(The) Majority of Canadians: Charter anomalies -- Remedies, Deference to Executive/Legislative Powers & "Reading In"

Ranjan K Agarwal & Carl J. Di Carlo

Bennett Jones LLP

Dear Messers Agarwal and Di Carlo,

Thank you for Remedies - Formalism in Rights Remedies which I spotted in the August 23/12 Mondaq Newsletter.

Please excuse my inability to highlight the exact portions of your paper in .pdf (appended below) to show the precise references that made me recall the SCC decision to "write in" an analogous ground "sexual orientation" into 15(1) of the Code that-added-limits-and conditions to the Rights and Freedoms that we already enjoyed under the Common Law.

How can the Court cite and, your article blithely discuss the following?

-   "that if Parliament intended to grant this ( ...) it would have used this specific term.";

- "[a] liberal and purposive interpretation cannot supplant a textual and contextual analysis simply in order to give effect to a policy decision different from the one made by Parliament";

- [the Court] made clear that Charter remedies would not be available to the public in the face of legislative will to the contrary. Ultimately, the extension of the Charter's reach to "ordinary people" is fettered by the intent of the legislature." ;

- "Parliament was entitled to withdraw these powers from the Board and, barring a constitutional challenge to the legislation, no judicial fiat can overrule Parliament's clear expression of intent.";

- ".. the Court's formalism. It is suggestive of a view of the law wherein courts should be careful not to impinge upon the (E)xecutive, (....) this decision suggests that the Court is conscious of maintaining the separation between the different branches of government";

- "The results, far from being "far-reaching", are reflective of this Court's deference to the legislature";

- "in carrying out their duties, courts are not to second-guess legislatures and the (E)xecutives; they are not to make value judgments on what they regard as proper policy choice...";

- "... the Charter was not intended to turn the Canadian legal system upside down ...s.24(1) did not confer new jurisdiction (...) beyond that which was intended by the legislator.";

- "...unless the legislature explicitly grants this power in the enabling statute.";

- "While this interpretation showed respect to the intents of Parliament (...) this interpretation (...) [has] lead[s] to inconsistencies between the stated purpose of the [Charter] and its implementation."

- "... reveal a conception of the rule of law where there is a rigid separation of powers and courts should be circumspect regarding their role vis-a0vis the legislature".

When the "reading in" of a new "group" was initiated, permitted, accepted and incorporated in the Constitution Act 1982 by the same SCC and subsequently never challenged by anyone with a LLB? or even someone with an LLM (constitutional Law)?

Did the 1995 Egan case (see History of Homo/Same-Sex law in Canada) galvanize the Public's attention upon a ?perceived oversight? - were there no notes on the discussions of the premiers and poobahs that haggled over what was "in" or "out" the original s.15(1)?

or, perhaps the SCC's thinking was based on the spontaneous-emergence of a totally-new, sub-category/group of Canadians" now-deemed worthy of protected-status/amelioration in an evolving "democratic constitutionalists" (1) society?

Rce

1. Prof D. Dyzenhaus's term to describe a contrast-to-formalism that you include in the piece, is similar to the "Living Tree" idea - the gradualist-Menchevik approach of all post-modern, social-democrats working towards their Syndicalist/ Corporatist/ Fabian dream world where "they know better & therefore will decide what's best"

"All truth passes through three stages. First, it is ridiculed. Second, it is violently opposed. Third, it is accepted as being self-evident." -Arthur Schopenhauer (1788–1860)

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