Rights are rights are …?
Today's column has some fun with the contradictions in each of the parties' positions on rights issues. In case my own views on these issues are not clear, I am: for gay marriage, against the notwithstanding clause, for property rights, and against abortion (and certainly in favour of assigning some sort of legal status to the child in utero, whether or not we decide the child's rights should trump the mother's). I thought the Chaoulli decision was good law, though I remain unpersuaded of the necessity or advisability of allowing private insurance. And I am in favour of free votes and referendums, especially on "sensitive social issues."
Oh yes. I am generally against child labour, though I make exception for paper routes. EXTRA-ANNOYING BONUS POINT: I also think prisoners should have the right to vote.
If I understand the prime minister’s position correctly, it is necessary to remove the notwithstanding clause, at least at the federal level, in order to prevent governments “cherry-picking” which rights they they will protect, and which they will not. So, for example, the prime minister is very, very worried that some future Parliament might impose certain limits on abortion -- whoops, on a-woman’s-right-to-choose -- should the clause remain in place.
On the other hand, he is not at all worried that the Supreme Court might, in the absence of the constitutional override, decide that private health insurance was a right. Or rather, he is very, very worried that it might, should the Tories succeed in adding the right to own property to the Charter. Those would be the same Tories who fulminate (discreetly) against the Charter as an agent of, if not the devil, at least of judge-made law, which amounts to the same thing. Got that? A Conservative is one who wants to abolish the Charter, and amend it to include property rights.
Of course, private health insurance isn’t the only horror that might be visited upon us should property rights be entrenched. There’s also the matter of child labour. Not to mention choking air pollution, starvation wages, and a hundred other things I thought had already befallen us on account of free trade. You never know what those crazy judges might decide. The ones whose word Mr. Martin would like to make final.
And restrictions on abortion -- sorry, a-woman’s-right-to-choose -- aren’t the only thing that could happen should the notwithstanding clause remain. There’s also the issue of gay marriage, a fundamental human right to which the Liberal Party of Canada is passionately committed, and has been ever since it was against it. Just let those Tories get in with their notwithstanding clause, the one Mr. Martin promised to use two years ago, and they’d vote against gay marriage in a free vote, as they did last year. The only answer is to elect the Liberals, thirty-three of whom voted the same way.
Or you could vote NDP. The New Democrats are aghast that the prime minister says he would accept a Supreme Court decision abolishing medicare -- assuming it were ever to issue such a ruling. The Chaoulli decision last year, for example, did not say that private insurance was a right, or for that matter that public insurance was: it just said the government couldn’t kill people, forbidding them other options even as it was failing to give them timely care.
No matter -- the NDP insists the government should have the power to override such a decision. After all, the rights of the few must give way to the rights of the many. Unless, of course, the issue is gay marriage or abortion -- sorry, etc. -- in which case the many must give way to the few: so much so, that they must not even be allowed to vote on it. It is unconscionable, Jack Layton often thunders, that the majority should decide what rights the minority should have, though if memory serves that’s how the Charter came into being.
Well. Before all the cherries are picked, may I make a few points?
1. There is no link between abortion and notwithstanding. Parliament would not need to invoke the clause to legislate on abortion, since nothing in the Charter prevents it. The 1988 Morgentaler decision did not say that any abortion law would violate the Charter: only that that one did.
2. Property rights are not some invention of the American far right, as the prime minister appears to believe. The right not to have your property expropriated without fair compensation is already guaranteed at common law, by provincial statute, and by the 1960 Bill of Rights -- to say nothing of the United Nations’ Universal Declaration of Human Rights.
As for the Americans, though their Constitution has included protection for private property since 1788, they have somehow managed to bring in unemployment insurance, public pensions, and other of the elements of a modern welfare state, in most cases long before we did. Not to mention outlawing child labour.
3. Whatever the rights or wrongs of a property rights amendment, it would, like all rights in the Charter, be subject to Section 1, the “reasonable limits” clause. Government would not be forbidden from any incursion on property rights -- only those it could not reasonably justify.
On the other hand, the notwithstanding clause does not apply to a number of Charter rights: aboriginal rights, for example, or the equality of the sexes. Not to mention the rest of the Constitution -- also interpreted, I believe, by the courts. So if judicial activism is your great fear, please be aware that the notwithstanding clause is not going to save you.
Oh yes. I am generally against child labour, though I make exception for paper routes. EXTRA-ANNOYING BONUS POINT: I also think prisoners should have the right to vote.
If I understand the prime minister’s position correctly, it is necessary to remove the notwithstanding clause, at least at the federal level, in order to prevent governments “cherry-picking” which rights they they will protect, and which they will not. So, for example, the prime minister is very, very worried that some future Parliament might impose certain limits on abortion -- whoops, on a-woman’s-right-to-choose -- should the clause remain in place.
On the other hand, he is not at all worried that the Supreme Court might, in the absence of the constitutional override, decide that private health insurance was a right. Or rather, he is very, very worried that it might, should the Tories succeed in adding the right to own property to the Charter. Those would be the same Tories who fulminate (discreetly) against the Charter as an agent of, if not the devil, at least of judge-made law, which amounts to the same thing. Got that? A Conservative is one who wants to abolish the Charter, and amend it to include property rights.
Of course, private health insurance isn’t the only horror that might be visited upon us should property rights be entrenched. There’s also the matter of child labour. Not to mention choking air pollution, starvation wages, and a hundred other things I thought had already befallen us on account of free trade. You never know what those crazy judges might decide. The ones whose word Mr. Martin would like to make final.
And restrictions on abortion -- sorry, a-woman’s-right-to-choose -- aren’t the only thing that could happen should the notwithstanding clause remain. There’s also the issue of gay marriage, a fundamental human right to which the Liberal Party of Canada is passionately committed, and has been ever since it was against it. Just let those Tories get in with their notwithstanding clause, the one Mr. Martin promised to use two years ago, and they’d vote against gay marriage in a free vote, as they did last year. The only answer is to elect the Liberals, thirty-three of whom voted the same way.
Or you could vote NDP. The New Democrats are aghast that the prime minister says he would accept a Supreme Court decision abolishing medicare -- assuming it were ever to issue such a ruling. The Chaoulli decision last year, for example, did not say that private insurance was a right, or for that matter that public insurance was: it just said the government couldn’t kill people, forbidding them other options even as it was failing to give them timely care.
No matter -- the NDP insists the government should have the power to override such a decision. After all, the rights of the few must give way to the rights of the many. Unless, of course, the issue is gay marriage or abortion -- sorry, etc. -- in which case the many must give way to the few: so much so, that they must not even be allowed to vote on it. It is unconscionable, Jack Layton often thunders, that the majority should decide what rights the minority should have, though if memory serves that’s how the Charter came into being.
Well. Before all the cherries are picked, may I make a few points?
1. There is no link between abortion and notwithstanding. Parliament would not need to invoke the clause to legislate on abortion, since nothing in the Charter prevents it. The 1988 Morgentaler decision did not say that any abortion law would violate the Charter: only that that one did.
2. Property rights are not some invention of the American far right, as the prime minister appears to believe. The right not to have your property expropriated without fair compensation is already guaranteed at common law, by provincial statute, and by the 1960 Bill of Rights -- to say nothing of the United Nations’ Universal Declaration of Human Rights.
As for the Americans, though their Constitution has included protection for private property since 1788, they have somehow managed to bring in unemployment insurance, public pensions, and other of the elements of a modern welfare state, in most cases long before we did. Not to mention outlawing child labour.
3. Whatever the rights or wrongs of a property rights amendment, it would, like all rights in the Charter, be subject to Section 1, the “reasonable limits” clause. Government would not be forbidden from any incursion on property rights -- only those it could not reasonably justify.
On the other hand, the notwithstanding clause does not apply to a number of Charter rights: aboriginal rights, for example, or the equality of the sexes. Not to mention the rest of the Constitution -- also interpreted, I believe, by the courts. So if judicial activism is your great fear, please be aware that the notwithstanding clause is not going to save you.
1/14/2006
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