lasts until the next government that comes along to kill it. And assuming that it's popular and the overwhelming majority of people within a province agree with the use of the notwithstanding clause on a particular issue, is the problem with the ability to use the clause or with the Charter in the first place? I would love to get rid of it, if only we could actually practically amend the constitution. And if only we didn't have the most fractured decentralized federal system in the world.
posted by loquax at 11:31 AM on January 10, 2006

He would be completely capable of abdicating all federal responsibility and handing all the power to the provinces


You mean respecting the constitutional division of powers? Frightening indeed.

(who would then have all the time in the world to dismantle the country and take social policy backwards).

Yes, clearly the only thing preventing the abolition of health care in Canada and ensuring national unity (especially in Quebec) is the steady hand of the federal government under the stewardship of the Liberal Party.
posted by Dasein at 1:28 PM on January 10, 2006

Terrifying? How many times has it been used?

Yes, it's almost as if politicians are terrified of it.

Dasein: to suggest that individual rights are entirely determined by the tyranny of majority is an extreme position to say the least, and does not reflect any common conceptions of democracy that I know of. If you have any historical or academic citations for your theory, I would find them very interesting. Thanks.
posted by mek at 3:41 PM on January 10, 2006

to suggest that individual rights are entirely determined by the tyranny of majority is an extreme position to say the least, and does not reflect any common conceptions of democracy that I know of.

Unless I'm misreading the comment, I don't agree with Dasein's arrival at that point, but I do agree with the point - it's basically Hobbes' Leviathan: the majority, or the state, is the only thing that can temper the passions of man and allow them to enjoy any type of individual freedom at all.

If politicians are terrified of using the notwithstanding clause, the public should hardly be terrified of its use. Assuming there's cause to be terrified of non-charter compliant laws anyways. We seemed to get along just fine prior to 1981.
posted by loquax at 5:20 PM on January 10, 2006

mek, how's bill 101 for starters? and oh, I don't know, all of European history to finish off.
posted by tiamat at 7:56 PM on January 10, 2006

to suggest that individual rights are entirely determined by the tyranny of majority is an extreme position to say the least, and does not reflect any common conceptions of democracy that I know of

Huh? You seem to be misunderstanding me. I'm not saying that rights can just be ignored by majority vote, not at all. They wouldn't be rights then. Now, the notwithstanding clause does technically give the legislature essentially that ability, but it only applies to some rights, and I think it's pretty clear that it would only be used in exceptional cases - and my point is that we should not look at its use in such cases as an abrogation of rights, but as a mechanism to ensure that the people, rather than the courts, have the final say when a court gets a judgement very wrong, as it has in the past and will undoutedly do again in the future.

But it is unarguably true that rights are only established by the consent of the majority - otherwise they'd never make it into law in the first place. I'm puzzled by the fact that people seem to have such a problem with this fairly obvious statement.
posted by Dasein at 8:03 PM on January 10, 2006

OK, so rights are established by majority but not revoked by majority (out of necessity, you suggest, in the democratic system...), and therefore they are founded in more than just this majority opinion, as even with it later revoked they still remain? Perhaps we are closer in opinion than I previously believed.

And yet still, Canada is an obvious demonstration of the enactment of rights despite majority opinion; we have nothing more than polls suggesting the populace's opinion on the right to same-sex marriage, but that right has been established in this country. The privilege of the courts allows for the establishment of rights regardless of the populace's opinion, and thus without majority support - contradicting your statement that "it is unarguably true that rights are only established by the consent of the majority." Was it established in an unjust manner, in your opinion?

Furthermore, I'd love to trek with you into the realm of hypotheticals. Slavery, for example: if supported by a majority (as it was, for a very long time), is it right?
posted by mek at 12:04 AM on January 11, 2006

Dasein, rights that are granted by the majority are not only alienable, as they are subject to the veto of said majority, but they are totally incompatable with the maximising individual rights. This concept is at the heart of any conception of liberalism.

Also, I'm guessing you are a moral relativist. Or are there rights independent of the will of the majority?
posted by [expletive deleted] at 12:44 AM on January 11, 2006

I am most definitely not a moral relativist. I think there are certain rights that should be recognized in any society - in that sense I subscribe to some kind of natural law theory. I'm just being a bit of a legal positivist by pointing out that those rights don't exist in any real, concrete sense unless they have been accepted by the majority.

Put another way, I think people in any country have a right to freedom of speech. But I mean that in the sense of "should have a right to free speech." Obviously in societies where the people or the government don't accept that, they don't really have that right. I think you're confusing my description of reality with a normative judgement.
posted by Dasein at 9:44 AM on January 11, 2006

327.ca wrote: "What we do have is an electorate that cares enough about individual rights and freedoms to at least try to keep the bozos honest."

You guys also have an electorate that votes. When our "Worlds Greatest Democracy" occasionally approaches 50% turnout, on a Presidential election year, people shit themselves with glee about how much we care about our country (completely forgetting that the remaining 50% of us could apparantly care less).
posted by caution live frogs at 9:59 AM on January 11, 2006

2004 US Presidential Election Turnout - 56.7%
2004 Canadian Federal Election Turnout - 60.9%

Maybe neither country is the world's greatest democracy.
posted by loquax at 10:29 AM on January 11, 2006

Also, from what I understand, and I could be wrong, the US counts the percentage of total electors, whereas Canada counts the percentage of total registered voters, so the comparison makes Canada look better than it deserves to.
posted by Dasein at 11:47 AM on January 11, 2006

Canada's average voter turnout since 1900: 70%
USA's average presidential voter turnout since 1930: 55%
posted by SSinVan at 11:52 AM on January 11, 2006

Dasein, tell us the definition of "registered voters" in Canada, and "total electors" in the USA.
posted by SSinVan at 11:53 AM on January 11, 2006

Also it is much easier to get on the electors' list in Canada. I moved to a new apartment in August, never notified Elections Canada of my new address; yet I got a voter card in the mail.
posted by angrybeaver at 12:04 PM on January 11, 2006

As for the notwithstanding clause, Paul Martin will say anything to get re-elected. The appropriate response is to ignore him and vote for the Animal Alliance Environment Voters Party of Canada, Bloc Québécois, Canadian Action Party, Christian Heritage Party of Canada, Communist Party of Canada, Conservative Party of Canada, First Peoples National Party of Canada, Green Party of Canada, Libertarian Party of Canada, Marijuana Party, Marxist-Leninist Party of Canada, New Democratic Party, Progressive Canadian Party, Western Block Party, or your local independent candidate.
posted by angrybeaver at 12:11 PM on January 11, 2006

Total electors means everybody eligible to vote, a number determined I would guess using census data, rather than people who've registered to vote. Isn't "registered voters" somewhat self-explanatory? You register to get on the electoral list, at least in Canada. So in Canada, for instance, instead of giving the number as a percentage of the number of citizens 18 or older, as determined by the last census, it's as a percentage of people who are on the list, which is a smaller number to begin with, so Canada's turnout results are going to look higher than the US's, all things being equal.
posted by Dasein at 2:50 PM on January 11, 2006

Canada: 'since 9/11, American cock is downright nasty'
posted by lenny70 at 2:53 PM on January 11, 2006

angrybeaver: Also it is much easier to get on the electors' list in Canada. I moved to a new apartment in August, never notified Elections Canada of my new address; yet I got a voter card in the mail.

It is very easy to vote in Canada. You don't have to be on the list. There are two ways to vote if you didn't get a registration card:

• Provide any documents which, in combination, give your name, address, and signature. This could be a library card plus a telephone bill, or a drivers license, or any number of other thing.
• Have someone on the voters list in your polling district vouch for you in person.

As far as I remember, since someone with the documentation in the first option will be added to the voters list on the spot, you can show up with someone who isn't even on the list before election day.

My understanding is that in the U.S. it is much more difficult to be added to the voters list. Anyone with information? I suppose it probably varies by state...
posted by Chuckles at 3:34 PM on January 11, 2006

Registered voters in Canada = Files a tax return

If you tick the box about "address provided to elections Canada", then whenever its updated with Canada Revenue, then its updated automatically I think.
posted by SSinVan at 3:47 PM on January 11, 2006

Any politician will say most anything to get elected. Martin and Harper certainly are nose-to-nose on the "how high is the bs stacked" competition, and if I paid any attention to Layton, I'd probably say the same about him...
posted by five fresh fish at 8:44 PM on January 11, 2006