Talk:Canadian Charter of Rights and Freedoms

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Talk:Canadian Charter of Rights and Freedoms/Archive

Contents 1 Notwithstanding Clause re: Alberta 2 Where is the document kept? 3 Neutrality 4 Re Trudeau allegedly enacting the Charter

[edit] Notwithstanding Clause re: Alberta

I'm almost 100% sure that Alberta never actually used the notwithstanding clause to uphold heterosexual marriage, they just threatened to. Can someone confirm this? Inanechild 01:25, 10 March 2006 (UTC)

• In 2000, Alberta amended its Marriage Act[1] to define marriage as being between a man and a woman. The law included a notwithstanding clause in an attempt to protect the amendment from being invalidated under the Charter.

Well, you're both right, actually. So we may want to clarify this section. The crucial point here is that the Albertan government simply doesn't have the authority to invoke the Notwithstanding Clause on this issue. The definition of marriage is a purely federal jurisdiction (Sec. 92 & 93) and the Notwithstanding Clause cannot override matters of jurisdiction. So, while they may have cited the Clause, they don't have the legal power to invoke it: ipso facto they haven't actually "used" it. It's a rather humourous legal situation actually: not only are they violating the Charter under the obvious Sec. 15 "Equality" provisions (and probably under Sec. 26 as well -- which isn't covered by the Notwithstanding Clause), but they don't even have the jurisdiction to violate those sections even if they wanted to! The Supreme Court could throw out something like this on its coffee break. --Todeswalzer 19:12, 15 October 2006 (UTC)

[edit] Where is the document kept?

I didn't see a mention of where the original document is kept. I think this should be included somewhere in the article. Anyone know, and can add?

45.48741° N 75.67767° W --Mathew5000 15:02, 6 February 2007 (UTC)

[edit] Neutrality

Near the end of the Interpretation and Enforcement section is the paragraph Legal organizations have also been formed and frequently intervene in cases to assist courts in the process of interpreting the Charter. Notable examples would be the Canadian Civil Liberties Association, the Canadian Labour Congress and the Women's Legal Education and Action Fund (LEAF).

The word "assist" suggests that these groups are objectively and dispassionatly rendering assistance to the judges, like they are groups of court clerks. In fact, like any other intervenors, they are attempting to bring the judges around to their point of view.

Also, the three organizations listed can be considered as having a liberal orientation. To balance this paragraph, it should either list an equal number of conservative organizations like the Christian Legal Fellowship, the Canada Family Action Coalition, the Home School Legal Defence Association and the REAL Women of Canada, or no organizations at all.

The paragraph should be rewritten as Legal organizations have also been formed and frequently intervene in Charter cases in an effort to secure favourable rulings. Vgy7ujm 07:34, 12 February 2007 (UTC)

The phrase "assist the Court" is invariably used to describe what interveners do. I can see your point; the word "assist" might imply that the interveners are acting out of pure altruism. But the phrase "assisting the court" is not entirely a fiction; courts do find it helpful to get different perspectives on a legal issue. I took a stab at editing the paragraph in question to meet some of your concerns [2]. (I also edited the article intervener to address the point [3]). --Mathew5000 12:37, 12 February 2007 (UTC)

Incidentally, I took out the words "have also been formed", because most of the groups mentioned were in existence long before the Charter. --Mathew5000 12:37, 12 February 2007 (UTC)

As for the issue you raised of the groups listed "having a liberal orientation", the reality is that such groups tend to intervene more frequently than conservative groups. For example, have a look at this dissertation, particularly Appendix 4:3 (beginning at page 100 of the PDF). It lists the number of appearances of each group during the time period analysed. You will notice that the Canadian Civil Liberties Association, Canadian Labour Congress, and LEAF each appeared several times while REAL Women of Canada appeared only once (at p. 97 of the PDF, Appendix 4:2). --Mathew5000 12:37, 12 February 2007 (UTC)

It is true that the Canadian Civil Liberties Association appeared more times than REAL Women of Canada (6-1 according to the appendix in question). However, the argument being advanced also has a great number of weaknesses:

• The period measured in question as proof that liberal interveners intervene more only represents a three year interval on the Court (1997-1999)
• The period measured only represents the number of interveners before the Supreme Court of Canada, which does not hear all Charter related cases; just a fraction of them. I.e. it does not examine the number of times, for instance, REAL Women was intervener before other appeal courts, superior courts or trial courts.
• Furthermore, the courts only allow certain interveners to present arguments. The Canadian Civil Liberties Association has a vested interest in how the Charter affects a very broad and diverse spectrum of Canadian law (e.g. Criminal law), whereas REAL Women does not have such a broad interest or mandate.
• While it is also true that Canadian Civil Liberties Association appeared more times than REAL Women in the time period in question, it also ignores the fact that government attorney generals tend to intervene far more often before the supreme court. I believe the Court heard interventions from the Canadian Attorney General 33 times in that time period alone. In other words, the government has had the opportunity to advance legal arguments far more than other intervenors, especially the so-called Liberal ones.
• Lastly, REAL Women of Canada is not representative of all conservative groups. There must be an examination of how many other conservative groups intervened to make a fair comparison.Ben 17:22, 13 February 2007 (UTC)

Keep in mind that we are discussing a short paragraph in the ‘Interpretation and enforcement’ section of the article. It isn’t exactly the place for a more in-depth discussion of the influence of intervener groups. I'm not saying that the points you're making are inappropriate for Wikipedia, but I would say they should go either in the article Supreme Court of Canada or the article intervener. For purposes of the Charter article, I would say it's enough to have a brief mention of the role of intervener groups. Now to address your bulleted points in order:

• There are lots of studies quantifying interventions by groups over longer time periods. Not sure how many of them are online but you could find them quickly at a library. In particular look for papers by Ian Brodie or Peter McCormick. You will find that so-called conservative groups have not intervened as often as so-called liberal groups; it is not just an aberration pertaining to the years 1997-99.
• I agree that the SCC hears only a fraction of Charter-related cases, but its decisions are obviously most influential. In any event, I would be very surprised if it turned out that REAL Women and other ‘conservative’ groups were intervening at lower levels of court at a higher rate than at the SCC.
• Given the context within the article, if the CCLA “has a vested interest in how the Charter affects a very broad and diverse spectrum of Canadian law” as you say, then that’s an argument in favour of mentioning it at this point in the article, while perhaps not mentioning the so-called conservative groups which do not intervene as much.
• The paragraph in question is about non-governmental intervener groups. It might also be worth mentioning somewhere in the article that the AGs also intervene in constitutional cases even if their jurisdiction is not directly involved in the case at hand, as you point out.
• There has been some interesting academic work considering what types of groups have intervened in Charter cases, and what effect they have had. For example, look at this book review. As I mentioned, the consensus has been that so-called liberal groups have had much more success as interveners in Charter cases than so-called conservative groups.

For those reasons, I would argue that Wikipedia’s NPOV principle does not require ‘equal mention’ of both liberal and conservative groups in this paragraph of this article. --Mathew5000 20:01, 13 February 2007 (UTC)

Thank you for the response, Matt. The scope of the paragraph is indeed noted. The point of my response was to establish that the previous argument you have made is not sustained by the thesis your referred to. I am sure that there are numerous studies "quantifying interventions by groups over longer time periods". However, none have been mentioned or cited except for a thesis which examines a relatively small period of time in the Supreme Court's history. Moreover, the conclusions that can be drawn from that research should be interpreted with caution and with relatively little weight:

Despite how influential the Supreme Court is and can be, which is not at all in question, the vast majority of cases occur at lower levels, that it at the provincial appeal courts, provincial superior courts and trial courts and sometimes the federal courts. The provincial appeal courts and superior courts can also be influential and their opinions are just as legally binding. Many of the intervenors mentioned are far more interested in the consequences of the courts' decisions and interpretations of Charter law. It is not unheard of that they intervene, and far more often, at these lower levels. For instance, I can recall that in that same period REAL Women was also intervening in Rosenberg and CUPE v. Canada, which did not get appealed to the Supreme Court.

Also diminishing the conclusiveness of the evidence presented is the fact that not all cases are appealed, and those that are aren't always given leave to appeal.

Something that also hasn't been considered is whether the number of interventions made by these groups at the Supreme Court are statistically significant, especially when compared to interventions by government officials. The thesis also mentioned that the Attorney Generals were also far more likely to be cited by Supreme Court justices than other intervenors.

It would be a unwise to base an assessment of the frequency or influence of an intervener by just looking at the data cited and based on the Supreme Court. It is also inappropriate to compare apples and oranges (e.g. the CCLA and REAL Women).

As mentioned before, there are supposedly studies that advances one point or another. However, it is insufficient to state that they exist (just like the truth is somewhere out there). We are not here to go on a fishing trip; we are here to be critical of the conclusions and arguments that are being advanced. We cannot and is not our duty to seek evidence; that is the duty of the person making a contention.Ben 21:26, 13 February 2007 (UTC)

[edit] Re Trudeau allegedly enacting the Charter

"Hence, the Government of Prime Minister Pierre Trudeau enacted the Charter in 1982." Technically, this is not correct. The Charter was enacted by the Parliament of the United Kingdom at the request of the Parliament of Canada.Ben 05:06, 16 February 2007 (UTC)