Saturday, 12 January 2013

Claws Notwithstanding: Understanding Section 33

    "Know your rights."  How many of us see this as an expression of chastisement, one which reprimands us for being all too under-informed of our opportunity to legal recourse?  How many Canadians can recite, verbatim, sections 7-15 of the Charter, or have a handy copy readily available?  Unfortunately, what many of us do not know is that Canadians don't have rights.  "Know your rights" is fundamentally an American term, as enumerated via the American Bill of Rights, ratified circa 1791.  Americans are guaranteed 'unalienable rights,' which cannot be encroached upon by anything.  That's one of the reasons why it's been so difficult to curtail gun legislation there in recent years.  Any modification of the original Constitution is seen as a basic infringement upon the life and liberty of citizens.  In Canada, this can never be the case as long as we have Section 33.
    Section 33, ratified in 1982 as part of the Constitution, reads as follows: 33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15.
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).
     What this means in social context is that our 'rights' are not 'inalienable.'  In theory, absolutely anything...ranging from our section 7 entitlement to "life, liberty, and security of the person" to freedom from unsafe search and seizure to presumption of innocence may be modified or repealed for up to five years.  This means that, in theory, if Stephen Harper hates you and wants you dead, a simple majority vote in the House of Commons can nullify your Charter rights.
    In practice, Section 33 has rarely been used for anything other than broader social issues.  The federal government has yet to evoke it, only three provincial jurisdictions have ever done so, and likewise only two of the three Territories have done so.  In 2000, Alberta evoked it to maintain the traditional heterosexual definition of marriage, but the federal government shut them down because federal legislation overrode provincial legislation in that matter.  Alberta also once tried to use Section 33 in an attempt to prohibit litigation on the matter of forced sterilizations resulting from the Forced Sterilization Act.  Quebec evoked the most famous usage of the Clause in 1989, after having used it to abrogate the entire Charter for five years after its inception in 1982.  In 1989, Quebec tried to legislate against being obliged to subsidize bilingual road signs, and succeeded.  This law only got repealed in 1993 after censure from the United States Human Rights Committee.  If you're an Ontarian teacher, this next bit will interest you.  In 1988, the Saskatchewan government ordered striking employees back to work with the SGEU Dispute Settlement Act, later using the Notwithstanding Clause to expedite things, though the original motion was later found to be valid and so the usage of the Clause was superfluous.  In 2006, Paul Martin attempted to bring publicity to this concern, and was denigrated for doing so because his addressing the matter had gone unannounced during the previous election and seemed too unilateral.
    The Clause is an attempt by the Quebecois to strongarm Canada's legislature into anti-federalist and ultimately anti-democratic politics.  It was suggested to Trudeau in 1982 by Chretien, a Quebecois, and has most often been used to benefit...guess who?  Quebec used it to make itself a pariah state within Canada.  The reason I call this 'undemocratic' is because transparency is presently key to understanding and properly exercising one's rights.  The truth is that most Canadians aren't even aware of the all-pervasive nature of this bill.  The government can, in theory, curtail your so-called 'rights' at any time, because the Quebecois wanted a way to screw the federalists and got it.  I fail to understand how Chretien ever went down in history as a 'federalist' after becoming the main proponent of a bill which clearly stood to benefit mostly the French.
    I am proud to be a Canadian because of universal healthcare, which I see as a monumental achievement.  Our country has the same predicament of national identity now as Russia had in the 1860s, around the same time as Confederation happened here.  Back then, the Russians were divided into two camps; Slavophils (nationalists), and Nihilists (the popular term given to proponents of European doctrines).  There were those who wanted to make Russia New Germany, or New France.  From Day 1, Canada has been a reactionary.  One of the big reasons for Confederation was because we feared imperialism by sectarians in the American Civil War, and wanted a military.  Much of our legislation was later modeled after the United States and the United Kingdom.
    Canada's national demeanor, with some notable exceptions, has always been apologist.  Unlike our American brothers, we never broke away from the United Kingdom by force.  If the United States was a rebellious teenager which emancipated itself from its parents early, then Canada was the proverbial 'late bloomer' which hung around the house, outstayed its welcome, and finally got kicked out at age 30 when the British couldn't afford to run their empire anymore.  We've never had a national sense of 'independence,' the revolutionary spirit which serves as an impetus to our Southern neighbors.  Despite a superb display by our military in both World Wars, Canada has always been reputed most for its peacekeeping efforts.  We're seen as the conciliatory younger brother with an all-pervasive inferiority complex.
    Our ancestors beat the French in 1759, yet it's still impossible for Anglophone men and women of my generation to find jobs in many parts of Canada without speaking fluent French.  Never mind immigration laws, which admit minorities willing to occupy minimum-wage jobs which could otherwise be taken by said Canadians (not to mention the fact that, ironically, Quebec has a wide reputation as the most 'racist' province in Canada despite its repeated appeals for 'equal rights' ever since the Quebec Act; see the Herouxville incident of several years back).  Canada prides itself as being a cultural 'compromise.'  This is no more evident anywhere than it is in Ottawa, where I live.
    Might makes right when it comes to warfare, if nothing else.  In some ways, Canadians are years behind their time when it comes to dealing with this issue.  What many see as a peaceful coexistence, others see as a mutually detrimental debacle.  I myself am an example of this.  I, an Anglophone, have a fiancee who was raised in a francophone household.  The Canadian political situation in that respect is, indeed, a lot like a marriage, albeit a highly dysfunctional one a lot of the time.       

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