â Å“I'm no expert on Sharia law, but some of the aspects seem not to agree with the Canadian Charter of Rights. It will certainly be a matter for the courts, lawmakers, and citizens to discuss. What makes us Canadian in legal terms is the Charter of Rights and the laws that govern us that we ALL fall under. Separate laws or processes will more or less divide us and thats no good.â ?
Bert: I am in agreement with most of what you say however, with the greatest respect sir, I take particular issue with the above captioned paragraph.
1. In legal terms the Charter makes absolutely no one a Canadian. Twenty million citizens of this country were Canadians long before the Charter came into force, and the passing of the Constitution Act, 1982 did absolutely nothing to preserve or detract from that fact. Since 1982, 10-14 million other citizens have been either born Canadian or became Canadian and the existence of the Charter certainly did not make them Canadian either. With respect to citizenship, all the Charter does is guarantee obedience to certain fundamental principles of administrative law that ensure an applicant for Citizenship is treated in accordance with the Rule of Law.
2. Multi-culturalism, religious freedom, and equality are separate and distinct legal concepts under the Charter, which may, under certain conditions, intersect in order to advance an argument. However, each concept would be analysed separately under its own body of law: intersecting rights [sometimes called â Å“piggy-backingâ ? or â Å“bundlingâ ?] is a new and relatively untested development that some judges have characterized as dangerous. [see the last sentence of paragraph 5 for an example].
3. All Canadians are subject to the Rule of Law, however, not all Canadians can derive any useful benefit from the Charter, and many are outright precluded in certain circumstances. In fact, section 15(1) and 15(2) of the Charter, [the equality provisions] create a legal scheme whereupon a large percentage of the population is effectively barred from seeking refuge in the Charter where their rights are engaged. True equality, as the saying goes, requires treating some groups â Å“more equalâ ? than others. There is now a body of emerging legal jurisprudence in Canada that finally recognizes that with rights, come responsibilities- in my opinion, it is that trend, more than anything else, is what will re-establish a sense of Canadian identity â “ equality with fairness; religious freedom without internalized sub-culture oppression; duty to others; limits to unrestrained individualism etc. There is a rising trend seeking to re-balance equality litigation in Canada, touching upon, and in some cases displacing, blatantly discriminatory and divisive attitudes of many special interest groups as well tempering the rather lopsided outcomes of equality litigation so far.
4. When is the last time citizens had an effective opportunity to discuss any proposed law, let alone a form of â Å“lawâ ?? I'm sure you agree, the Sharia debate will no doubt clothe itself in overtones of racial, gender and religious bias. Several decisions written by Chief Justice Dickson, in the Supreme Court of Canada, expressly state that with respect to interpretation of laws, Courts owe little deference to legislatures and none at all to citizens. Those decisions are still cited and adhered to today in both form and substance. Therefore, the notion that there is some sort of ongoing dialogue between the Courts and legislatures [the so-called Charter dialogue] is nothing more than legal-academic myth advanced by those seeking to further entrench the power of the Court itself. As far as legislators consulting or discussing issues with citizens, those concepts are so far removed from the way our so-called democracy currently operates such that â Å“a promise to consult or discuss an issue is not even a promise to take common sense, honesty and integrity into consideration.â ? Couple that bit of legal obiter with the pervasive political practice of selective public consultation and you end up with the hallmarks of a dysfunctional democracy slipping into a quasi dictatorship of twisted academic and political elitism.
5. Integration of concepts and precepts of the Sharia into legislation or regulations such as the Family Law Act is, on its face, nothing more and nothing less than importation of certain religious rules of conduct into marriage enforceable in a court of law â “ i.e. if you choose the Sharia, you must follow the Sharia before going to court. This is already the case with marriage contracts, many of which call for mediation before litigation. Such contracts are between 2 private persons, are enforceable in their own right, and since they are not between the state and citizen, there is no need to legislate further. A co-habitation agreement/marriage contract trumps the FLA with certain property based exceptions. The Charter does not apply to contracts not involving the state, and to create a separate body of statutory law for Sharia marriages will open the door for legislatures to create separate forms of legal marriage- gays and lesbians will surely attack such a development.
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I'm happy to see that you raised the Charter issue in this forum, and if you didn't know, there is a separate forum regarding the appropriateness of subjecting in an unrestrained manner, the Charter and the CHRC over the CF. The essence of the forum discusses the appropriateness of CF members having to rely upon the civilian system to have their Charter and human rights issues dealt with, as well as whether or not certain systemic remedies have had a negative impact on the operational effectiveness of an unique institution whose primary seat of excellence is supposed be war-fighting.
Cheers ...
