Talk:Canadian Charter of Rights and Freedoms/Archive 1

Archive 1

Archive 2

Extension of Rights

Could someone please explain what this section of the article is attempting to explain? The idea of extending rights into areas that are not explicit in the Charter is not new, out of the ordinary, or exclusive to the lower courts. Constitutional interpretation since Confederation has followed the "purposive interpretation" doctrine which has always asked the courts to read into constitution beyond its exact wording. "Originalist" constitutional interpretation never had much traction is Canadian law, so I'd question how controversial the issues described in this section really are.

The same-sex marriage issue, in constitutional terms alone, is not a stretch or controversial by any means. Sexual orientation, along with a handful of other grounds, has been read into section 15 -- a practice that has been around since the first days of the Charter -- thus making laws which discriminate on this ground unconstitutional. As well, there's not much of a debate on who has the authority to legislate matters in relation to marriage either. Constitution clearly states that the feds have authority over "Marriage and Divorce".

As for the Sandra Bell v. City of Toronto comment. I'm having trouble following this one too. I'd suggest that controversies regarding specific interpretation of certain sections of the Charter be kept in the article for that particular section and not on the main page.

I think a criticism section is fine but it should be a little more coherent than what is there now. I'd suggest removing this section until something better comes along. Any thoughts? --PullUpYourSocks 00:04, 23 October 2005 (UTC)

• I'm agreeing a criticism section would be OK to have, there's lots of the stuff, right-wing and left-wing. I'm reading a book on that right now. Also agreeing the extensions section is a bit hard to follow at the moment, especially with recent edits. That section does need expansion/cleanup. But it can have a place in the article. As for removing it immediately, we can put it in the talk page, but perhaps we should assign among ourselves first whom should rewrite it, just to make sure something better will come along. CanadianCaesar 23:05, 23 October 2005 (UTC)
  • I have more time to edit Wikipedia now, by the way; I can take a shot at it; but I would be hesitant to, given the fact that there is no "Arguments in favour of the Charter!" section. It might come across as too POV to only represent one side, and I don't want to be seen as the Charter-hater. CanadianCaesar 23:20, 23 October 2005 (UTC)
    • Okay, it's done. And I edited the "Comparisons" section to keep a more general focus on all the Charter; I moved the extended discussion on section 1 to Section One of the Canadian Charter of Rights and Freedoms. Comments, thoughts, concerns? CanadianCaesar 01:11, 26 November 2005 (UTC)
      • It's worlds better than it was before. A far more coherent survey of the major criticisms of the Charter. Too many times "criticism" sections devolve into complaint articles, when they should focus on established academic criticism. Well done! --PullUpYourSocks 16:22, 26 November 2005 (UTC)

Charter section articles

By the way, in case anyone is wondering as to whether the subarticles (eg. section 1, 2, 3, etc) should be merged into this one, I ran a test merge, using Show Preview, and a merged article would be too long. Like the US Constitution has articles for its Amendments and Articles, those can stand. CanadianCaesar 23:20, 23 October 2005 (UTC)

Canadian Bill Of Rights

I have neither the time nor the expertise to fix things, but the bit about the Canadian Bill Of Rights is wrong. As I understand it, the CBoR imposes binding "manner and form" requirements on federal statutes, and courts can (and do) find that laws enacted in contravention of those requirements are of no force. 24.108.233.15 07:01, 4 December 2005 (UTC).

• Well, I did strike out the part that said Courts could not "review" statutes using the Bill of Rights, but that seems to have been less of an error as it was a confusion of language. The rest, as far as I can see, is accurate. The Bill of Rights does have a more limited scope, it was easily amendable, and it only applied to the federal government. More importantly, it could not result in statutes being struck down. The Bill says that laws must be "construed and applied" so they don't violate the Bill; that means the laws aren't struck down, it's just that they're applied differently. A certain part of a statute may be deemed "inoperative" but it will not be repealed by a court. CanadianCaesar 22:34, 4 December 2005 (UTC)
  • Hogg's "Constiutional Law of Canada", section 32.3(a): "Anyway, after nearly ten years of doubt reinforced by conflicting judicial opinions, the Supreme Court of Canada by a majority of six to three rejected the view that s.2 [of the CBoR] was merely a rule of interpretation and held that that s.2 had the effect of overriding inconsistent federal statutes by rendering them inoperative." So it's not that laws are applied "differently;" to the extent of the inconsistency, they aren't applied at all (which is exactly what happens with the Charter: a zillion years after the first Morgentaler decision, and the struck down provisions are still listed in the Criminal Code, because they've never been formally repealed -- c.f. http://laws.justice.gc.ca/en/c-46/42801.html)24.108.233.15 00:30, 5 December 2005 (UTC)
    • Believe it or not, you're both more or less right. Prior to Drybones, s. 2 was primarily used as an interpretation rule. However, after Drybones, section 2 was rarely used to override statutes, and never again by the Supreme Court. (see Hogg 32.5) -PullUpYourSocks 03:09, 5 December 2005 (UTC)
    • Actually, maybe anon is a bit more right. According to Westlaw there seems to have been about 20 or 30 cases that followed Drybones over a period of ten years. So does mean it was infrequent? Maybe, since there's been something like 200 cases that considered it. But, for what it's worth, the Bill definitely was being used to render acts "inoperative". PullUpYourSocks 04:11, 5 December 2005 (UTC)
      • Yes, I acknowledge above the Bill could render a Bill "inoperative"; but that's part of how a law would be applied differently- to refrain from applying it. In Singh (1985) [1], the two halves of the Court used different terminology because one was using the Bill and the other the Charter. The Bill side found the law "inoperative" but the Charter side found it of "no force or effect". It might not make any practical difference, but as Hogg points out it's a difference in terminology that was necessary based on the theory behind the bills. CanadianCaesar 19:44, 5 December 2005 (UTC)
      • I can see what you are getting at. Rather than say the infringing laws were "struck down" by the CBOR, it's more analogous to look at the CBOR as "reading down" the infringing Act into oblivion (or as the case said "render inoperative"). -PullUpYourSocks 20:06, 5 December 2005 (UTC)
      • Scratch that last part. I couldn't find Hogg saying there was necessarily a difference in terminology, but he does describe both decisions in terms of their specific terminologies. I reflected upon this somewhat, and came to the conclusion that this debate stems from the fact that, as numerous commentaries have pointed out for four decades, the Bill is really poorly drafted. Another thing is that, are we arguing in terms of theory or what the courts actually came to decide? But I'll point out briefly that even after the Court decided that statutes can be rendered inoperative by the Bill, the Court said that this was "somewhat analogous" as opposed to "analogous" to circumstances in which a bill was invalidated on grounds of Canadian federalism (see Hogg 32.3 (a)). Hmmm.... I don't know. Maybe the Court was trying to avoid cornering itself with that kind of ambiguous language. Well, at least the Bill's been mostly superseded by the Charter, so most of this doesn't matter any more. CanadianCaesar 00:26, 6 December 2005 (UTC)

Sections 4 and 5

I'm wondering why sections 4 and 5 were ever included in a "Charter of Rights and Freedoms". These aren't "Rights and Freedoms", they're constitutional requirements for the maintenance of the Canadian system of government. As such they should have been ammended to the main body of the "Constition Act", not sloppily included in a "Charter of Rights and Freedoms" at all, as they have nothing to do with "Rights and Freedoms". Loomis51 07:04, 4 March 2006 (UTC)

I think they're meant as rights, in a sense that, we have a right to a government that doesn't go past 5 years and doesn't consult with the legislative branch. Anything less would be dictatorship. CanadianCaesar The Republic Restored 08:39, 4 March 2006 (UTC)

I understand why these provisions are needed, I just don't feel they belong in the Charter. They belong in the main body of the Constitution. For example in the American Constitution, the functions and workings of the legislative branch are set out in the main body of the constitution, not in the Bill of Rights (although I understand that the legislative branch was affected by further ammendments...by Bill of Rights I'm referring, as everybody else does to the first eight ammendments) Loomis51 13:45, 4 March 2006 (UTC)

I understand what you are saying. The provisions appear to describe the structure of part of the democractic system in canada and don't seem to convey rights directly to individuals per se, much like many of the sections in the Constitution Act, 1867. However, in its defence I think they can be seen as appropriate. The democratic section as a whole ensures that people not only get the right to vote but they get the right to vote on a regular basis by ensuring that the government actually does something once elected and eventually leave. The right to vote would be very hollow without the other sections. I also suspect that the provisions were put in the Charter in order to allow for a broader set of remedies. In theory the Court could order an election under section 24(1), but I don't think that's possible under section 52. In the end, I wouldn't go so far as to say sections 4 and 5 are entirely inappropriate for the Charter, but I think they could fit in either document. -PullUpYourSocks 15:42, 4 March 2006 (UTC)

Fair enough, PullUpYourSocks...I'd just like to add how refreshing it is to have a civilised back-and-forth on Wikipedia. So often the pettiest of issues degenerate into name calling. Maybe its because we're Canadian :) Thanks again. Loomis51 10:56, 6 March 2006 (UTC)

Picture

Should the picture of the Charter itself be at the top of the page? The contents can be put down later.Habsfan|t 01:34, 9 May 2006 (UTC)

I think the template should stay on top so it doesn't jump around when you go from article to article. CanadianCaesar Et tu, Brute? 03:33, 9 May 2006 (UTC)

While CanadianCaesar has a good point, I don't think the template jumping around would matter too much - I think the article would look better with the charter displayed first thing. Ouuplas 00:37, 2 August 2006 (UTC)

I suggested that three months ago.--Anchoress 19:57, 2 August 2006 (UTC)

Italics

According to Wikipedia:Manual of Style (titles)#Neither, the title of "legal or constitutional documents" should not be italicized. Personally I find it awkward to see Charter italicized every time, the capital-C is enough. Anyone disagree? --Mathew5000 07:37, 28 June 2006 (UTC)

• The italics in this article were prompted by Wikipedia talk:WikiProject Canadian law under "Citing legislation". CanadianCaesar Et tu, Brute? 07:38, 28 June 2006 (UTC)
  • Okay, but it's a little strange that the style in articles on Canadian law does not follow Wikipedia's general MOS. --Mathew5000 07:59, 28 June 2006 (UTC)
    • I can't say I'm knowledgeable about what Americans and British do with their laws. That might be part of what went into the MOS. Then again, I could be wrong. CanadianCaesar Et tu, Brute? 08:00, 28 June 2006 (UTC)

As a Canadian I would like to point out that some of us here in Canada think the Charter is a complete joke. The idea is that we have rights, but they can be limited by the Supreme Court, an unelected body, is beyond sad. If one has a right, why should it be written down - it should be understood and a given. It is written down so that the government and whoever else has the money to take a case to the Supreme Court (which is very expensive) can whittle away our rights. It may look nice on paper but that's about it. DParker

Is it just me...

Is it just me, or is there an abundance of Canadian content on Wikipedia, especially as the featured article. I'm not complaining, being Canadian myself (so maybe I am just noticing something cognitive that isnt there), but does anyone else seem to notice this as well? Especially when comparing the relative size of Canada's population to other English speaking countries. Please, no one take offense, I'm just making an observation.

As far as legal articles go, there are many more American featured articles- in fact this is the only Canadian one. American legal featured articles include: Article One of the United States Constitution, Dred Scott v. Sandford, Equal Protection Clause, Federalist No. 10, First Amendment to the United States Constitution, Lawrence v. Texas, Roe v. Wade, Section summary of the USA PATRIOT Act, Title II, Separation of powers under the United States Constitution, Supreme Court of the United States, Texas Ranger Division, Twelfth Amendment to the United States Constitution, United States Bill of Rights, United States Constitution, USA PATRIOT Act, Title III, Subtitle A. CanadianCaesar Et tu, Brute? 01:26, 2 August 2006 (UTC)

Canada also has the security certificates article in its domain, which has some bearing on the charter: http://en.wikipedia.org/wiki/Security_certificate Rfirla 02:38, 2 August 2006 (UTC)rfirla

Support for Charter

I can't believe that this article got to FA status with the following statement:

... the Charter has attracted both passionate support from liberals and criticisms by opponents of increased judicial power.

I removed the word "liberals" with the edit summary: "Not only liberals support the Charter." Someone then substituted the word "progressives." That too is misleading. All polls indicate that the Charter has broad-based support in Canada. True there is opposition to it and that is reflected in the second half of the sentence.

I've substituted the former wording with the following statement:

... the Charter has attracted both broad support from a majority of the Canadian electorate and criticisms by opponents of increased judicial power.

If we cannot agree on this, I would suggest that the sentence be removed entirely until we can agree on appropriate wording here. Sunray 07:46, 2 August 2006 (UTC)

Seems reasonable to me. --PullUpYourSocks 13:24, 3 August 2006 (UTC)

I think the sentence itself -- no matter how it's phrased -- seems to imply that there is a fiercely-raging debate in Canada over the Charter: which isn't the case. When 9/10 people support the document, I don't think we can really call it a "debate". If we're talking about political posturing, I'm for removing the sentence entirely. However, if we're talking about legal-academic arguments, that's a completely different issue. --Todeswalzer 19:18, 15 October 2006 (UTC)

The debate is not really about the charter (which enjoys support across the board, AS WRITTEN), but the living tree doctrine, in other words, it's the ever broadening interpretation of the charter that is the issue. Deet 19:46, 15 October 2006 (UTC)

Canadian Charter of Rights and Quebec

I'm not an expert on the topic, but I felt this part of the article seemed to be lacking as to the usual neutral stance towards political issues you would want to see in wikipedia.

"Nevertheless, Quebec did not ratify the Charter (or the Canada Act 1982), either because it was then led by the uncooperative Parti Québécois or because it felt excluded from the negotiation of the Kitchen Accord.[6] The Charter is still applicable in Quebec because all provinces are bound by the Constitution. However, Quebec's formal rejection has led to several failed attempts to amend the Constitution, such as the Meech Lake Accord, which were designed to earn Quebec's approval."

I don't think "uncooperative", used to characterise the Parti Québécois, is appropriate here. The reason for Quebec's not ratifying the charter should not be given as its being led by the Parti Québécois. Perhaps mention could be made as to why the PQ was opposed to the charter. At the very least, it should be stated that the PQ was opposed to or did not agree with the charter. Stating the reason as being simply the fact that it was led by the PQ seems to lack in objectivity. The second part that I find problematic is the "it felt excluded from the negotiation of the Kitchen Accord". I know this issue is surrounded by much controversy, at least it still is in Quebec I think, but to my understanding Quebec was excluded from the Kitchen Accord. Correct me if I’m wrong but my understanding was that the accord was essentially concluded without the PQ's knowledge, so the "felt excluded" might not be correct. Lastly, I think that to "earn Quebec's approval" makes it sound as though the Meech Accord was designed to please a difficult Quebec. Something in the lines of amending the Constitution so as to include Quebec would seem less partial. Unsigned comment by Darielab 2006-08-02 08:04:55

I agree with what Darielab has said, above and would urge him to be bold in going ahead with the changes he has suggested. On his general point that the article seems to be "lacking in [Wikipedia's] usual neutral stance toward political issues..." I've read the article through with that in mind and think that there are a number of NPOV issues needing attention. Sunray 15:49, 2 August 2006 (UTC)

If you look through the source, what's there pretty much reflects what's here. On the one hand Quebec nationalists said they felt excluded, and on the other hand federalists said the PQ were uncooperative. To say that the PQ were excluded is an overly simplistic version of events. CanadianCaesar Et tu, Brute? 19:18, 2 August 2006 (UTC)

Fair enough, perhaps "uncooperative" should be left in as it might reflect the view of some federalists. However, "felt excluded" would then seem like an understatement. After all, the kitchen accord essentially was essentially conducted without the knowledge of the PQ. I thought it might be good to add a reference to the article on Patriation. Also, I thought that "to include Quebec in the Charter" was more neutral than "earning Quebec's approval".--Darielab 23:31, 3 August 2006 (UTC)

I would like to remind you that even the Quebec Liberal Party (federalist) was against the kitchen accord and still is... In fact, Quebec had 3 liberal governments (Bourassa 2 times and Charest) and the 1982 constitution is still not signed. Is the Liberal party "uncooperative"? It's definitevely a POV and it's quite off the mark. I would like to remind that the PQ AND the PLQ voted AGAINST the Kitchen Accord in a special motion of the National Assembly (the Quebec house of parliement) because it included none of the "traditionnal Quebec demands". It's also interesting to note that nowhere in this article or in the Kitchen Accord article there's a mention that Quebec was promized a veto and special fiscal rights and that the lost of these advantages in what most Quebeckers call "la nuit des longs couteaux" that sparked anger in Quebec. Uncooperativeness, yeah right. Bad faith? (Source Radio-Canada: http://archives.radio-canada.ca/IDC-0-17-982-5730/politique_economie/rapatriement_constitution/clip8) Dominique

At least the Liberals would have negotiated. The PQ wasn't. Both sides are now represented in the article anyway.

CanadianCaesar Et tu, Brute? 18:31, 4 August 2006 (UTC)

That's a POV. Please. It's not a question of having both sides represented, it's a question of POV vs NPOV. Please, please read this: http://archives.radio-canada.ca/IDC-0-17-982-5730/politique_economie/rapatriement_constitution/clip8 You'll see that 111 deputies on 120 voted (and that means all the liberal and PQ Mps!) and named René Levesque as chief negociator for this constitutional round. That's a fact. This article reeks of an antiseparatist bias.

Riiiiight... "because it was excluded from the negotiation of the Kitchen Accord, which the provincial leaders saw as being too centralist" is anti-separatist bias... we're now supposed to delete referenced notable fedearal opinions, marked in the article as "alleged", to reflect the opinion of nationalists. This article has a talent for attracting anti-Canadian extremists. Sigh CanadianCaesar Et tu, Brute? 18:51, 4 August 2006 (UTC)

...Whatever. Let's focus on the NPOV statement now. We could replace: "Nevertheless, Quebec did not ratify the Charter (or the Canada Act 1982), either because it was then led by the allegedly uncooperative Parti Québécois or because it was excluded from the negotiation of the Kitchen Accord, which the provincial leaders saw as being too centralist" by something like : "Nevertheless, Quebec' representatives refused to endorse the Kitchen accord, and did not ratify the Charter (or the Canada Act 1982)". I find it neutral, in a "state the facts" way, and closes the door to eternal and useless discussions. This is an article about the charter of rights, not about the canadian constitutionnal problems. Dominique

Agreed. I don't think trying to represent opinions is the way to go here, whether they be notable, extremist or otherwise. I find Dominique's proposal to be adequate.--Darielab 23:23, 7 August 2006 (UTC)

I disagree, of course; people will want to know why Quebec didn't sign; Wikipedia is here to present information and doesn't need to be embarrassed if the information includes opinions that embarass anti-Canadians. Wikipedia is not censored. CanadianCaesar Et tu, Brute? 23:48, 7 August 2006 (UTC)

Two points: First, the word "ratify" is wholly wrong for this context. That word suggests a formal approval process that is a component of the document becoming law (similar to the procedure for constitutional amendment in the United States, where any amendment must be ratified by 3/4 of the state legislatures before becoming law). For the Canadian situation pre-1982, the word "support" should be used instead of "ratify". Also it should be made clear that in most cases, what is meant is the support of the premier of the province, as opposed to the legislature. Second point: As to the reason why the Premier (and, in this case, legislature) of Quebec did not support the Canada Act 1982, it is highly unsatisfactory to say "because the PQ was uncooperative" or some variation on that. It is also unsatisfactory to say "because Quebec was excluded from the Kitchen Accord", which suggests that Quebec did not have any real objection to the substance of the Canada Act 1982 but merely objected to the manner in which it was developed. In reality, the main reason why Quebec did not support the Canada Act 1982 was because of the new amending formula, and in particular the condition placed on compensation in section 40. --Mathew5000 01:50, 8 August 2006 (UTC)

I made edits in accordance with my comments above. I retained the citation to the article from the CBC web site. The key passage in that article which alludes to what is now section 40 of the Constitution Act, 1982 is this: "The late-night bargaining included another change: the deal dropped Lévesque’s prized opting-out clause, which would have allowed the province to opt out of shared federal-provincial programs but receive equivalent funds to set up its own programs." --Mathew5000 02:39, 8 August 2006 (UTC)

The source also references the other theories. I see no reason to exclude them. CanadianCaesar Et tu, Brute? 02:41, 8 August 2006 (UTC)

The article doesn't talk about theories. It talks about (1) the substantive reason for which Lévesque opposed the Kitchen Accord, and (2) the reason why he was "incensed" by the way the other premiers negotiated it at night without calling him. The article is silent about the primary reason for which the Quebec legislature subsequently passed its resolution of disapproval. For purposes of this article, on the Charter, it is worth mentioning the substantive reason for Quebec's opposition to the 1982 package (we might also mention the minority rights education provisions, s. 23), but not the diplomatic slights that occurred in 1981, which are only marginally relevant to Quebec's continued opposition to the Canada Act 1982. The way this article was previously worded (prior to my edits), made it seem like Quebec opposed the Charter only because its feelings were hurt. --Mathew5000 03:00, 8 August 2006 (UTC)

It doesn't talk about theories? Purposive interpretation is a theory. Your reasons for the rejection, which are now included, are just as valid as other reasons for rejection; with a matter as complex as this, there are a lot of views flying around, and nationalists singing the Lucien Bouchard blues like to talk about how Quebec was humiliated. Perhaps it was, though that's not the opinion I hold personally. CanadianCaesar Et tu, Brute? 03:14, 8 August 2006 (UTC)

I think you are misunderstanding something. I do not have any reasons for the rejection. I am not even from Quebec. My personal opinion is that Quebec did not have any valid reason to oppose the 1982 package. But whether a reason is valid or not is just a question of opinion; the issue in writing the article is first of all establishing what the reasons actually were; only then, perhaps, could we attempt a discussion of various assessments as to whether those reasons are valid. But even that would not belong in the article on the Charter; it should go in an article like Canada Act 1982.--Mathew5000 03:51, 8 August 2006 (UTC)

Also it is confusing to say "Quebec did not support the Charter (or the Canada Act 1982)" because that suggests they are two separate things. An accurate way of phrasing this would be "Quebec did not support the Canada Act 1982 (which included the Charter)". --Mathew5000 03:51, 8 August 2006 (UTC)

It is inaccurate to use the phrase "Quebec's formal rejection". There is no "formal" rejection; Quebec had no formal means to reject the document. All Quebec can do (and all it did) was pass a resolution in its legislature opposing the patriation package. It is also misleading to talk about Quebec's "signature" on the document, for the same reason. There is no place to "sign" it; that's just a political euphemism. Using inaccurate terminology like that just creates confusion. The reality is that the government and legislature of Quebec both expressed their opposition to the Canada Act 1982 (not the Charter specifically, although of course it is included) and have never changed that position. --Mathew5000 03:11, 8 August 2006 (UTC)

One other thing about that paragraph. It is peculiar use the phrase "because it was then led by the allegedly uncooperative Parti Québécois". It is analogous to saying something like, "In 2003, Canada did not join the Iraq war because it was then led by the Liberal Party." Yes, it might well be true that if another party had been in power in Ottawa, Canada would have sent troops to fight in Iraq, so in a literal sense you can defend the causative relationship between the Liberals being in power and Canada not having joined the Iraq war. But for encyclopedic purposes, that really just finesses the question of why the Liberal government decided not to join the Iraq war. It does not provide additional useful information to say "Canada did not join the Iraq war because the Liberals were in power and they decided not to join the Iraq war." --Mathew5000 04:05, 8 August 2006 (UTC)

Out of curiousity, do you ever get tired of endlessly sniping at other people's work? The key to that sentence isn't the party; to baldly name the party wouldn't achieve much and your points are valid in that respect. The key here is the allegation that the PQ would never cooperate. As for your accusations that I think you're from Quebec and disapprove of the Charter, I never said anything of the sort. Different reasons have been given for what happened and it's POV to pick only one. CanadianCaesar Et tu, Brute? 04:13, 8 August 2006 (UTC)

Sorry if some of my comments were less tactful than they could be. That said, I have not "sniped"; all my comments here are directed at improving the article. Also I wouldn't "accuse" anyone of thinking that I am from Quebec; it doesn't really matter either way but I thought I should clarify that I am not. --Mathew5000 04:31, 8 August 2006 (UTC)

I just don't think it's necessary to fill up half a talk page regarding the changing of a single word, be it ratify to support, or dropping the word "formal", or switching around the order of which is mentioned first, the Canada Act or the Charter. The way it's there makes sense; the Charter hasn't been approved, nor has the package as a whole. But it's not worth a huge debate. CanadianCaesar Et tu, Brute? 04:39, 8 August 2006 (UTC)

I like to justify my edits on the Talk page if I think they might be contentious. --Mathew5000 04:46, 8 August 2006 (UTC)

Wow, this section indeed has got a whole lot longer! That said, I think some of the points raised by Mathew5000 are important. Among others I agree that using the phrase: "because it was then led by the allegedly uncooperative PQ" can not be a valid reason in itself to explain Quebec's not adhering to the charter. Also I think it is a matter of POV to state that the PQ was uncooperative. I think its fair to say that the PQ did participate in the negociations, so an explanation of why it was deemed they were uncooperative (and therefore how not supporting the charter would fit in with this) should be given to present this view adequately. I also agree that simply stating the fact that they were excluded from the kitchen accord is maybe a little simplistic. This may have angered Lévesqued and cause him to leave, but is not enought to explain Quebec's rejection of the Charter. An explanation as to why Quebec legislature rejected the patriation package might be good.

I think Mathew5000 should go ahead and make the changes he proposed. I don't think they are insignificant at all. Adding clarity to an article can't be a bad thing, especially since this is an encyclopedic article. I also think it's great he took the time to explain the changes he made or would like to make. At least it is a better use of the talk page than throwing around terms like "sniping", "singing the Lucien Bouchard blues" or "anti-canadian extremists" (Wikipedia is not a battleground). Darielab 20:44, 16 August 2006 (UTC)

This is becoming plainly ridiculous. We can't change what the reference says. At some point it's POV to exclude some things. The article does not state the PQ was uncooperative. Stop pretending that it does. Some substantive policy reasons are given. CanadianCaesar Et tu, Brute? 21:07, 16 August 2006 (UTC)

You're right it no longer does. It says "alledgedly uncooperative" but the point is that this is not an explanation in itself. On another line of thought, the new phrasing of the sentence: "Nevertheless, Quebec did not support the Charter (or the Canada Act 1982), either because it was then led by the allegedly uncooperative Parti Québécois, or because it was excluded from the negotiation of the Kitchen Accord, which the provincial leaders saw as being too centralist, or because of objections to its provisions relating to the process of future constitutional amendment.[7]" is unclear. This should be rephrased - perhaps divided into two sentences. Darielab 14:16, 18 August 2006 (UTC)

The phrasing of this section reads just like a piece of anglo-canadian propaganda. It sounds as if Quebec didn't have any reason for refusing to sign the Canadian Charter while there is a clear and rational explanation. (They were excluded from the negociations). It's not because the Parti Quebecois was uncooperative. They had previously participated in the talks and they were not against the canadian charter. I wonder how this became a featured article. 70.80.73.22 22:18, 25 November 2006 (UTC)

On Quebec's rejection of the Canada Act 1982

I think the reasons why Quebec did not agree to the constitutional changes and still does not today is not very well known in English-Speaking Canada, probably because of the climate of confrontation between Ottawa and Quebec on everything involving constitutional and national questions.

Normally, I thought it would be easy to find good factual, 100% neutral and boring informations on this topic online, but it seems the materials from the Journal des débats available from the website of the Quebec National Assembly only include recent stuff (between 1992 and today) and old stuff (archives between 1867 and 1933). That's not convenient... Can anyone check to see if maybe I overlooked something? (http://www.assnat.qc.ca/)

What is available in both English and French from the CBC/Radio-Canada website only scratches the surface but is a start.

• http://archives.radio-canada.ca/IDD-0-17-982/politique_economie/rapatriement_constitution/

• http://archives.cbc.ca/IDD-1-73-1092/politics_economy/Patriation/

In 2001, the governement of Quebec published a document entitled Québec's Positions on Constitutional and Intergovernmental Issues from 1936 to March 2001. It is available in English translation here:

• http://www.saic.gouv.qc.ca/institutionnelles_constitutionnelles/table_matieres_en.htm

The point of view I am familiar with is this one:

1. Section 16 to 22 were specifically designed to impose Ottawa's POV on language matters, effectively preventing Quebec from implementing its language management policy which is based on the territorial principle and not the personality principle.

2. Quebec was willing to abandon its constitutional veto in exchange for the ability to retract from any federal program with full financial compensation (Opting Out), but ended up losing the first and not getting the second.

3. The ability of one province to have full control over what the constitution defines as "exclusive provincial jurisdictions" cannot be worked around without making a mockery of the principles federalism.

3. Despite differences in the interpretation of the facts between the PQ and the Quebec liberals, both agree on the fundamentals (Quebec as a nation, Ottawa pushing for a unified nation-state against the principles of federalism etc.), hence the reason that Quebec still does not agree to the constitutional move of 1982. -- Mathieugp 04:50, 17 August 2006 (UTC)

Limitations/Notwithstanding Clause and Bill of Rights

From the article: "The United States Bill of Rights can be contrasted with the Canadian Charter in that the latter contains a limitations clause and the former does not. The Supreme Court of Canada has consequently approached rights in the Canadian Charter with a view that they are more generous. Conversely, as the US Bill of Rights has no limitations clause or notwithstanding clause, the Supreme Court of the United States must define rights provisions themselves more conservatively."

This sort of convoluted logic is at best counterintuitive and at worst outright spin. Shouldn't the fact that the US Bill of Rights doesn't have similar clauses be evidence that it is, in fact, the more generous document? "Conservative" US Supreme Court decisions can be, and often are, often reversed. On the other hand, the Charter of Rights and Freedoms itself, especially via the notwithstanding clause, essentially gives the government carte blanche to outright suspend a broad swath of rights. The limitations clause merely codifies the traditional US practice of judicial review, but in decidedly negative terms (i.e., determining which laws can get away with infringing rights to a certain extent, as opposed to striking down laws which infringe upon rights too much). -- Jason Jones 09:21, 3 August 2006 (UTC)

I agree the passage could be stated better. However, I think what it is getting at is that the approach to rights are different and that Charter provides greater theoretical rights. The conditional nature of Charter rights have made them very easy to invoke, to a point where, if they were absolute they would probably cripple the government. For example, without the limitations clause roadside ads could be huge and distracting as they like or could even be disguised as municipal roadsigns, but even if they cause accidents, the government would not be able regulate them at all because it would violate their freedom of expression. The limitation clause is where the government has a burden of showing that the violation was necessary and should be permitted. The result is that the US and Canada enjoy the same actual protections, only the scope of theoretical protection in Canada appears to be larger. This difference, really, is just academic, and not really make that much difference in substantive rights. Section one, however, is not the codification of judicial review, that is found in section 52 of the Constitution. --PullUpYourSocks 13:24, 3 August 2006 (UTC)

On the whole I am satisfied by the changes you have made to the relevant section. I must note that you remove all mention of the notwithstanding clause in the passage. The provisions of the notwithstanding clause seem to me a good deal further-reaching than those of the limitations clause. I know that they are rarely used, but the possibility of their use applies nonetheless. Although I am (admittedly) no expert in law or Canadian law in particular, I think some mention of the applicability of the notwithstanding clause should be included here.

Also, thank you for pointing out to me my error regarding judicial review. I'm sure you do see how the limitations clause relates to the concept, and how I could have made such an error as I did. -- Jason Jones 22:52, 3 August 2006 (UTC)

History

It is inappropriate and POV to refer to Trudeau as "Liberal Attorney General Pierre Trudeau". He was the Attorney General and his party affiliation should not be used as a descriptor in that context.

Where is the document kept?

I didn't see a mention of where the original document is kept. I think this should be included somewhere in the article. Anyone know, and can add? 45.48741°N 75.67767°W / 45.48741; -75.67767 --Mathew5000 15:02, 6 February 2007 (UTC)