# Trudeau's Legacy: Same Sex Marriage and the Charter of Rights



## Fink-Nottle (Feb 25, 2001)

I was perusing the the BBC News site and came across this article on the upcoming wedding between Elton John and Canadian David Furnish:

BBC Article: Sir Elton plans 'private wedding'

The UK has a new 'Civil Partnership Act' which comes into effect later this month and essentially creates an institution which has all the legal rights and obligations of a marriage without actually being on. 

I think that views in the UK and Canada are fairly similar on this issue. Some don't see what the big deal is, some are resigned, and some hold marriage to be an institution joining one man and one woman. However, a consensus did emerge from the debate in the UK Parliament and in the country that an institution was needed to recognize same sex couples and so they have the new act... it's a defacto marriage but not a marriage in name. Some see that as splitting hairs, some see it as fundamental. 

The advantage to having a consensus though is obvious. Generally people on both sides are fairly happy. There is no real movement to reverse the act and to quote David Furnish, the Canadian half of the couple, on the new Act:



> "It is one of the defining issues of our times and I applaud Britain for embracing the diversity of our society."


So an important question for us in Canada, is why this did not happen here? Why do we have a polarized electorate with both sides fighting a game of 'Winner takes all'? Why is it conceivable that we have 'Same Sex Marriage' but maybe we won't after the election... and perhaps later we will again? The blame has to fall on our Charter of Rights and Supreme Court. In a democracy we expect that our elected representatives will govern our country... but as soon as 'Same Sex Marriage' became a Charter issue that ability was stripped from them. Instead, the decision was made by a group of people who are unelected and unaccountable. Whether they made the right decision or the wrong one is irrelevant... what matter is that they made it without reference or accountability to us. The cost may be that our next government will continue the game of 'Winner take all' and throw the 'Notwithstanding Clause' at the Court. 

I find this situation very frustrating. I believe that there is an overwhelming consensus here as in the UK that an institution is needed to recognize 'Same Sex Unions'. But our elected Parliament will not get the chance to recognize and act on that consensus. Thanks Pierre.


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## Beej (Sep 10, 2005)

Same sex unions were widely supported in Canada in the one poll I remember but, as you mentioned, the charter doesn't really allow that. I actually agree with Canada's final outcome in this case, but can see why it would frustrate so many. Another option was to get government out of marriage altogether, which was my ideal. That may have irritated even more people.


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## MacDoc (Nov 3, 2001)

Well Britain had classes too that stultified society and the workplace. Perhaps it's more acceptable to be a different "class" of person or couple  
You say blame...... I say thank Trudeau.

Equal is equal ..... no modifiers. If you want, take the entire term out of law and make ALL such arrangements civil unions. Better arrangement in my mind.

Wanna bet you'd hear howls of protest then???.........


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## nxnw (Dec 22, 2002)

> The blame has to fall on our Charter of Rights and Supreme Court. In a democracy we expect that our elected representatives will govern our country... but as soon as 'Same Sex Marriage' became a Charter issue that ability was stripped from them. Instead, the decision was made by a group of people who are unelected and unaccountable.


1. A free and democratic society is a country "of laws and not of men". We DO NOT expect men to govern our country in a way that offends commonly held principles and offends out constitution.

2. The particular principle at issue here, which you reject by your argument, is that all should have equal treatment before the law, regardless of race, colour, etc. It is, however, a principle that most Canadians agree on, so much that it has been entrenched in our constitution, so that it can't be trumped by ignorance and bigotry. The thing is, you want YOUR individual rights protected, don't you? So, why do you think you can exclude the rights of other groups? 

3. You talk of the Charter as if it suddenly appeared out of thin air and was imposed on us. No, it was the product of, not one government, but 10 (and has been embraced by the 11th, Quebec, even if its "signature" isn't on it). It reflects common Canadian values and protects individuals from the tyranny of the majority.

4. Enough of this right wing claptrap about "the decision was made by a group of people who are unelected and unaccountable". No, the decision was made by the 10 legislatures who came together ratify the Charter and the principles it stands for. The court followed the law. 

All you are saying is that one legislature should be able to undo the result of a principle that has unique national consensus, because you don't like the result.


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## Pelao (Oct 2, 2003)

> Instead, the decision was made by a group of people who are unelected and unaccountable. Whether they made the right decision or the wrong one is irrelevant... what matter is that they made it without reference or accountability to us.


:clap: :clap: :clap: 

Well put. This is a central issue. We have a lot of politician but few leaders. When the poll numbers scare them a bit they leave it to the unelected. Whether or not we support the gay marriage situation in Canada I feel we should be concerned about the way it came about.


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## nxnw (Dec 22, 2002)

Pelao said:


> > Instead, the decision was made by a group of people who are unelected and unaccountable. Whether they made the right decision or the wrong one is irrelevant... what matter is that they made it without reference or accountability to us.
> 
> 
> :clap: :clap: :clap:
> ...


It's like Mel Brooks said about comedy and tragedy: I cut my finger, its tragedy. Comedy is, you fall in an open manhole and die.

Or, "I have rights", but, "YOU benefit from decisions made by a group of people who are unelected and unaccountable".


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## SINC (Feb 16, 2001)

nxnw said:


> 4. Enough of this right wing claptrap about "the decision was made by a group of people who are unelected and unaccountable". No, the decision was made by the 10 legislatures who came together ratify the Charter and the principles it stands for. The court followed the law.


Bulls**t.

Unelected people have no business making decisions over the wishes of the majority.


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## MacDoc (Nov 3, 2001)

NXW :clap:
The Charter is about protection of minorities and rule of law NOT about suppression of minority by majority vote and especially not putting the Parliament as ultimate arbitor- that's what checks and balances are for in a national structure.

The legislators are NOT the final arbitor the Charter is. FN - wanna change it?? - get the required signatures.
Thanks Pierre.

Trudeau also left us with multiculturalism as a national policy - compare that to France's situation where integration has largely failed and cultures end up ghettoized without formal government support.
A second thanks due for that foresight and the minority protection of the Charter goes hand in hand with the spirit of multiculturalism.

If the gov proposed civil union was the legal term for ALL - it would get my support in a heartbeat and the courts would be mute.

Would others be so agreeable to THAT change??.....if you want consensus FN do it THAT way???


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## Pelao (Oct 2, 2003)

> No, the decision was made by the 10 legislatures who came together ratify the Charter and the principles it stands for. The court followed the law.


Incorrect. The point is that the legislature failed to create a law in the first place, only doing so after the court intervened. There was no law to follow. The Charter is not a law, or the law, it is a Charter, by which laws and actions must be measured.

Of course the courts must protect and enforce as per the Charter. If the populace disagrees with those decisions then they have to change the Charter.

Problems arise when politicians fail to take a stand and propose legislation and argue their case - instead they 'ask' the court to write the laws. A failure of leadership. Our politiciands side-step contentious issues, then can say they are obeying the Charter to one side of the argument, and to the other side say they are living up to the spirit of the Charter.


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## nxnw (Dec 22, 2002)

SINC said:


> Bulls**t.
> 
> Unelected people have no business making decisions over the wishes of the majority.


Unelected people don't make these decisions. The supreme law of the country, enacted by a consensus of 10 legislatures, dictated this decision you don't like, because the Charter stands for a Canadian value that we are all entitled to equal treatment by our governments. You seem either not to understand this or you have a problem with equality.

What if the majority of Canadians want to say retired white Albertans don't get pension benefits? I bet if you put it to a vote, we'd get a majority of the population supporting that. After all, why should rich white Albertans, gorged on oil wealth be sucking at the public teat?


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## nxnw (Dec 22, 2002)

Pelao said:


> Incorrect. The point is that the legislature failed to create a law in the first place, only doing so after the court intervened. There was no law to follow. The Charter is not a law, or the law, it is a Charter, by which laws and actions must be measured.


You have idea of what you talking about.

FYI, the Charter is part of our constitution. It is not only A law, it is the supreme law of the land. It became the supreme law of the land when it was ratified by 10 legislatures. That is why other laws must measure up to it.


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## RevMatt (Sep 10, 2005)

SINC said:


> Bulls**t.
> 
> Unelected people have no business making decisions over the wishes of the majority.


That is, in fact, precisely the duty of the court. To protect the minority from the majority. Pure democracy is often called the tyranny of the majority. Our unelected courts attempt to balance that.


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## Pelao (Oct 2, 2003)

> you have idea of what you talking about.
> 
> FYI, the Charter is part of our constitution. It is not only A law, it is the supreme law of the land. It became the supreme law of the land when it was ratified by 10 legislatures. That is why other laws must measure up to it.


Presumably you mean to say I have no idea of what I am talking about. Actually I do, so right back at ya. 

The Charter was was ratified as an agreement, as a Charter, not as a law. The Charter is a binding agreement. It is certainly not the supreme law of the land - it is a Charter against which laws and actions are measured. The supreme law of the land is the people working under the democratic process. Spend a few years studying constitutional and international law and these things become clear.

There is a big difference.

Which goes back to my point - it would be better if politicians would stand up for their viewpoints and set laws. If those laws run against the Charter, then we have the opportunity to take the issue to court. Setting the stage for the courts to initiate law is an example of politicians side-stepping issues.

I have no problem with the decision in this case, and certainly no problem with the Charter being enforced - I do take issue with the way it was done.


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## MacGuiver (Sep 6, 2002)

If it is true that it is a violation of a gay persons "charter rights" to not have their union identified with the term "marriage" (which has been used, and still is used around the world to describe the union of one man and one woman) then these exclusionary/discriminatory terms must also be in violation of the charter.

WOMAN, MAN (These terms exclude others based on gender, Human may be more appropriate but then again that discriminates against other mammals)
GAY, STRAIGHT, BISEXUAL, LESBIAN (These terms exclude others based on sexual orientation.)
NATIVE, WHITE, BLACK, HISPANIC (These terms exclude people of other races therefore violate their rights.)

If separate but equal is not possible, how can a human be called a "woman or female" and still have the same rights as a man? Equal is equal ..... no modifiers.

If you think this argument is ridiculous to claim a persons rights are violated if they're excluded from the definition of the terms I've sited then join the club. 
When I tell someone I'm married there is no mistake that the nature of the union I am in is heterosexual and monogamous. I'm not living common law and I don't share my bed with another man. My relationship is with a person of the complimentary sex. That clarity is now gone.

Cheers
MacGuiver


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## da_jonesy (Jun 26, 2003)

MacGuiver said:


> When I tell someone I'm married there is no mistake that the nature of the union I am in is heterosexual and monogamous. I'm not living common law and I don't share my bed with another man. My relationship is with a person of the complimentary sex. That clarity is now gone.


What has any of that to do with other peoples rights to marry? I'm sorry that you cannot comprehend that a word can be expanded to encompass different meanings and interpretations. I suspect that perhaps you think that language does not evolve... so how's that cave painting working out for you?


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## Carex (Mar 1, 2004)

> That clarity is now gone.


So?


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## MacGuiver (Sep 6, 2002)

da_jonesy said:


> What has any of that to do with other peoples rights to marry? I'm sorry that you cannot comprehend that a word can be expanded to encompass different meanings and interpretations. I suspect that perhaps you think that language does not evolve... so how's that cave painting working out for you?


You ladies may have a point there.

Oh and da-jonesy, the copy of the charter I have in my cave has no mention of a "right to marriage". Are you making this up or is it in the charter somewhere?

Cheers
MacGuiver


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## nxnw (Dec 22, 2002)

pelao said:


> The Charter was was ratified as an agreement, as a Charter, not as a law. The Charter is a binding agreement. It is certainly not the supreme law of the land


You are, as they say, out to lunch.

Look up "constitution" in a dictionary (or a middle school social studies book), and get back to us when you know what it means.


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## Pelao (Oct 2, 2003)

> Look up "constitution" in a dictionary (or a middle school social studies book), and get back to us when you know what it means.


You are evolving nicely. Now we are talking constitution, a different but related subject.

You noted earlier



> FYI, the Charter is part of our constitution. It is not only A law, it is the supreme law of the land.


The charter is part of the Constitution, but it is not THE constitution.


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## Myrddin Emrys (May 24, 2005)

Semantics people... hey, that's what law is all about but we need to clarify a couple of points. The charter is an amendment to the Constitution Act of 1867.

*World Fact Book:*

_Made up of unwritten and written acts, customs, judicial decisions, and traditions; the written part of the constitution consists of the Constitution Act of 29 March 1867, which created a federation of four provinces, and the Constitution Act of 17 April 1982, which transferred formal control over the constitution from Britain to Canada, and added a Canadian Charter of Rights and Freedoms as well as procedures for constitutional amendments._

You see, before 1982 the UK really had a lot of control over many things as outlined in the British North America Act; until the Act in 1982 the BNA Act still ruled supreme in Canadian politics. There are still some interpretations of the Constitution that refers back to the BNA Act if no clarity exists on a subject.

Ok, that is said and done; the importance of a 'constitution' is the ability and right of the standing majority of a country to add or change the basic outlines or principles of the original text of the 'constitution.' The Bush administration is a good example of how the amendments of a 'constitution' can be perverted or changed; there are some people who believe that the U.S. Bill of Rights is a separate piece of legislation from the Constitution.

Anyway... I agree that all proper pronouns be stricken from the public record, but there in lies the problem, such language is needed in some cases to define a situation. And... it is easier to amend such use of language then to rewrite the offending problem.

Words are meaningless without intent, and if the same intent is not observed by all parties then we have a controlled chaos called democracy.


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## da_jonesy (Jun 26, 2003)

MacGuiver said:


> You ladies may have a point there.
> 
> Oh and da-jonesy, the copy of the charter I have in my cave has no mention of a "right to marriage". Are you making this up or is it in the charter somewhere?
> 
> ...


You neglected to read the cave scrawl (section 15. (1) ) where it says...

_"Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."_

By this statement... any law (ie. marriage law) applies equally to any Canadian citizen. 

So... two men who want to practice hot man on man monogamy may do so with the full benefit of any laws pertaining to marriage in the land.

Rub those two sticks together.


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## Pelao (Oct 2, 2003)

One of the things we need to be aware of is that the Constitution Act(s) can be amended by Parliament, but that the Charter, although incorporated into the Constitution, is much harder to change. 

There are those that argue that the Charter is unnecessary, that we made it thus far without such a thing and should just rely on parliament to evolve the Constitution as it sees fit.

It seems to be that in an uncertain world its better to have the Charter than not.


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## MacDoc (Nov 3, 2001)

Even corporations are subject to minority shareholders protections.

This can all be put to be by calling all such unions civil unions IN LAW.

It's a* legal* definition.


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## Fink-Nottle (Feb 25, 2001)

It's shocking that in 2005 there are some who still want a few wise philosopher kings (like Trudeau?) to protect them from the evils of democracy. Did the Enlightenment just pass you people by? Why not find who the smartest person in Canada is and make him or her an absolute monarch... we'll get rid of this noisy, messy system all together.

NXNW... your post is full of fallacies. The Charter of Rights says absolute nothing about sexual orientation or the rights of homosexuals. Since 1982, the Supreme Court has made a series of rulings that have in effect, extended the Charter to give them them similar rights to other 'minorities'. If you had read my posting more carefully, you would see that I do not disagree with the results of these rulings... I support 'same sex marriage' as a human right. However, I strongly disagree with the idea that these decisions should be made by an unelected, unaccountable group of nine people rather than by the people we elect. Despite what you say, our legislatures and Parliament had nothing to do with these decisions. I think that's a big reason that these rights are now at risk if a government hostile to them is elected.

Macdoc... I take your point about two classes of marriage. But I think that over time the 'Civil Partnership' will come to be known as a gay or same-sex marriage. In fact the BBC article already describes it as such. In twenty years most people will have forgotten this debate.


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## DEWLine (Sep 24, 2005)

I think I will thank Pierre Trudeau on this one. _Fervently._


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## Beej (Sep 10, 2005)

Fink-Nottle makes an important point regarding which segments of society were identified in the 1982 document. The Supreme Court in Canada takes a broad interpretation to the Charter, which is one approach, but not the only approach. The other approach isn't bigotted or morally inferior, it's just not common in Canada (whether by political construction or otherwise). 

I lean towards Pelao's view. In my opinion, weak politicians write intentionally vague documents that sound great in their speeches but don't provide enough direction, leaving too much up to the courts and too little up to our representatives. This goes way beyond the vague 'reasonable person' legal standard that has a history behind it.

I agree with the Supreme Court decision, but would prefer more political diligence so that if I didn't intellectually agree with the court's approach I could still trust them to a reasonable interpretation of more tightly worded documents passed in parliament.


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## DEWLine (Sep 24, 2005)

MacGuiver said:


> That clarity is now gone.


I don't see how.


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## SINC (Feb 16, 2001)

Beej said:


> I lean towards Pelao's view. In my opinion, weak politicians write intentionally vague documents that sound great in their speeches but don't provide enough direction, leaving too much up to the courts and too little up to our representatives.


:clap::clap::clap:


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## MacDoc (Nov 3, 2001)

> will come to be known as a gay or same-sex marriage


That's the point entirely - it can be called whatever in the sociological environs. Call it getting hitched, tieing the knot, the terms are endless and fascinating and enrich our society - who cares.

LEGALLY - one term. 

Start a poll - ask all those that oppose the current situation if THEY would accept civil union as the ONLY legal description of a union between two persons. 

••••••

BTW given we are tribal animals and have evolved with leaders and alphas then the concept of technocracy is not so far fetched.
It's recognizing the reality.

How come it's okay in corporations, the military notably, police and fire service and football and hockey teams as a functional process.

The key in my mine is checks on unbridled or irresponsible power - in other words a means to depose tyrants and protect minorities.

Benign "strong men" often accomplish far more for their societies than rule by committee.

The Charter provides the protection for minorities with the courts interpreting legislation by the elected body to keep that protection in effect.

The democratic process provides a check on abuses - one thing I don;t like about fixed election dates.
George Bush would have been defeated in a parliamentary system by this point most likely or at least had to face that challenge.

So rule by philosopher kings that are deposable likely fits many humans idea of good gov


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## Pelao (Oct 2, 2003)

> However, I strongly disagree with the idea that these decisions should be made by an unelected, unaccountable group of nine people rather than by the people we elect. Despite what you say, our legislatures and Parliament had nothing to do with these decisions. I think that's a big reason that these rights are now at risk if a government hostile to them is elected.


Again, well put.


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## SINC (Feb 16, 2001)

Macdoc said:


> Start a poll - ask all those that oppose the current situation if THEY would accept civil union as the ONLY legal description of a union between two persons.



Marriage = one man plus one woman

Union = two persons of the SAME gender

The differences demand a description for clarity.


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## Beej (Sep 10, 2005)

Sinc: don't tell me I can't get union'd just because I'm heterosexual. Marriage has such ugly conotations (Married with Children TV show), so I would prefer the other term.


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## MacDoc (Nov 3, 2001)

Not under law they don't.

Child
Person
Judge
Law officer
Officer of the court

Where is the gender?? - not there.
One LEGAL term and you can damn well bet that short of a majority Con gov using the not withstanding clause - it will stay that way.


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## SINC (Feb 16, 2001)

Beej said:


> Sinc: I would prefer the other term.


Fine, I assume you are gay then, correct?


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## RevMatt (Sep 10, 2005)

Must be a generational thing. I know many hetero couples who are not married, and are not going to be.

We have arrived at this complication because we enshrined a term with religious origins in law, and religions don't rule the world any more. So, the law demands that all legal terms be equally applied. The suggestion that we take marriage out of the law altogether is not a bad one, actually, but it is certainly the only way to restrict it's application.

Personally, I fail to see why anyone needs a specific term to describe their relationship as heterosexual. Is being mistaken for homosexual a scary thing?


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## Beej (Sep 10, 2005)

SINC said:


> Fine, I assume you are gay then, correct?





Beej said:


> don't tell me I can't get union'd just because I'm heterosexual


I know my wording was not too good, but I majored in economics so I blame the invisible hand.


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## SINC (Feb 16, 2001)

RevMatt said:


> Personally, I fail to see why anyone needs a specific term to describe their relationship as heterosexual. Is being mistaken for homosexual a scary thing?


I think you have hit on it exactly RevMatt. Now that I think about it, that is very likely the one thing that most who oppose same sex marriage fear. "To be lumped in with what, 2% of the population?" is perhaps what scares them most. To be part of the majority is one thing, the tiny minority quite another.


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## nxnw (Dec 22, 2002)

Pelao said:


> One of the things we need to be aware of is that the Constitution Act(s) can be amended by Parliament, but that the Charter, although incorporated into the Constitution, is much harder to change.


I don't know where you got these ridiculous ideas, but they are bizarre and utter nonsense. Please don't post any more of this disinformation. 

As of 1982, the constitution cannot be amended by a unilateral act of parliament. The amending formula is right in the constitution. This is trite law.

BEFORE THE CONSTITUTION WAS PATRIATED, the convention - which was adhered to - was that the constitution could not be amended without unanimity among the provinces and federal government. The constitution has never been amended at the sole instance of the federal government.

Shortly before patriation, the federal government asked the supreme court if unanimity was required. The supreme court ruled that, in fact, the federal government could - at that time - amend the constitution without the provinces consent. The 1982 amendment was, in any event signed off on by 9 provinces and specifically enacted the amending formula (AS WELL AS THE CHARTER).


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## MacDoc (Nov 3, 2001)

In law it has nothing to do with sex and everything to do with union so call it that and be done.

Marriage is a sociological and historical term that happens to have been used in law.
We got rid of indentured and slave as legal terms, lose the legal term marriage in the same way.

Hey the legal term for women used to be chattel. .

•••

BTW if you include bi-sexual and unidentified I'd say the actual population proportion would be substantially higher and some serious studies identify over 20% as not exclusively heterosexual tho I'd like to find some more current numbers.

It really does not matter - for legal purposes - it's a person.....or two persons.
Gender neutral.


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## Max (Sep 26, 2002)

I dunno. I get lumped into larger, more ambiguous groups all the time and somehow I manage to live through it quite handily. The tall guys. The tall bald guys. The white guys. The artistes. The photographer/shutterbug/whatever. The self-employed. The middle-aged. The Torontonian. The east-ender. The Canuck. Just another Scots heritage schmuck. The internet chatmeister. The online dewd.

You know, everyone gets typecast at one time or another. I try not to lose too much sleep over what other people think I am, or am not. I suggest you do the same. You'll live longer, Sinc!

Do we really need legislation to protect us from stranger's perceptions of us, erroneous or otherwise?


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## MacDoc (Nov 3, 2001)

Actually this is a good resource.

http://www.plu.sg/main/facts_05.htm

some highlights so people know the size of this minority. This is no small group.



> Quotes:
> 
> The 1993 Janus Report, the first broad-scale scientific national survey on sexual behavior since Kinsey, concluded that 9% of males and 5% of females had had homosexual experiences more than just "occasionally."
> 
> ...


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## nxnw (Dec 22, 2002)

Fink-Nottle said:


> NXNW... your post is full of fallacies. The Charter of Rights says absolute nothing about sexual orientation or the rights of homosexuals. Since 1982, the Supreme Court has made a series of rulings that have in effect, extended the Charter to give them them similar rights to other 'minorities'... Despite what you say, our legislatures and Parliament had nothing to do with these decisions. I think that's a big reason that these rights are now at risk if a government hostile to them is elected.


Really? The Charter does not limit equality to the enumerated characteristics. Read carefully


> 15. (1) *Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination* and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.


 I have added the emphasis. This principle is not restricted to the enumerated characteristics, and nobody who might find himself in the SCC arguing a Charter cases would seriously argue that it is. Such a mechanical interpretation would render the section sterile and, ultimately, make a joke of it.

Secondly, I find extremely offensive the conceit that the Supreme Court legislates. These judges interpret law. This is a solemn responsibility, and we have been fortunate to have a court that does honour to this responsibility. 

In Egan, the court _rejected_ a claim that the definition of spouse under the Old Age Security Act was unconstitutional, but this is what the majority said about s.15, and sexual orientation.


> To establish that claim, it must first be determined that s. 15's protection of equality without discrimination extends to sexual orientation as a ground analogous to those specifically mentioned in the section. This poses no great hurdle for the appellants; the respondent Attorney General of Canada conceded this point. While I ordinarily have reservations about concessions of constitutional issues, I have no difficulty accepting the appellants' contention that whether or not sexual orientation is based on biological or physiological factors, which may be a matter of some controversy, it is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs, and so falls within the ambit of s. 15 protection as being analogous to the enumerated grounds.


The minority, of course, also held that s.15 protects against discrimination on the basis of sexual orientation. 


> This Court has recognized that inherent human dignity is at the heart of individual rights in a free and democratic society: Big M Drug Mart Ltd., supra, at p. 336 (per Dickson J. (as he then was)). More than any other right in the Charter, s. 15 gives effect to this notion. Building upon this foundation, I believe that the essence of "discrimination" was largely captured by McIntyre J., speaking for the majority of the Court on this point, in Andrews, supra, at p. 171:
> 
> It is clear that the purpose of s. 15 is to ensure equality in the formulation and application of the law. The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration. [Emphasis added.]
> 
> Equality, as that concept is enshrined as a fundamental human right within s. 15 of the Charter, means nothing if it does not represent a commitment to recognizing each person's equal worth as a human being, regardless of individual differences. Equality means that our society cannot tolerate legislative distinctions that treat certain people as second-class citizens, that demean them, that treat them as less capable for no good reason, or that otherwise offend fundamental human dignity.


The case, as do many others analyzes the difficult question of what section 15 means, and how courts determine whether equality rights have been violated. Nobody can read this case in good faith, understand it, and conclude that any of these judges is simply following his or her politics, as opposed to duty..


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## MacDoc (Nov 3, 2001)

And the language is masterfully gender neutral :clap:


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## da_jonesy (Jun 26, 2003)

That is twice Section 15 (1) has been quoted in this thread once by me and by NXNW.

I am at a loss to explain how some of the people responding to this thread cannot comprehend how clear the charter is in this regards.

I am going to post it again...

*15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. *

So if we look at it more carefully...

_15. (1) Every individual is equal before and under the law _

That means EVERYONE

_and has the right to the equal protection and equal benefit of the law without discrimination _

HAS EQUAL RIGHTS AND BENEFITS under the LAW (ie. the right to marry... please see http://www.e-laws.gov.on.ca/DBLaws/Statutes/English/90m03_e.htm This is the Ontario Marriage act. Specifically this part...

Who may marry
5. (1) Any person who is of the age of majority may obtain a licence or be married under the authority of the publication of banns, provided no lawful cause exists to hinder the solemnization. R.S.O. 1990, c. M.3, s. 5 (1). )

_and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability._

AND YOU CANNOT DISCRIMINATE AGAINST ANYONE (including their gender).

Sorry it CANNOT BE MORE CLEAR.


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## Fink-Nottle (Feb 25, 2001)

> Such a mechanical interpretation would render the section sterile and, ultimately, make a joke of it.


That's ridiculous... our Charter is a legal document, not a novel Where does it end?

-Polygamists are are equal under the Charter... should they be able to marry multiple spouses?
-Children are equal under the charter... can they marry, vote? Can older people marry children?
-Muslims are equal under the charter... do they have the right to be judged under Shariah law if they choose?

Don't answer me... it doesn't matter what you think or what I think or even what our Parliament thinks (unless it opts to invoke the dreaded 'Notwithstanding Clause'. It only matter what the Judges think.

I suspect that you don't see the problem because you are largely in agreement with their decisions. But what happens when the pendulum swings and Harper or someone like him starts appointing more conservative judges who slowly whittle away or overturn the current court's decisions on 'same sex marriage' and other matters. What recourse do you have? What will you do? Or is your faith in our system strong enough that you'll go along with the Judges because they know best.



> Secondly, I find extremely offensive the conceit that the Supreme Court legislates.


Dont' be offended. That's just sanctimony... a common Liberal response when anyone is foolish enough to attack their views.


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## nxnw (Dec 22, 2002)

Fink: I am in discoveries all day and will not have the opportunity to respond to these pearls of wisdom until this evening, at earliest. 

In the interim, you can demonstrate that your the vigour of your opinions is matched by your breadth of knowledge, by explaining why, in fact, none of the three examples you cite would be be a sound basis for a Charter case.


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## SINC (Feb 16, 2001)

Fink-Nottle said:


> That's ridiculous... our Charter is a legal document, not a novel Where does it end?
> 
> -Polygamists are are equal under the Charter... should they be able to marry multiple spouses?
> -Children are equal under the charter... can they marry, vote? Can older people marry children?
> ...


Exactly! F-N gets it! :clap:


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## MacDoc (Nov 3, 2001)

The judiciary is ONE of the pillars of a democracy and has certain powers and also restrictions.
Democracy will always result in tensioning between the wishes of competing groups and the interplay between legislators who draft laws, judges who interpret those laws under the Charter and the public who may challenge legislation and ask the court to rule or toss the legislators at the next election to try for change.

*Judge* is the key word. 
By it's very nature it implies that at times there is uncertainty in human actions and arrangements and it asks a learned group to interpret the rather loosely worded Charter ( on purpose ) and the body of precedent and common law and pass judgement in the specific case.
Don't like the outcome, there is an appeals process and ultimately it can go up the line so it's not just one person but a group - the supreme court. 
But it's still a judgement call.

The judiciary is a check on the legislators and the check on the judiciary is that they cannot draft laws.

I wasn't thrilled with the private medicine ruling but give and take is part of the democracy.
I am pleased that minorities have quite strong protection.

Regarding your "list"
A group of people can have sex with whom ever they please and in social terms...."marry" how they please.
The legal implications of that in terms of beneficiaries and tax law rests on the definitions.

A group joined in such a way may come under a different set of legal entitlements and restrictions just as corporations, non profit corporations, partnerships have different benefits and restrictions.

There may well come a challenge on "age" discrimination notably there is already on retirement.

The idea is to have a "process" that can at least make an attempt to resolve these challenges within the structure and guidance of the Charter, the legislators and the judiciary.

Sharia is covered under "one law" for all as McGuinty, correctly in my mind, acted on. 
Of course Muslims may *choose* to be bound by their own custom but it fails to have the force of law the way say an order for child support has.

You can't please all the people all the time, that's a given, so we need a *process* that protects minority opinion and practice and provides a means to address inequity and provide guidance to individuals and groups on legally acceptable actions and arrangements.

ie the body of law regarding lotteries and games of chance

Ours is pretty good "process" and I DO like our overarching Charter. :clap:

••

nxw I'll be very interested to hear your insight on why that list would not likely engender a Charter challenge.


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## SINC (Feb 16, 2001)

MacDoc said:


> Ours is pretty good "process" and I DO like our overarching Charter. :clap:


Ours, in circumstances of judges making laws is a bad "process" and I DO NOT like our overarching Charter.


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## Dr.G. (Aug 4, 2001)

I feel safer with our "overarching" Charter of Rights and Freedoms. I don't see the judicial system as being too proactive at making laws via their decisions.


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## SINC (Feb 16, 2001)

Dr.G. said:


> I feel safer with our "overarching" Charter of Rights and Freedoms. I don't see the judicial system as being too proactive at making laws via their decisions.


If you're comfortable with it, good for you. I can respect that, but when others take issue with my discomfort with it, I react. Nothing is perfect, but to intentionally NOT recognize its shortcomings does no good either.


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## Beej (Sep 10, 2005)

SINC said:


> If you're comfortable with it, good for you. I can respect that, but when others take issue with my discomfort with it, I react. Nothing is perfect, but to intentionally NOT recognize its shortcomings does no good either.


:clap:


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## MacGuiver (Sep 6, 2002)

Fink-Nottle said:


> That's ridiculous... our Charter is a legal document, not a novel Where does it end?
> 
> -Polygamists are are equal under the Charter... should they be able to marry multiple spouses?
> -Children are equal under the charter... can they marry, vote? Can older people marry children?
> ...



Fink. You nailed it! 

Here are a few more inequalities.
Native Canadians are equal yet they get tax breaks others don't, a different set of hunting regulations, free education right up to University etc. etc.
How can you justify affirmative action where WASPs need not apply?

I don't disagree with these policies but if its as Black and White as these guys are claiming it is, these are blatant violations of Equality for All.

Cheers
MacGuiver


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## MacDoc (Nov 3, 2001)

> Native Canadians are equal yet they get tax breaks others don't, a different set of hunting regulations, free education right up to University


That's a complete red herring as it deals with treaty rights and in some cases sovereign nations.

Sinc - for 80th time - JUDGES DON'T MAKE LAWS legislators do.


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## SINC (Feb 16, 2001)

MacDoc said:


> Sinc - for 80th time - JUDGES DON'T MAKE LAWS legislators do.


And once again (the 81st?) I say you are dead wrong. They do, no question about it, and in far too many cases.


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## MacDoc (Nov 3, 2001)

Name one law the judiciary have WRITTEN.
They can't and don't. It's fundamental.

And are you going to agree to civil union for ALL as the only legal term????
If not, why not??


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## RevMatt (Sep 10, 2005)

SINC said:


> And once again (the 81st?) I say you are dead wrong. They do, no question about it, and in far too many cases.


They discard old laws, and, when governments fail to react, occasionally even instruct what the new law should be. In so far as they discard the old one and force a new one to be made, I agree with you, Sinc. I just don't have a problem with it. And, for the record, there have been several decisions of late that I haven't liked. But the law is not what about what I like, it is about what we have compromised on as a set of overarching principles, namely the charter. Do I always like how it is applied? No. But that is the nature of compromise.


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## MacDoc (Nov 3, 2001)

Yep - they will advise the legislators if asked on how to draft a new law to conform with the constitution.

ABSENCE of legislation is not the fault nor responsibility of the court...it's in the legislators mandate.


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## SINC (Feb 16, 2001)

MacDoc said:


> Yep - they will advise the legislators if asked on how to draft a new law to conform with the constitution.
> 
> ABSENCE of legislation is not the fault nor responsibility of the court...it's in the legislators mandate.


But the fact remains they FORCE legislators to write new laws and in my book that is equal to writing the law. Simple as that.


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## Dr.G. (Aug 4, 2001)

Sinc, it is the Charter of Rights and Freedoms AND the courts that protect our right to disagree, and to openly discuss this disagreement in a civil manner. Re your comment "But the fact remains they FORCE legislators to write new laws and in my book that is equal to writing the law", this is a role of the Supreme Court, be it here or in the US. I think that strict constructionists interpret the Charter with exactness, while other Sup. Court judges allow for a wider interpretation. Thus, the Charter evolves rather than to remain static.


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## SINC (Feb 16, 2001)

I understand the evolvement process. I just don't happen to like _the way_ it is evolving.


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## Dr.G. (Aug 4, 2001)

Sinc, it goes both ways. I know that if I was in the US I would be fearful over the strict interpretations, and even worse, the strict reinterpretations (e.g, Roe vs Wade) that are taking place.


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## SINC (Feb 16, 2001)

I agree. My fear is that a handful of people are forcing their views on the entire country, and that is not what should be happening. Decisions should be made by a body of elected representatives, not "learned judges" and any court, including the Supreme court should be responsible to that body, not vice versa.


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## Dr.G. (Aug 4, 2001)

Sinc, I would rather not see the US Supreme Court overturn Roe vs Wade. Still, here in Canada, the Supreme Court certainly turned things upside down with its ruling in a Quebec case re timely healthcare. So far, the ruling only has clout in PQ, but other provinces shall be brought into the situation. I think that this is one reason why all parties are focusing upon health care as the #1 issue.


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## nxnw (Dec 22, 2002)

Fink-Nottle said:


> That's ridiculous... our Charter is a legal document, not a novel Where does it end?
> 
> -Polygamists are are equal under the Charter... should they be able to marry multiple spouses?
> -Children are equal under the charter... can they marry, vote? Can older people marry children?
> -Muslims are equal under the charter... do they have the right to be judged under Shariah law if they choose?


I guess you haven't figured it out yet (although I didn't give you as much time as I expected. One could write pages on this, but here are my short answers, standing on one leg and without research:

- Polygamy is a practice, not a characteristic that is analogous to the enumerated grounds (or might otherwise fall within the guidelines mentioned in the case law). So, Polygamists do not fall under s.15.

- Children certainly fall under s.15, but, among other things, the enquiry would continue to s.1 of the Charter providing that the rights and freedoms are subject to, "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". Think that would be hard to do?

- Muslims also certainly fall under s.15. In your example, however, there is no right, protected by the Charter, being infringed. You say, "do they have the right to be judged under Shariah law if they choose". There is no law stopping Muslims from voluntarily going to Shariah courts and voluntarily accepting a decision of a Shariah court. The judgments are not legally enforceable, however.


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## nxnw (Dec 22, 2002)

The quality of the discourse in this thread is very unfortunate. Lots of people have expressed extremely misguided opinions of what judges do, what the Charter means, how constitutional law works, etc. that telegraph a woeful lack of knowledge on the subject. It is clear that none of Sinc, Pelau, and Fink has more than a superficial familiarity with what the Charter says, and even less familiarity with any of the case law. Have any of you ever even read a Charter case (or any case)?

Your gross disrespect to our Supreme Court is unconscionable, and I am indeed offended by it. These judges have a grave and solemn responsibility to interpret the law, and you need only to read some of their decisions to see:
- the Court's frequently expressed concern that the Charter be interpreted with genuine intellectual rigour, to ensure that lower courts NOT use it like a rights dollar store, where every perceived (or even real) injustice gets a remedy;
- that the Court does restrict itself to its duty to interpret law;
- that the Court even avoids answering questions that are not necessary to fulfill their mandate on a given case.

You do not have to agree with their decisions, but have the decency to be intellectually honest. Don't rake these judges over the coals and accuse them of legislating when you have not read or understood the decision you are complaining about.

Finally, someone said, "our Charter is a legal document, not a novel", expressing, as far as I can tell, that its meaning is not subject to interpretation. Yes, it is not a novel, but it's not "Curious George" either. Law is complicated. Equality rights are complicated. Somebody has to interpret the law and determine how it applies to different facts. Whose job is this? Judges.

So, while you are whining that legislators should be able to make any law they like, without judges potentially looking over their shoulders, make no mistake: It's not the judges, it's the Charter you don't like. If you don't like the idea of judges being able to declare a law unconstitutional, be honest and campaign to revoke the Charter. 

Of course, if you did that, you'd look like a fascist, so instead, you attack honest, devoted public servants for doing their jobs.


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## SINC (Feb 16, 2001)

nxnw said:


> so instead, you attack honest, devoted public servants for doing their jobs.


Judges are former lawyers, and the ones I trust are few and far between. One thing the Charter does give me is the right to disagree with anything I choose, especially judges, without any change to its present form or any campaign for revoking it necessary.

I too can claim to be offended by your support of a bad court system, but unlike you, I won't go that far as it would show disrespect for your views.

Works both ways you see.


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## Carex (Mar 1, 2004)

Having read this thread, but not participated, I would like to commend nxnw for his informative and well laid out posts. 

Carry on.


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## nxnw (Dec 22, 2002)

SINC said:


> Judges are former lawyers, and the ones I trust are few and far between. One thing the Charter does give me is the right to disagree with anything I choose, especially judges, without any change to its present form or any campaign for revoking it necessary.


Way to go, tarring 10s of thousands of Canadians you've never met with one quick stroke.

Are you really saying that the judges on our Supreme Court are untrustworthy or stupid? I bet you couldn't even name one of them without Google, I bet you haven't read even one of their cases, yet you don't hesitate to condemn them.

Bigoted, ignorant opinions are no substitute for knowledge and thoughtful reason.


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## MacDoc (Nov 3, 2001)

The Charter may convey equality.....unfortunately it is unable to do the same for common sense.


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## nxnw (Dec 22, 2002)

Fink-Nottle said:


> I suspect that you don't see the problem because you are largely in agreement with their decisions. But what happens when the pendulum swings and Harper or someone like him starts appointing more conservative judges who slowly whittle away or overturn the current court's decisions on 'same sex marriage' and other matters.


FYI, 8 of the 9 judges on the Egan case were Mulroney appointments. The ninth, Lamer CJC, was appointed by Trudeau, but was made CJC under Mulroney.

(Egan was the first SCC case where the Court said that s. 15's protection of equality without discrimination extends to sexual orientation)


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## SINC (Feb 16, 2001)

nxnw said:


> Way to go, tarring 10s of thousands of Canadians you've never met with one quick stroke. Are you really saying that the judges on our Supreme Court are untrustworthy or stupid?


Of course not, but through history most political leaders were once lawyers. Too many of them (political leaders) are not trustworthy or plain dishonest, Chretien (abolish GST promise broken) in particular. Political leaders appoint judges who were lawyers. Draw your own conclusions.


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## Pelao (Oct 2, 2003)

> Your gross disrespect to our Supreme Court is unconscionable, and I am indeed offended by it.


That's an awfully high horse you have mounted. Relax! Teasing!

I don't disresepct the court, and do not feel I have written anything that shows disrespect. I have no reason to disrespect it or it's members. I have not yet disagreed with any decisions with which I am familiar. If I did disagree I would express that, but would assume the court has done as you say, namely apply itself to interpreting the law.



> Don't rake these judges over the coals and accuse them of legislating when you have not read or understood the decision you are complaining about.


I did not complain about the court and the decision - I did complain about politicians not being leaders. I feel they avoid issues that may be contentious.



> So, while you are whining that legislators should be able to make any law they like, without judges potentially looking over their shoulders, make no mistake: It's not the judges, it's the Charter you don't like. If you don't like the idea of judges being able to declare a law unconstitutional, be honest and campaign to revoke the Charter.


I did not say legislators should be able to make any law they like. Heaven forbid. I also never complained about the Charter. It was, perhaps, long overdue. I am proud of it.


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## Fink-Nottle (Feb 25, 2001)

Sorry I took so long to get back you NXNW... as a non lawyer I'm only able to argue in my spare time. 



> One could write pages on this, but here are my short answers, standing on one leg and without research:


Indeed... that would explain the lack of balance. Seriously though, none of your reasoning is watertight. If Polygamy is a practice rather than a characteristic, then surely it could be argued that homosexuality is a practice as well. A few Conservative judges (and by the way, Mulroney was hardly a Conservative on social issues) could easily buy into that argument. And who decides what laws "can be demonstrably justified in a free and democratic society"? That too would be the Judges' decision.

Your latest post accuses me and others of "unconscionable" disrespect to the court and by implication, the judges... yet I have searched in vain for anything that is remotely disrespectful. Can you show us what you consider to be disrespectful? Do you think us rude just for questioning the way we are governed? Or as a lawyer, are you just angling for a promotion here?

Let me ask you a question. Do you feel that the best possible system for selecting Supreme Court Judges is to have them be appointed by the Prime Minister? A lot of my concerns (although not all) would be assuaged if Parliament had to confirm the appointment (as the Senate does in the US) or if the public was given some say. Admittedly, in the US it can be an ugly spectacle... but democracy isn't always pretty. As a lawyer, I'd be interested in your professional opinion... how should Supreme Court Judges be selected?


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## ArtistSeries (Nov 8, 2004)

Fink-Nottle said:


> Your latest post accuses me and others of "unconscionable" disrespect to the court and by implication, the judges... yet I have searched in vain for anything that is remotely disrespectful. Can you show us what you consider to be disrespectful? Do you think us rude just for questioning the way we are governed?


Then you just don't get it and likely never will.
I agree with nxnw on what he's articulating here -


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## Beej (Sep 10, 2005)

I'm not sure about the existence of disrespect but, even if it does exist, what's wrong with polite disrespect (polite being a vague concept)? 

With the amount of anti-(insert anything) going on here, as long as we maintain basic manners, no profession gets special protection. We have all seen basic disrespect for some idea/profession/institution/etc. and, in general, we defend what we like.


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## sccoaire (Feb 11, 2005)

I'm quite impressed with everyone's messages in this thread. The amount of knowledge and the quality of expression makes for a very good read. Of course, I can't follow most of it. I have very limited knowledge of the Charter Of Rights and our Political and Judiciary system. As a Canadian, I should be more knowledgeable of such things, but I fear my native French, on top of my 6 years in the States going to college, mixed and blurred all of this political stuff. But here's my 2 cents anyway. 

Being part of that minority myself, it gives me great life fulfillment to know that I now have the _choice_ to marry the person I love. What other word would you use, if I were not able to say marriage? To "same-sex union" the person I love? To "unionize" with the person I love? This is why it is quite important for me to have “same-sex” as part of the definition of the word "marriage". To marry, to wed, is the most recognized act between 2 people. There should not be, in any situation, a clarification or distinction made as to whether a "married" couple is gay or straight. 

For all of you out there opposing this new law, know that I understand your opposition and respect your point of views. But in turn, understand that you are NOT the minority. Only an individual from the minority who would be against same-sex "marriage" would have an opinion worth listening to, in my book... and I expect he/she would be paid huge amounts of money under the table to stand as such.


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## MacDoc (Nov 3, 2001)

Equality.

The London Times has trumpeted itself as "oh so progressive" - it now has a *separate* section for Britain's civil partnerships - previously it would not even publish gay intents to marry.

In the Massachusetts 2 years ago the Chief Justice put it perfectly.



> The majority based the decision on the equal protection and due process provisions of the Massachusetts constitution, saying they guarantee the right for same-sex couples to marry. *The ban against gay marriage, like the earlier ban on interrace marriage, is rooted in prejudice,* Chief Justice Margaret H. Marshall wrote for the court.


IF the Times chose to put a separate section in place for say Indian unions while all the others were announced as "marriages"......how loud the howls of protest would be.

I'm only partly blaming the Times - they ARE following the legislation after all.

What it points out is the second class citizen aspect that arises in the social sphere from using two differing terms in the legal sphere.....it's odious and demeaning.

Massachusetts got it right, Canada got it right. Equality.

Britain erred badly in mind.

••

As to judges.
I'm not much fond of lawyers either in the main due to their self serving insistence on the adversarial system in particular in family law tho that is showing some change. 

In my mind, far more attention to facilitating cooperative resolutions needs be engendered - perhaps that why we have a fractious adversarial parliament - given the lawyer %. 

That said the judiciary is an independent institution and at the highest levels I feel the nation is well served by having critical issues and legislation reviewed by knowledgeable experienced experts who are able to make these judgements free from the pressure of their career depending on political whimsy.

Certainly a PM will tend to appoint judges with aligned with gov views but they remain independent and subject to the scrutiny of their peers. Aligning views makes the passage of legislation easier as after all the purpose of the legislator is to govern despite appearances to the contrary of late thanks to the opposition.

But those appointments to the Supreme Court also are a legacy that needs careful thought as they don't fall with the government as with other civil service positions and the appointments reflect on the quality and sense of the leadership. The appointments are also reviewed by a multiparty committee including a judiciary component.

Could the appointment process be "better"??? - a difficult term. It would appear that's the recommendation of the Committee appointed to examine the process

http://www.justice.gc.ca/en/dept/pub/scc_courtsup/



> The Interim Ad Hoc Committee on the Appointment of Supreme Court Judges (“the Committee”) was created for the purpose of reviewing the candidacy of the persons — Madam Justice Rosalie Abella and Madam Justice Louise Charron — recommended for appointment to the Supreme Court of Canada. The Committee was put in place on the understanding of the House Leaders of all parties that it was an interim body to complete a review so that two vacancies on the Supreme Court could be filled before the Supreme Court begins its sittings on 4 October 2004. The Committee recognizes that the authority to make Supreme Court appointments is constitutionally vested in the Governor in Council. Accordingly, the role of the Committee was purely an advisory one.
> 
> The majority of the Committee’s members were elected Members of Parliament, consisting of three members of the Liberal Party of Canada, two members of the Conservative Party of Canada, one member of the Bloc Québécois, and one member of the New Democratic Party. In accordance with the written understanding of the political parties, the Committee also included a representative of the Canadian Judicial Council and a representative of the Law Society of Upper Canada. The Committee was subject to special rules of procedure, which were agreed upon by all the parties represented in Parliament. Those parties had also agreed that the hearing of the Committee was to be as open and transparent as possible, while ensuring the integrity of the process. This written understanding is attached as Appendix A to this report.


It goes on to explore shortcomings of it's review procedure and make recommendations for improvements.
*THIS is the kind and style of governance I heartily approve of.* :clap:

I think in the appointment of the committee, it's makeup and recommendations speak highly of our institutions.
The willingness to review, consult and recommend with input from all parties plus the judiciary.

The process itself speaks well to the nature of the high court.

I would like to see the legislative structure as a whole undertake it's duties in such a cooperative and sensible manner instead of the often tawdry and needlessly adversarial positioning and one-up-manship that goes on in the House of Commons.

We DO have a balance between philosopher kings and the mob. I'm not concerned about the skill or decorum of the former. They should indeed have our respect and admiration.

After all- look who they have to deal with.


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## Fink-Nottle (Feb 25, 2001)

Hi Macdoc,



> Massachusetts got it right, Canada got it right. Equality.
> 
> Britain erred badly in mind.


I think it's too early to tell... the British situation is stable but ours is not. The Conservatives are promising to revisit the issue and if it gets reversed, a distinct possibility, then we most assuredly have got it wrong. A parliamentary compromise would have stood a much better chance of surviving than a Supreme Court order... but let's hope it doesn't come to that.

I disagree that a 'Civil Partnership' is somehow second class. Most of the gay people I know here are pretty ambivalent about the institution of marriage generally and are quite insistent that a 'same sex marriage' is something different. It seems to be well meaning straight people who don't accept this view.


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## planders (Jun 24, 2005)

Fink-Nottle said:


> Hi Macdoc,
> 
> 
> I think it's too early to tell... the British situation is stable but ours is not. The Conservatives are promising to revisit the issue and if it gets reversed, a distinct possibility, then we most assuredly have got it wrong. A parliamentary compromise would have stood a much better chance of surviving than a Supreme Court order... but let's hope it doesn't come to that.
> ...


Probably not too wise to dive into this discussion, but what the heck...

The so-called "same-sex marriage act" passed this year is a model of Canadian lawmaking, as far as I'm concerned. It adds recognition of a gender-neutral right to CIVIL marriage that is clearly required by the Charter (as has been explained many times here, at great length), while also preserving the rights of religious organizations to continue to solemnize marriages in accordance with their beliefs.

Should the Conservatives reopen this issue, how exactly will they reaffirm the "traditional" definition of marriage, when it is absolutely clear that this is contrary to the Charter? The only way is by using the "notwithstanding" clause to explicitly take a right away from a specific minority group--thereby enshrining their bigotry for the world to see. Or, they could do what has been suggested elsewhere: get the government out of the "marriage" business altogether, leaving it to the churches. The government could offer nothing but civil unions. But of course, no one would ever say they're getting "civil unioned", and the distinction would quickly be lost--leaving us right where we are now, for all intents and purposes.

The Conservatives don't have a chance on this issue, though: the best they can hope for is a slim minority government, and both the NDP and the Bloc are opposed to reopening this issue. Even with a truly free vote, there are definitely enough votes to keep things just as they are.

I haven't heard a single argument against gay marriage that doesn't smack of bigotry or ignorance. Likewise, I've never heard a single reasonable argument for how the simple presence of gay marriage can somehow diminish the value of a "traditional" heterosexual marriage, or how allowing gay marriage will lead to legalizing polygamy, pedophilia or bestiality. Let any two people who want to get married do so. Just because many gays are ambivalent about the concept (as are many heteros these days) makes no difference where civil rights are concerned.


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## Pelao (Oct 2, 2003)

> hould the Conservatives reopen this issue, how exactly will they reaffirm the "traditional" definition of marriage, when it is absolutely clear that this is contrary to the Charter? The only way is by using the "notwithstanding" clause to explicitly take a right away from a specific minority group--thereby enshrining their bigotry for the world to see. Or, they could do what has been suggested elsewhere: get the government out of the "marriage" business altogether, leaving it to the churches. The government could offer nothing but civil unions. But of course, no one would ever say they're getting "civil unioned", and the distinction would quickly be lost--leaving us right where we are now, for all intents and purposes.


That's what I am not clear on. What was Harper's purpose in raising this? Perhaps it was simply something to satisfy those that are against the new laws, to give them the feeling that he was on their side. I can't see how he can actually deliver something. 

If they were able to use the notwithstanding clause (surely it would not come to that?) then the precedent would be scarey.


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## MacDoc (Nov 3, 2001)

> and the distinction would quickly be lost--leaving us right where we are now, for all intents and purposes.


Right and wrong.......it would be quickly lost - AND it will satisfy the Charter perfectly and getting hitched, handfast, married, will be in the vernacular where it belongs.

So it won't leave us where we are UNLESS those objecting to the current legislation also object to a legal term for all. That's what should have happened in the first place .

I ask again you that support something like the Times offering a separate section - would you support the same discrimination if it was say Indian or Chinese or Jamaicans, or Scots or Irish ( which indeed has been the case in history ) plonked into that section.

It's one and the same bigotry......

Would you call name a judge,or policeman, or legislator or poet something different because are gay.

Walt Whitman....Poet......or Walt Whitman Gay Poet

how would this be for a moniker

President ( gay): Judge (gay) Sidney A. Galton (Portland, OR)

anyone for yellow stars....... 

These judges are all gay - 
Judge Joseph Shiro Biderman (CA) 
Judge Tom Burrows (NY) 
Judge Mary Celeste (CO)
Judge J. Gary Cohen (BC)
Judge Paul G. Feinman (NY) 
Judge Sid A. Galton (OR) 
Judge Linda Giles (MA)
Judge Barry Kohn (CA) 
Judge Mark Leban (FL) 
Judge Robert Lee (FL) 
Judge Sebastian T. Patti (IL)
Judge Jean Rietschel (WA)
Judge Debra Silber (NY)
Judge Michael Sonberg (N

Should they be listed separately, identified as "something else".

Horsepucky.

sccoaire is married.....period.



> Being part of that minority myself, it gives me great life fulfillment to know that I now have the choice to marry the person I love.


You hear it directly, right here from the person MOST affected.
Tell that person straight out they are wrong

Tell them straight out using a different term for their loving relationship isn't discrimination and doesn't hurt.

It IS and DOES.....clearly.

Wake up people.


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## planders (Jun 24, 2005)

MacDoc said:


> Right and wrong.......it would be quickly lost - AND it will satisfy the Charter perfectly and getting hitched, handfast, married, will be in the vernacular where it belongs.
> 
> So it won't leave us where we are UNLESS those objecting to the current legislation also object to a legal term for all. That's what should have happened in the first place .


Unfortunately, I have a feeling that those most opposed to recognizing same-sex marriage would definitely be almost equally offended by the wholesale "elimination" of civil marriage by calling it something else. An awful lot of them (present company excepted, I trust) hold the opinion that any recognition of gay rights at all represents an endorsement of "immoral" behaviour. I think we'd find out really quickly that this is the real heart of the matter, not a simple matter of semantics.

People need to learn to distinguish between what is "moral" (despite many assertions, different groups and people have very different ideas about what fits this category) and what should be "legal."


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## MacDoc (Nov 3, 2001)

So do I think they would oppose it


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## nxnw (Dec 22, 2002)

> > One could write pages on this, but here are my short answers, standing on one leg and without research:
> 
> 
> ... none of your reasoning is watertight. If Polygamy is a practice rather than a characteristic, then surely it could be argued that homosexuality is a practice as well. A few Conservative judges (and by the way, Mulroney was hardly a Conservative on social issues) could easily buy into that argument. And who decides what laws "can be demonstrably justified in a free and democratic society"? That too would be the Judges' decision.


I don't purport my reasoning to be watertight. It is, however, somewhat educated and informed by having actually looked at some of the precedents that would be the foundation of a judicial decision. My opinion, unlike yours, is not founded on supposition, speculation or political views. The most conservative judge (meaning one having personal views that are socially conservative) would not assert that homosexuality is a practice (or a lifestyle choice), unless he ignored the evidence that would be before the court on the issue. If he ignored the evidence, he would be following his personal views rather than doing his duty.

The thing you just don't get, is that Judges don't sit around making decisions based on what they like or don't like. They make decisions governed by principles of statutory interpretation and by following precedent.


> Your latest post accuses me and others of "unconscionable" disrespect to the court and by implication, the judges... yet I have searched in vain for anything that is remotely disrespectful. Can you show us what you consider to be disrespectful? Do you think us rude just for questioning the way we are governed? ..


While laws are obviously subject to interpretation, legal interpretation is not a free for all. It is governed by precedent that judges are bound to follow. Judgments may be coloured to some degree by the leanings of their author and judgments may be wrongly decided, but it is a long stretch from either of these to say that judges will make whatever decision they feel like, based on their personal beliefs. Such a judge would have no regard for the law, but the most essential duty of a judge is to obey the law. It is their most solemn trust and duty.

You and others have stated and reiterated an argument that our highest court consistently breaches this trust, based only on your disagreement with one or more of their decisions. It is an ignorant, groundless claim. It undermines a cornerstone of our society and freedom. It slanders people who serve us with great integrity and intelligence. It is offensive.

An honest and independent judiciary is the bedrock of a free society. An honest and independent judiciary is what stands between a newspaper publisher printing truths that the government doesn't like, and a jail cell. While people make bigoted, foolish remarks about how judges and lawyers are, as a class, untrustworthy, there are plenty of countries where being an honest judge or lawyer is like a death warrant.



> Let me ask you a question. Do you feel that the best possible system for selecting Supreme Court Judges is to have them be appointed by the Prime Minister? A lot of my concerns (although not all) would be assuaged if Parliament had to confirm the appointment (as the Senate does in the US) or if the public was given some say. Admittedly, in the US it can be an ugly spectacle... but democracy isn't always pretty. As a lawyer, I'd be interested in your professional opinion... how should Supreme Court Judges be selected?


The Canadian system has generally served us well and I think that most of the Judges who have sat on our top court since, at least, the 70's have been fine choices. Although nominally, the PM appoints judges to the SCC, he certainly does not make these appointments without input from outside government. This is being tweaked and formalized and should improve the process.

We regularly seek and rely on expert advise when looking for a medical specialist, or even buying a hard drive. That's what the PM does in choosing judges for the SCC.

The US system is a circus and I can see why top talent would choose not to have their personal lives being publicly picked apart as the price of being appointed. The most absurd way to pick judges, also used in the US, is an election.


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## nxnw (Dec 22, 2002)

I don't think the idea of the gov't completely getting out of marriage will work. Among other things, there are lots of laws they can't realistically get out of respecting divorce, bigamy, pensions, etc. Its a long list. 

You can't say, for instance, that no worry about legal divorce, since there's no legal marriage. How do you decide who is married and who isn't, if there is no legal certification? Lots of laws use marriage as a condition of some other right or obligation. It is not necessarily reasonable, practical or appropriate to give "living together" the same weight. 

Then there are international issues. How would you like to have a church wedding here, and not be recognized as married in another country? The consequences could potentially be serious.


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## MacDoc (Nov 3, 2001)

:clap:


> You and others have stated and reiterated an argument that our highest court consistently breaches this trust, based only on your disagreement with one or more of their decisions. It is an ignorant, groundless claim.* It undermines a cornerstone of our society and freedom. It slanders people who serve us with great integrity and intelligence. It is offensive.
> 
> An honest and independent judiciary is the bedrock of a free society. An honest and independent judiciary is what stands between a newspaper publisher printing truths that the government doesn't like, and a jail cell.* While people make bigoted, foolish remarks about how judges and lawyers are, as a class, untrustworthy, there are plenty of countries where being an honest judge or lawyer is like a death warrant.


That would be the judge's death warrant - and Italy is a good example even in a first world nation.

••

This is such an idiotic thing to argue about it makes my head spin. There are REAL issues out there like what this nation is to look like in the future and how it is to be governed.

If we can't get by the obvious - I despair for the difficult choices to come.


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## MacDoc (Nov 3, 2001)

nxnw I think removing the term marriage from the legislation and replacing it across the board with 'civil union" applying to all such arrangements is the getting out of marriage concept.

Corporation is a sex neutral legal artifact. Partnership is as well.

Civil union should be too.

I don't think the idea is that the gov wash it's hand of legislation regarding such unions.

As far as international issues I'm sure there are varying terms such LLC that differ and needs be dealt with.


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## nxnw (Dec 22, 2002)

The international issue is that, if you are married in a place that has jurisdiction to marry you (like the place where you reside), other countries will recognize the marriage. 

If there were no state of marriage here that constituted a legal relationship, I don't think other countries would recognize you to be married.

I imagine changing the name would work, but I can think of lots of reasons not to like that idea, and no good reason in its favour. It's like using the word "womyn" so it doesn't include "man". Actually, worse.


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## Fink-Nottle (Feb 25, 2001)

NXNW , you write:


> The thing you just don't get, is that Judges don't sit around making decisions based on what they like or don't like. They make decisions governed by principles of statutory interpretation and by following precedent. While laws are obviously subject to interpretation, legal interpretation is not a free for all. It is governed by precedent that judges are bound to follow. Judgments may be coloured to some degree by the leanings of their author and judgments may be wrongly decided, but it is a long stretch from either of these to say that judges will make whatever decision they feel like, based on their personal beliefs. Such a judge would have no regard for the law, but the most essential duty of a judge is to obey the law. It is their most solemn trust and duty.


Canada's Chief Justice Beverley McLachlin doesn't agree with you. She said the following in New Zealand earlier this week:



> The rule of law requires judges to _*uphold unwritten constitutional norms, even in the face of clearly enacted laws*_ or hostile public opinion... There is certainly no guarantee or presumption that a given list of constitutional principles is complete, even assuming the good faith intention of the drafters to provide such a catalogue.


Care to square those two opinions?

Link to Ottawa Citizen Report on the Chief Justice's speech


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## nxnw (Dec 22, 2002)

There is nothing that needs to be squared. You need to understand what "unwritten constitutional norms" are. They are simply conventions, prior judicial decisions, customs and values that are part of the constitution, but not formally codified in the written constitution. 

These "unwritten" conventions are well known, not made up by judges. Two important examples of such unwritten conventions related to the fact that, until 1982, our constitution was an act of the British parliament, the BNA Act. Technically, if one looked at only the written law, it would seem that the British parliament could change our constitution at will, whenever it wanted. In fact, it could not. There were two complementary conventions - "unwritten constitutional norms", that the British Parliament would never change the BNA Act if we did not ask, and it would always change it if we did. Other "unwritten" conventions include the rule that a budget vote is a confidence vote.

Old examples, now codified, were rights that originated in the Magna Carta that were incorporated into British common law and adopted by Canadian common law.

The CJC is not, by a longshot, expressing the view that the Court makes judgements based on personal views. She is, in fact, saying the opposite, talking about the range of sources of constitutional law that the court must recognize.


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## Myrddin Emrys (May 24, 2005)

_begin rant_


What is 'legal' is the preview of 'civil law' not by religious tenet; I think this is the answer to the root problem. Marriage has come to take a broad and general meaning, but religious texts only recognize a narrow view, union of Man and Woman.

My question is, what is religion doing trying to set civil law?

Indeed section 15 (1) is flawed for not including 'sexual orientation' in it's wording, that's why constitutions are intended to be amended. So we vote.

As for Harper, etc.... Moral issues are always best to sway voters from seeing the big picture of what they are voting for or against.

_end rant_


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## da_jonesy (Jun 26, 2003)

Myrddin Emrys said:


> Indeed section 15 (1) is flawed for not including 'sexual orientation' in it's wording, that's why constitutions are intended to be amended. So we vote.


No it is not flawed. It does not have to say anything about sexual orientation as it is not relevant as it very distinctly says "sex". So you cannot be discriminated upon based on your gender.


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## MacDoc (Nov 3, 2001)

> I imagine changing the name would work, but I can think of lots of reasons not to like that idea, *and no good reason in its favour*


One reason......the bigots would have to put or shut up. That's almost reason enough. 

The law strives to be gender neutral in it's legal terms, is this not just an extension of that practice?


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## Fink-Nottle (Feb 25, 2001)

NXNW wrote:


> There is nothing that needs to be squared. You need to understand what "unwritten constitutional norms" are. They are simply conventions, prior judicial decisions, customs and values that are part of the constitution, but not formally codified in the written constitution.


We all understand that our government processes rely on customs and conventions, but our rights as Canadians are embedded in centuries of court decisions (all recorded... how could "prior judicial decisions' be considered unwritten norms?) and legislation. You write that these "unwritten consititional norms" are "well known, not made up by judges" but McLachlin says judges are obliged to uphold them against the will and laws of the legislature and against public opinion. And if the legislature has the audacity to reject these norms, then McLachlin say that "judges have the duty to insist that legislative and executive branches of government conform to certain established and fundamental norms".

These norms are not based on precedent or parliament or the public... yet can be used to override all three. This goes far beyond mere interpretation of the law... and while I don't question the motives of the Court, I do question this usurpation of power. Although the end results are important, so is the process... I would rather live in a democracy that made decisions I sometimes disagreed with, than under an authoritarian court which for now, may be getting it right.


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## nxnw (Dec 22, 2002)

That's not correct. You don't understand what "unwritten" means in the constitutional context. It doesn't mean that it isn't written down anywhere. If you do a google search for "unwritten constitution", you will find articles referencing this concept in many countries. This is excerpted from the first hit referencing Canada:


> Sources of Constitutional Authority in Canada
> 
> These can be written or unwritten. The Canadian Constitution is composed of:
> 
> ...


http://www.canadiana.org/citm/specifique/written_e.html


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## Fink-Nottle (Feb 25, 2001)

> You don't understand what "unwritten" means in the constitutional context. It doesn't mean that it isn't written down anywhere.


While I'm not a lawyer I have studied constitutional law at the university level and I'm confident that my grasp of what is written and what is unwritten in our constitution is pretty solid. Your assertion leaves me baffled though... I Googled as you recommended and read your excerpt and explored the link but I'm none the wiser as to how something which is unwritten in the constitutional context can actually be written. Are you referring to the scholarly writings and foreign court decisions in your list? Surely they could only become part of our constitution if chosen by the Judge or Judges?

Please give an example of some writings that are part of our unwritten constitution. Thanks!


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## nxnw (Dec 22, 2002)

Things are not "chosen" by judges to be part of the constitution. In the case of scholarly writings, for instance, the court would treat these as references that evidence and explain certain constitutional principles, in their search to understand and interpret the constitution. So, for instance, there is an constitutional principle of judicial independence, which is the subject of _The Queen v. Beauregard_. The court says,


> Judicial authority in the United Kingdom has matured into a strong and effective means of ensuring that governmental power is exercised in accordance with law. Judicial independence is the essential prerequisite for this judicial authority. In the recent words of Lord Lane: "Few constitutional precepts are more generally accepted there in England, the land which boasts no written constitution, than the necessity for the judiciary to be secure from undue influence and autonomous within its own field" ("Judicial Independence and the Increasing Executive Role in Judicial Administration", in S. Shetreet and J. Deschênes (eds.), Judicial Independence: The Contemporary Debate (1985), at p. 525).
> 
> 26 In Canada, *the constitutional foundation for the principle of judicial independence is derived from many sources.* (emphasis added)


Sources are followed, or not followed, based on various factors. The court painstakingly details these considerations in its decisions. 

If you sincerely want to see how the court deals with unwritten constitutional principles, the secession reference case is a textbook on this process: http://www.canlii.com/ca/cas/scc/1998/1998scc63.html


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## Fink-Nottle (Feb 25, 2001)

Thanks for the link... although you didn't respond to my last request. No hurry... it's seems to be just us left here.


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## RevMatt (Sep 10, 2005)

Well, I agree no hurry, but I for one am still reading


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## MacDoc (Nov 3, 2001)

FN I and others ....I'll ask again

*Would you accept the elimination of the term "marriage" as a legal term in Canadian law and accept "civil union" to apply to all persons???*

Remember outside legal documents relationships can be called what you like. I'm talking purely legal.


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## nxnw (Dec 22, 2002)

Fink-Nottle said:


> Thanks for the link... although you didn't respond to my last request. No hurry... it's seems to be just us left here.


What didn't I respond to?


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## SINC (Feb 16, 2001)

MacDoc said:


> FN I and others ....I'll ask again
> 
> *Would you accept the elimination of the term "marriage" as a legal term in Canadian law and accept "civil union" to apply to all persons???*
> 
> Remember outside legal documents relationships can be called what you like. I'm talking purely legal.


No. They are two different things, one iis for opposite sex couples and one is for same sex couples. It should be clearly defined in law.


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## SINC (Feb 16, 2001)

MacDoc said:


> FN I and others ....I'll ask again
> 
> *Would you accept the elimination of the term "marriage" as a legal term in Canadian law and accept "civil union" to apply to all persons???*
> 
> Remember outside legal documents relationships can be called what you like. I'm talking purely legal.


No. They are two different things, one is for opposite sex couples and one is for same sex couples. It should be clearly defined in law.


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## MacDoc (Nov 3, 2001)

Why am I not surprised. 

Children come in two flavours and so do persons - the law treats them the same. 

Why are THAT two married judges somehow different from THOSE two married judges under the law.??


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## SINC (Feb 16, 2001)

The law should define clearly what it refers to and since marriage has been traditionally used to refer to the union of one man and one woman, the law should respect that institution. A civil union is obviously different since it is a same sex couple. Clarity, plain and simple. Separate definitions, same rights.


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## MacDoc (Nov 3, 2001)

Slavery, chattel, indenture, a Chinese head tax were all "traditional" - favour keeping those "institutions" too???......or just the ones YOU decide on.

If Judge H. Abram is in a union with Dr. J. Khan how would YOU or the law know, or need to know what sex each is?









Note the blindfold.


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## SINC (Feb 16, 2001)

MacDoc said:


> Note the blindfold.


What is so hard to understand that a majority of Canadians do not agree with YOUR particular point of view. Perhaps remove yours as well?


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## Mac Yak (Feb 7, 2005)

SINC said:


> What is so hard to understand that a majority of Canadians do not agree with YOUR particular point of view. Perhaps remove yours as well?


On June 28, 2005, the House of Commons voted 158 to 133 to adopt same-sex marriage into law. That sounds like a meaningful majority to me.

SINC, would you care to show just where exactly you're getting your "majority" figure from, or is that something you've just pulled out of your "book" again?


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## nxnw (Dec 22, 2002)

SINC responding to MacDoc said:


> What is so hard to understand that a majority of Canadians do not agree with YOUR particular point of view. Perhaps remove yours as well?


You don't have a blindfold on, just a wicked case of tunnel vision.

It is no challenge for the Harpers of this world to work up antagonism by a majority against a minority. You think a majority of southern voters were in favour of sharing white schools with blacks? An apt quote you would do well to think about is the poem attributed to Pastor Martin Niemöller, a Protestant minister who was incarcerated at Dachau:


> They came first for the Communists,
> and I didn't speak up because I wasn't a Communist.
> 
> Then they came for the Jews,
> ...


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## SINC (Feb 16, 2001)

I've said it here before, perhaps a thousand times, the traditional definition of marriage is between one man and one woman.

Polls have shown that more Canadians want the definition to stand and the term "unions" or whatever for same sex so-called "marriages".

Nothing any of you can say will ever convince me that two same sex couples are the same as a man and a woman.

It may be right in law or in your mind, but it is flat out wrong in my mind and always will be. I am far from alone in this belief and I guess all I can do is chalk it up to change that I, and many others don't like.

Since I have the right as a citizen to disagree with the decisions of government, I will do so until my dying breath, so get used to it guys. Two peas in a pod is one thing. Peas and carrots are quite another.

Tunnel vision? I think not. I clearly see the option, but I will never approve of the difference not being noted.


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## nxnw (Dec 22, 2002)

The most remarkable element of your attitude is that you feel that you should be entitled to restrict the right of someone else to marry, although their marriage has *zero* impact on you or your life. You don't like it, so they shouldn't have the right to do it and it doesn't matter that your opinion is inconsistent with a principle (equality) that you probably agree with, at least, in the abstract.

Hence, the importance of minority rights being protected by law, because they sure as hell won't be protected by people like you.


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## Fink-Nottle (Feb 25, 2001)

> Would you accept the elimination of the term "marriage" as a legal term in Canadian law and accept "civil union" to apply to all persons???


Macdoc... I am more concerned about the process than the conclusion. My personal view is that same sex marriage is a good thing and that gays should have the right to marry each other. I also believe though that any changes to the way marriage is defined should be made by the people we elect and not by an unelected court... I prefer a 'tyranny of the majority' over a 'tyranny of the minority'. I also believe that because this particular change was made undemocratically, it is at risk in a way it would not be had it been made consensually.

On a grander scale, I see this issue as an example of how we have moved away from a society governed by consenus, to one where people claim rights which they fight over in the courts. This has led to an increasingly polarized country where both sides play their parts with extreme rhetoric and narrow mindedness. Canadian are very fortunate to have many rights... but when those rights conflict I would like to see a compromise found in our Parliament rather than a winner and loser decided in our courts.


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## MacDoc (Nov 3, 2001)

FN - The most revealing element of that statement is "winner or loser".

Gender neutrality is a findamental aspect of the Charter and short of changing the Charter or using the not with standing clause you may protest all you wish but it's the law.

If you demand an exception here, one there then the entire validity of the Charter is called into askance. Equal is equal...not almost, or sort of, or same as.

Canada is honoured for protecting minorities and no better instance than this.

Sinc you are quite entitled to your "opinion" -that said your "opinion" of how things should be is not legal under the Charter.

Just recognising that fact alone is a start. But you don't. The Charter is apparently meaningless to you. 

Bigotry isn't illegal..just unsavoury.


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## Mac Yak (Feb 7, 2005)

SINC said:


> I've said it here before, perhaps a thousand times, the traditional definition of marriage is between one man and one woman.


That's nice. You have also proven for the 1,000th time that the only thing that seems to matter to you is your own blessed opinion. The decisions of people who are total strangers to you must hang in the balance solely because of your precious view -- the minority view, by the way.



SINC said:


> Polls have shown that more Canadians want the definition to stand and the term "unions" or whatever for same sex so-called "marriages".


Most Canadians disagree with you -- 53 per cent, according to an Ipsos-Reid poll on the subject. The difference between you and me is that I have something to offer other than my good looks. Here is my link from CTV.ca to the poll to back up my point:

"Poll finds narrow support for same-sex marriage"

http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/1097079996511_16?s_name=&no_ads=

So you can drop the idea that your opinion somehow represents the majority view when it clearly does not.



SINC said:


> Nothing any of you can say will ever convince me that two same sex couples are the same as a man and a woman.


They are all people who want to get married to each other. Who are you to stop them? Six provincial courts and the House of Commons recognized that the former definition of marriage was discriminatory and wouldn't hold up in a challenge. What's more, it shouldn't. Nothing -- other than the views of a prejudiced few -- should stop two people from getting legally married in the eyes of the law if that's what they want. This is what the majority has recognized -- that they are willing to allow two people to certify their bond with, and their commitment to, each other. They also recognize that such bonds are benificial to building strong family units, which ideally result in stronger communities. 



SINC said:


> It may be right in law or in your mind, but it is flat out wrong in my mind and always will be. I am far from alone in this belief and I guess all I can do is chalk it up to change that I, and many others don't like.


And you are entitled to your opinions, sir... no matter how prejudicial, myopic and ultimately revolting others might find them to be. 



SINC said:


> Since I have the right as a citizen to disagree with the decisions of government, I will do so until my dying breath, so get used to it guys. Two peas in a pod is one thing. Peas and carrots are quite another.


And peas and carrots are all vegetables, and all have their value. So which are the "heteros" and which are the "homos" in your less-than-illuminating analogy? And who are you to be judging what peas and carrots do with their lives, in whatever pairings they choose?



SINC said:


> Tunnel vision? I think not. I clearly see the option, but I will never approve of the difference not being noted.


Your comment is noted, sir. And the Prejudice and Myopia Parade marches on... for some...


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## nxnw (Dec 22, 2002)

Fink-Nottle said:


> ...I see this issue as an example of how we have moved away from a society governed by consenus, to one where people claim rights which they fight over in the courts.


This is an intellectually dishonest argument. There was a much larger and stronger consensus - not only parliament, but 9 provincial legislatures - who declared that equality is a fundamental Canadian value that legislatures are obliged to respect. When legislatures do not respect this funadamental value dictated by this broad consensus of Canadians, it is the duty of the Courts to step in.


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## SINC (Feb 16, 2001)

Mac Yak said:


> Your comment is noted, sir.


Well, I'm glad to see you got that part right.


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## Fink-Nottle (Feb 25, 2001)

> This is an intellectually dishonest argument.


NXNW, that's an accusation you can't substantiate... why not just say I'm wrong as opposed to dishonest? Many of your postings are marred by these ad-hominem attacks; am I naive to expect higher standards from a lawyer? 



> When legislatures do not respect this funadamental value (equality) dictated by this broad consensus of Canadians, it is the duty of the Courts to step in.


Equality over all? As a value it's vague enough that it can support almost anything. Do we have a right to equality of income, equality of lifestyle, equality of access to sunny beaches in January? Hypothetical to be sure... but so was "equality of sexual orientation" until the Supreme Court inferred it from the Charter. Again, that's not a decision I disagree with, but the people making it should be our elected parliamentarians.


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## RevMatt (Sep 10, 2005)

Fink-Nottle said:


> Equality over all? As a value it's vague enough that it can support almost anything. Do we have a right to equality of income, equality of lifestyle,


Yes and yes.



Fink-Nottle said:


> Again, that's not a decision I disagree with, but the people making it should be our elected parliamentarians.


The politicians failed in their duty to do so, and likely would have continued to, because an issue over which the nation is virtually evenly split makes for bad politics. Given that the pols failed, and, in all likelihood, would have continued to do so for another decade or two, do you believe then that same-sex couples are simply SOL? I believe that's precisely why the court has the power to act, and why it must at times. Let's remember how all this happened - the Provincial courts declared the current law to be in violation of the charter, a decision that was never once appealed, in any of the provinces (or the one territory). Never. The courts, in most jurisdictions, opted not to toss the law immediately, as they are empowered to do, but instead gave generous time windows for the law to be corrected. The Government failed to use that time, instead cramming things through only once one of the courts forced them to by discarding the old law outright (I forget which court it was). You are correct to say that this SHOULD have been done by our elected officials. But at every turn, they refused that responsibility, and hid from it. Even in the end of the day, the government chose to send the law to the Supremes before it was passed, creating the illusion that the court was setting the law.
We expect our courts to act as a balance for chicken sh*t politicians. That's what they did. Thank God for that.


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## Mac Yak (Feb 7, 2005)

SINC said:


> Well, I'm glad to see you got that part right.


Wilful ignorance is reprehensible. Your intentional intellectual dishonesty is nothing to be proud of.


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## nxnw (Dec 22, 2002)

Fink-Nottle said:


> Me said:
> 
> 
> > This is an intellectually dishonest argument.
> ...


If the shoe fits. I'll spell it out:

Fink-Nottle: A value expressed by one legislature represents public consensus. A value expressed by 10 legislatures does not represent public consensus.

This is intellectual dishonesty. The balance of your post, nonsense about equal income, "equality of access to sunny beaches in January ", etc. is more of the same. Your thesis is, throughout, based on the false and obnoxious premise that the courts, including the Supreme Court, interpret the Charter frivolously and based on personal motives, as opposed the the intellectual rigour and honesty that is reflected in the case law.


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## Fink-Nottle (Feb 25, 2001)

NXNW,

You seem not to know the definition of the word "honesty". I'll let it pass though as an occupational hazzard...  

Please show me a posting where I've accused the Supreme Court Judges of making judgements "frivolously" or "based on personal motives"... I don't believe you can. I would hope that the Judges might inspire you to use some "intellectual rigour and honesty" yourself; it is woefully lacking from your posts thus far.


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## nxnw (Dec 22, 2002)

You have repeatedly accused the courts of legislating, i.e. advancing their own personal agendas. You have persistently stated that they are inventing rights that have no source in the Constitution. here it is, in black and white:


Fink-Nottle said:


> In a democracy we expect that our elected representatives will govern our country... but as soon as 'Same Sex Marriage' became a Charter issue that ability was stripped from them. Instead, the decision was made by a group of people who are unelected and unaccountable.





Fink-Nottle said:


> It's shocking that in 2005 there are some who still want a few wise philosopher kings (like Trudeau?) to protect them from the evils of democracy...
> The Charter of Rights says absolute nothing about sexual orientation or the rights of homosexuals. Since 1982, the Supreme Court has made a series of rulings that have in effect, extended the Charter to give them them similar rights to other 'minorities'... I strongly disagree with the idea that these decisions should be made by an unelected, unaccountable group of nine people rather than by the people we elect. .





Fink-Nottle said:


> our Charter is a legal document, not a novel Where does it end?





Fink-Nottle said:


> It only matter what the Judges think.





Fink-Nottle said:


> But what happens when the pendulum swings and Harper or someone like him starts appointing more conservative judges who slowly whittle away or overturn the current court's decisions on 'same sex marriage' and other matters.





Fink-Nottle said:


> I would rather live in a democracy that made decisions I sometimes disagreed with, than under an authoritarian court which for now, may be getting it right.





Fink-Nottle said:


> also believe though that any changes to the way marriage is defined should be made by the people we elect and not by an unelected court


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## SINC (Feb 16, 2001)

Tough argument F-N when you debate with "one of them".

I agree that elected representatives and not unelected judges should govern this country and make its laws.

No one, and especially not "one of them", will ever convince me that personal bias does not come into decisions made by any judge, Supreme Court or not. Anyone who believes it does not, believes in fairy tales.


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## Fink-Nottle (Feb 25, 2001)

NXNW,

I'll let the citizens of EhMac decide if any of those quotes accuse the Judges of making judgements "frivolously" or "based on personal motives". Unless of course, you can show it to me in black and white.

I regret that I think Sinc is right... you are so much part of the problem that not only are you blind to it, but you even refuse to consider the possibility that it exists.


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## da_jonesy (Jun 26, 2003)

Fink-Nottle said:


> NXNW,
> 
> I'll let the citizens of EhMac decide if any of those quotes accuse the Judges of making judgements "frivolously" or "based on personal motives". Unless of course, you can show it to me in black and white.


After reading those quotes... I have to take NXNW's side. Your bias Fink-Nottle is clear as day. What I still find stunning is that you and a few others are so bent on discriminating against a segment of the population on this issue. 

At no point is someone else's right to marry impinging your rights... only your sensibilities. I find that position to be sad indeed.


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## Beej (Sep 10, 2005)

Fink-Nottle said:


> Please show me a posting where I've accused the Supreme Court Judges of making judgements "frivolously" or "based on personal motives"... I don't believe you can.


I agree, the quotes didn't demonstrate what you asked about.

And now for something completely differnt -- polygamy. Discuss with your spouses


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## SINC (Feb 16, 2001)

Beej said:


> I agree, the quotes didn't demonstrate what you asked about.


Of course they don't. When one is in a profession that produces judges, one can hardly be expected to be unbiased in one's opinions of fellow current or potential judges.


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## SINC (Feb 16, 2001)

da_jonesy said:


> After reading those quotes... I have to take NXNW's side. Your bias Fink-Nottle is clear as day. What I still find stunning is that you and a few others are so bent on discriminating against a segment of the population on this issue.
> 
> At no point is someone else's right to marry impinging your rights... only your sensibilities. I find that position to be sad indeed.


No one is questioning their rights. We are however questioning the way laws are being made by unelected judges and the legal definition of the term "marriage".


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## Beej (Sep 10, 2005)

SINC said:


> Of course they don't. When one is in a profession that produces judges, one can hardly be expected to be unbiased in one's opinions of fellow current or potential judges.


I think one can be, but it may take more effort than for most. 

Strangely enough, I have these occasional optimistic outlooks that pop up through my cynical surface. I'll try harder to beat down any sign of optimism in the future.


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## SINC (Feb 16, 2001)

Beej said:


> Strangely enough, I have these occasional optimistic outlooks that pop up through my cynical surface. I'll try harder to beat down any sign of optimism in the future.


Either that or become a federal Liberal.


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## Beej (Sep 10, 2005)

I said optimism, not eagerness to lie and/or become dellusional (more honest?). 

Insert equal opportunity political insults here<>, because I can't bother right now.


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## SINC (Feb 16, 2001)

Beej said:


> I said optimism, not eagerness to lie and/or become dellusional (more honest?).


Thanks for clearing that up Beej!


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