November 29, 2007

Speculating Beyond Stupidity and Bigotry: Bill C-6

By now it is plainly obvious that the Conservatives' bill to force Muslim women is a nonsensical legislation and a waste of parliament's time. As many have pointed out, it has little to do with electoral integrity because there are glaring discrepancies in the current legislation that are held over in Bill C-6. These discrepancies include absentee ex-pats mailing in votes and non-photo identification being acceptable. Thus making a veiled woman uncover before she votes has no basis in integrity because there's no way to know if she's the person presenting the non-photo identification. So what is the motivation to force veiled women uncover prior to voting?

Some people are accusing the Conservatives of using this Bill to shore up support with the side of Quebec that was responsible and supportive of the farce that was (is?) Hérouxville. Or - possibly additionally - they are shoring up support of many of their far-right voters that may identify with anti-immigration, xenophobic, and other like views who may feel that the CPC haven't been conservative enough in their policies thus far. If either of these cases are true then the Conservatives are playing a very dangerous game in the self-interest of power. While it isn't a secret that the Conservatives would rather find a way to get more power than actually govern, one can only hope they wouldn't stoop as low as to encourage bigotry to make its gains.

Let's play devil's advocate for a minute and assume that the Conservatives are neither stupid (don't see the discrepancies) or are dangerously posturing (to their ignorant supporters). What else could motivate the Conservatives to create such a Bill then? From where I sit, if Bill C-6 passes, there is the high probability of the Bill being challenged in the Supreme Court. Between the discrepancies and the singling out of Muslim women, in Canada how could the Bill not be challenged?

Maybe the motivation behind the Bill is to have it go to the SCC. Let's speculate a little...

It's well known that the Conservatives have a dislike for the Supreme Court. Harper has done the whole 'activist judge' routine on several occasions and had a big showing right before he began forcing judges to be questioned by a panel prior to being appointed to the SCC. And the Conservatives did away with the Court Challenge program that aided citizens with bringing constitutional challenges before the SCC. We all know that he doesn't like to be questioned - not by his own party members, not by the opposition, not by the media and especially not by the SCC. He would like to rule and bring whatever laws into action that he sees fit. Unfortunately for Harper and the Conservatives, the Supreme Court, though they can't make law themselves, is essentially a check on any laws that are made through parliament. The SCC is like a natural defender of the Charter and Canadians against politicians that may try to make laws that go against our rights and freedoms. However, the judges are unelected and that seems to really get under many Conservatives skin.

So what does any of this have to do with Bill C-6? The Conservatives are arguing that the Bill strengthens the integrity of our electoral process (though in reality it does nothing of the sort). However, if Bill C-6 is argued to be in violation of our Charter through the SCC and the challenge is successful, it could give ammunition to the Conservatives to once again go on another anti-SCC tirade. They will paint the SCC and the judges as going against the will of elected officials and interfering with the democratic institution and process. It may turn out that all of this is an exercise to justify changing the way judges are appointed or altering the powers of the SCC. Though to do that involves reopening the Charter, which is also something the Conservatives desire. And once you open the Charter for one issue, you might as well begin examining other parts (the structure and purpose of the Senate or federal/provincial powers, etc.) of it as well.

I understand some will look at this speculation as pure downward spiral, crazy lefty-speak. I can see that to some degree myself, hence it being just random speculation. However, there is some merit to the idea since much of what Harper does has other motivations attached to it beyond what is seemingly on the surface. And it isn't like there hasn't been any talk of opening the Charter since the Conservatives took power. Then again, maybe the Conservatives are just pandering to the lowest common denominator of Canadians and/or are stupid.

4 comments:

ALW said...

one can only hope they wouldn't stoop as low as to encourage bigotry to make its gains.

Yeah - unlike Dalton McGuinty, who demagogued about religious schools for an entire election campaign, and won. And don’t even pretend it wasn’t about one religious group in particular - wink wink - that no one felt obliged to name directly.

It's well known that the Conservatives have a dislike for the Supreme Court. Harper has done the whole 'activist judge' routine on several occasions and had a big showing right before he began forcing judges to be questioned by a panel prior to being appointed to the SCC.

This is patent nonsense, Kyle. He didn’t force judges to be questions because of activism. He did it for transparency. This was a procedural move, not an ideological one. Besides, its ridiculous to suggest that judges don’t themselves hold some sort of philosophical worldview themselves - yet its somehow okay for left-leaning governments to appoint their own allies and no one says anything?

And the Conservatives did away with the Court Challenge program that aided citizens with bringing constitutional challenges before the SCC.

They did away with the CCP because the CCP conveniently funneled most of its monies towards left-wing groups promoting left-wing causes. Not sure why that’s surprising - or unfair. I don’t see the Fraser Institute or the NCC lining up for free cash to litigate their own pet legal hobbyhorses, do you?

The SCC is like a natural defender of the Charter and Canadians against politicians that may try to make laws that go against our rights and freedoms. However, the judges are unelected and that seems to really get under many Conservatives skin.

Huh? The Charter is the check on Parliament, not the SCC. The SCC just points out when the Charter is being violated. I sincerely doubt Harper resents that fact. But it’s irrelevant, because of the notwithstanding clause: the Charter only came into existence because that clause was included, giving Parliament the power to override the SCC. If you don’t like that, take it up with Pierre Trudeau: he’s the one that made the compromise.

Kyle said...

The religious school plan was crap from the beginning. It had little to do with fairness and it was about trying to pander minorities and partially reinstate the former private school give back.

And it wasn't about one religion in particular. There are horror stories from all religious groups about the abuse students go through in the name of their religion while they're in the public system. And it's because of a public school teacher the abuse gets noticed. I'm not just talking about general physical abuse either, I'm talking about specific twisted verses type of abuse. Stick these kids in their own schools, let it get run by fundamentalists and you have serious problems.

I'm not saying the system we have now is perfect. At the risk of pissing off my union or party, I'm all in favour of eventually canning the Catholic board. I just don't think now is the time. Maybe in a few years when the current system is running much better and we've dealt with more serious issues.

As for Harper, I stand by my comments. He's done the whole activist judge routine and accused them of trying to create law and going against parliament, yadda, yadda. Unless all of that was just a show for his Reformer crew...

The CCP was a good program, it doesn't matter who was taking advantage of it. All legislation and doctrine should be continuously challenged and questioned. It keeps it relevant and legitimate. If the right weren't using the program, that's their fault.

You're right the Charter is the check but who ultimately who enforces it? The SCC. We had this discussion once, kind of. The Charter also makes it clear there is a balance between the SCC and parliament. The notwithstanding clause is limited in its power and the optics of using it to override some questions of basic rights would also likely be detrimental to a government.

ALW said...

The religious school plan was crap from the beginning. It had little to do with fairness and it was about trying to pander minorities and partially reinstate the former private school give back.

It had and has everything to do with fairness. How is it “pandering” to minorities to say that we either separate church and state in this province (and country), or we don’t? Would you or any other sane commentator support, for example, Jewish-only tax cuts, or Muslim-only business subsidies, or Hindu-only hospitals? The very notion is ridiculous. So why is it different for funding the schools of only one religion? Either fund them all, or fund none of them. Any other position is blatantly discriminatory (I think you agree with me on this, and I’m glad to see you take one of those positions - removing funding from Catholic schools - since that’s a totally reasonable, defendsible and consistent position).

As I said, just because McGuinty didn’t come right out and say “especially Muslims” doesn’t mean he wasn’t playing to what’s going on the heads of most people. There’s no use pretending that, rightly or wrongly, the public if far more fearful of Muslim fundamentalism, than, say, Buddhism. And my point was that, rather than sending the right message, i.e. we have nothing to fear from the overwhelming majority of Muslims, who are peaceful, McGuinty instead milked that prejudice for all it was worth. Can you imagine if a Conservative had proposed such a thing? The Liberals would have had a field day with it. But because apparently Liberals are shielded from darker sentiments by virtue of their cloak of supposed tolerance, they get away with it scot-free.

I am curious as to whether you believe there is such a thing as an activist judge, because I do. That doesn’t mean that every instance of a judge striking down a law means they are being ‘activist’. But sometimes they are activist: for example, the Ontario Court of Appeal in R. v. Halpern (the same-sex marriage case). I agree with the decision reached by the court in that case (the existing definition of marriage was a Charter violation) but the remedy they imposed was activist - they gave immediate effect to the new definition! Normally courts suspend the effect of their judgment to give the legislature or Parliament time to fix the problem by introducing new legislation that corrects the offending defect. So by instead giving their decision immediate effect, they played the role of the legislature, which is inappropriate.

I guess the best analogy to use is that I (and most conservatives) believe the courts are there to play defence only. They can and should stop the legislature from doing things they shouldn’t be permitted to do, as per the Charter - indeed, that is their very purpose when it comes to the Charter. But they can’t also impose new laws on us - that is the legislature’s job. To do so totally undermines the purpose of the legislative branch. That’s why we elect them, and why we don’t elect judges: because their powers are different, and prevent the concentration of power in either branch.


The right wasn’t using the CCP because their applications for funding were usually rejected - and as a matter of principle, it’s wrong to use public money to pursue such litigation. There is such a thing as nuisance litigation, which happens all the time at all levels of courts, which is why sometimes things take years to resolve. Cutting the CCP ensures only people willing to put their money where their mouth is commence litigation. And there are plenty of progressive lawyers out there who take on CCP-like challenges for little or no fee, precisely because they believe strongly in it.

Kyle said...

'Fairness' may have been the talking points and the hope of the plan but it wasn't why it was conceived. Besides, where it might have created fairness in terms of religion, it recreated an unbalance between class, all at the risk of the public education system. Which for many people seemed completely obvious as the majority of Ontarians, including a majority of the religious citizens (which is why he probably didn't say Muslim), didn't support the idea. The PCs knew this even before they released but still decided to, not because it was the 'right' thing to do but because they were trying to make divisions between people and create a 'crisis' in education that they hoped to use against McGuinty. Like I said, I think eventually we will get to the point where the province will look at either eliminating the Catholic system, or (and which I prefer) collapsing it into the public system. There are much more pressing concerns within the education system that need to be addressed before we plan a major overhaul. Those concers are being and will continue to be addressed over the next few years, which is also why the funding formula isn't be reviewed until 2010.

I get there are activist judges. Actually I would argue any judge with a personal opinion is activist. That means they all are. However, just because we can classify a judge as activist because of their action doesn't mean the term isn't tagged with a negative connotation. The term is used to accuse judges of going beyond their mandate and essentially saying they are in the wrong. That is how Harper has used it - with the negative connotation that is attached. Like I said though, I have no issues with judges, who have challenges brought before them, re-exploring the meaning of certain laws of parts of the Charters. I look at parliament in the case of SSM and I think they were to concerned over the politics of introducing it themselves and it took the SCC to right that mistake. Maybe the SCC forced the hands of parliament to act but in the interest of being just, it was the right thing to do. That has to happen sometimes.

I won't argue that there weren't some people willing to abuse the CCP. All people have their biases though, so while there are progressive lawyers willing to take on a lot of cases, it doesn't mean all will get heard. Maybe the best thing to do was to revise the CCP so that it was more strict in terms of cases that were willing to receive aid. I don't know. To be honest, I know more about the intent and purpose of the CCP than the actual guidelines and process.

Quotes from people smarter than me...

"If a free society cannot help the many who are poor, it cannot save the few who are rich" ~ JFK

"Our lives begin to end the day we become silent about things that matter. " ~ Martin Luther King Jr.

"Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety. " ~ Benjamin Franklin

"First it is necessary to stand on your own two feet. But the minute a man finds himself in that position, the next thing he should do is reach out his arms. " ~ Kristin Hunter

"When you're a mayor and you have a problem you blame the provincial government. If you are provincial government and you have a problem you blame the federal government. We don't blame the Queen any more, so once in a while we might blame the Americans." ~ Jean Chretien

"Which is ideology? Which not? You shall know them by their assertion of truth, their contempt for considered reflection, and their fear of debate." ~ John Ralston Saul

"It is undoubtedly easier to believe in absolutes, follow blindly, mouth received wisdom. But that is self-betrayal." ~ John Ralston Saul

"Everybody dies, Tracey. Someone's carrying a bullet for you right now, doesn't even know it. The trick is to die of old age before it finds you." ~ Cpt. Malcolm Reynolds (Firefly, Episode 12)

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