Comments on: Amici Curiae: Badgering Counsel, Judicial References and Simian Abolitionism Edition http://www.thecourt.ca/2009/10/30/amici-curiae-badgering-counsel-judicial-references-and-simian-abolitionism-edition/ The Court is the online resource for data and debate about the Supreme Court of Canada. Fri, 10 Feb 2012 22:34:40 +0000 hourly 1 http://wordpress.org/?v=3.3.1 By: m.diane kindree http://www.thecourt.ca/2009/10/30/amici-curiae-badgering-counsel-judicial-references-and-simian-abolitionism-edition/comment-page-1/#comment-248881 m.diane kindree Mon, 22 Nov 2010 16:35:07 +0000 http://www.thecourt.ca/?p=2641#comment-248881 Please note this important correction/error: (5 years does not apply to not withstanding clause but to overriding of portions of the Charter (Section 33). I deeply appologize for this mistake. It is the enacting of changes to the Charter which can be enacted for a period of five years which then allows time for an election and politicians/lawyers to debate and most importantly, the citizens of B.C. to vote on whether or not to amend the Charter and allow this limitation to stand. This limitation has been used for hate speech (eg. in R. v. Keegstra) and obscenity (eg. R. v butler) and may have been another option, years ago, in this case? My question related to this is: Would this approach have survived the courts standard of review for reasonableness and correctness under these circumstances? Is there any time limit to the reasonable limit clause? Has it been applied in any other cases and how? Please note this important correction/error: (5 years does not apply to not withstanding clause but to overriding of portions of the Charter (Section 33). I deeply appologize for this mistake.

It is the enacting of changes to the Charter which can be enacted for a period of five years which then allows time for an election and politicians/lawyers to debate and most importantly, the citizens of B.C. to vote on whether or not to amend the Charter and allow this limitation to stand. This limitation has been used for hate speech (eg. in R. v. Keegstra) and obscenity (eg. R. v butler) and may have been another option, years ago, in this case? My question related to this is:

Would this approach have survived the courts standard of review for reasonableness and correctness under these circumstances?

Is there any time limit to the reasonable limit clause? Has it been applied in any other cases and how?

]]> By: m.diane kindree http://www.thecourt.ca/2009/10/30/amici-curiae-badgering-counsel-judicial-references-and-simian-abolitionism-edition/comment-page-1/#comment-248814 m.diane kindree Mon, 22 Nov 2010 02:39:44 +0000 http://www.thecourt.ca/?p=2641#comment-248814 Polygamy and Section One of the Charter which outlines "reasonable limits prescribed by law" and "demonstrably justified" in a free and democratic society---the Canadian marriage law is based on monogamy and until this legal definition is amended, two or more wives and/or husbands is illegal. Under the reasonable limit clause or limitation clause the provincial government can legally limit an individual's charter rights (temporary invalidation by the notwithstanidng clause of the charter for 5 years) if the individual is engaging in "unlawful" behavior. It is also within the power of the AG to enact provincial legislation that can override portions of the Charter (Section 33) to read "fundamental freedom of conscience and religion provided the religious practices support the Canadian legal definition of a marriage." Thus, section 2 of the charter is not violated and supports the principles that "recognize the supremacy of God (religious freedom) and the rule of law." Freedom of Religion and the Charter: I would like to discuss the obvious exclusion of the Atheist from the Charter since freedom of non-religion and rejection of the "supremacy of God" theoretically does not appear in the Charter to guarantee the same rights and freedoms for the Atheist. While the court allows for a person to choose to swear on the bible or not, according to one's beliefs, the Charter enforces the "principles that recognize the Supremacy of God." I would like to put forward this argument: Under the Charter, the only substantive guarantee (for believers and non-believers) and common to all Canadians is the "rule of law" which has legally defined a marriage. In my opinion, marriage is still a legal contract in Canada whereas, practicing a religion is not. Thus, anyone who breaks the law and takes multiple wives and/or husbands should be made accountable and responsbile for their actions. This is the only way to ensure equality under the law whether or not you choose to practice any religion. It is my understanding that the Fundamentalist Mormon sects do not permit polyadrous union (wife with multiple husbands) which speaks to the issue of discrimination. The problem is that the reading of all Charter guarantees must effectuate their equal guarantees to men and to women and therefore, the law would need to be amended to legalize both polygyny and polyandry. (Not likely) In short, religious freedom is not absolute if it conflicts with the law of the land. Polygamy and Section One of the Charter which outlines “reasonable limits prescribed by law” and “demonstrably justified” in a free and democratic society—the Canadian marriage law is based on monogamy and until this legal definition is amended, two or more wives and/or husbands is illegal. Under the reasonable limit clause or limitation clause the provincial government can legally limit an individual’s charter rights (temporary invalidation by the notwithstanidng clause of the charter for 5 years) if the individual is engaging in “unlawful” behavior. It is also within the power of the AG to enact provincial legislation that can override portions of the Charter (Section 33) to read “fundamental freedom of conscience and religion provided the religious practices support the Canadian legal definition of a marriage.” Thus, section 2 of the charter is not violated and supports the principles that “recognize the supremacy of God (religious freedom) and the rule of law.”

Freedom of Religion and the Charter:

I would like to discuss the obvious exclusion of the Atheist from the Charter since freedom of non-religion and rejection of the “supremacy of God” theoretically does not appear in the Charter to guarantee the same rights and freedoms for the Atheist. While the court allows for a person to choose to swear on the bible or not, according to one’s beliefs, the Charter enforces the “principles that recognize the Supremacy of God.” I would like to put forward this argument:
Under the Charter, the only substantive guarantee (for believers and non-believers) and common to all Canadians is the “rule of law” which has legally defined a marriage. In my opinion, marriage is still a legal contract in Canada whereas, practicing a religion is not. Thus, anyone who breaks the law and takes multiple wives and/or husbands should be made accountable and responsbile for their actions. This is the only way to ensure equality under the law whether or not you choose to practice any religion.

It is my understanding that the Fundamentalist Mormon sects do not permit polyadrous union (wife with multiple husbands) which speaks to the issue of discrimination. The problem is that the reading of all Charter guarantees must effectuate their equal guarantees to men and to women and therefore, the law would need to be amended to legalize both polygyny and polyandry. (Not likely)

In short, religious freedom is not absolute if it conflicts with the law of the land.

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