Not Withstanding Clause, The Canadian Charter
 

Okay, I've got a test on a lot of this stuff come Monday, so I thought I'd start a discussion to help keep my mind on some of it. Stupid Canadian Content requirement forcing me to take Law for my BA. Lets start with a little explanation, shall we?

In the Canadian Charter of Rights and Freedoms section 33, we have something called the, "Not Withstanding Clause." Basically, it allows a provincial government to pass a law that overrides the rights contained in section's 2, and 7 - 15 (fundamental freedoms, legal rights, and equality rights.) There is one limitation on this however, "The Sunset Clause," which basically makes said law disappear five years after its inception, although it may be created again, but such a thing is a political gamble.

In Quebec, this has been used to restrict the use of the English language on signs and such. In Alberta, it was used to create legislation barring gay marriage.

Is this a good thing, a bad thing, or just a thing? It seems to have been used for some pretty petty purposes in the past, but is this a necessary power for the government to have anyway? It could end up being a good thing if the federal government suddenly decided to make a bunch of changes to those sections of the Charter that no one agreed with. However, it seems that would be less likely than one province just using it to be jerks.

Also, is Alberta's use of the Clause lawful? It isn't supposed to be able to override rights guaranteed to both genders. That seems a little open to interpretation to me.

Thoughts?

Personally, I don't know how it's worded, but I find it odd that it was used to justify a law that had no practical purpose other than to restrict freedoms. To temporarily violate the Charter in order to provide some sort of benefit, I could understand, but simply for the sake of violating the Charter? Makes no sense why it would be allowed, from a practical standpoint.

You can see the full Charter here . This clause is section 33.

Apparently, it's not illegal to make laws directly counter to the Charter for no reason other than to counter the Charter. Doesn't make it any less shady.

I think it's cool that a lower government level has this power, but why on earth would they set it to allow overriding of basic freedoms? Makes no sense to me.
Surely there was a better topic to apply it to.

And technically (I think) it's not illegal, because they DID have the authority to ban gay marriage. Whether it was fair or a good idea is completely different.

In Canada we arent a true democracy (kind of like the US) whereas #1 the Prime Minister can go over ANYONES head and then the only check he has against him is the Governor General, and #2 regulations can be passed without vote. The simple answer is, we get f*cked over ALOT because there is nothing stopping the government from making its choices. In my opinion they should not have this power, but if we protest against it they would probably make it illegal to protest against it.

It COULD be used in a good way, but it ISNT used in a good way, instead it is used to prevent rights and freedoms. The government mainly strives at taking rights instead of helping people doesnt it?

True, we the people don't have as much say in politics as, say, a direct democracy, but we chose representitives who support our ideals to make those descisions. Officials have incentive not to screw us over, because we're the ones deciding if they'll be elected into the same position again next year. Also, which rights and freedoms does American democracy restrict? If any are restricted, we as a whole can re-elect officials to get rid of that restrictment.

In Canada we revoted JC how many times? In Alberta we revoted Ralph Klein how many fn times? In the US they just re-elected Bush...

lets face it, theres no incentive, screw up and for some reason we STILL vote you back into office...

Bush was reelected because Kerry had no idea what the Hell he was doing (and it showed).

Ralph Klein is a tricky matter. When he does a good job, he does a really good job, but when he fucks up... good lord, I don't know how that man manages to stay in politics. Still, he does a good job of fighting the federal government off when they want to shit on us. That's an important trait in a western premier.