Trampling Individual's Rights
Commentary by Joe Gingrich
Why be concerned? Because Canada does not now recognize inherent or natural or God given rights. All of our "rights" are actually privileges, granted by the government, and subject to removal at the government's whim due to Section I. We must change all that and I feel we can.
As Bruce and Donna Montague continue to say, the preamble of the Charter allows us to put the judges and the politicians in their rightful places. We do have rights not granted by the government or the Charter (except in its preamble). That is the point we must make. The Government certainly must not decide who will be allowed to defend themselves because "wheras Canada is founded upon principles that recognize the supremacy of God and the rule of law".
Jefferson's "Declaration of Independence" spelled this out pretty good. Our right to life is above these mere mortals (elected and appointed officials). We can prove our right to bear arms originated in the English Bill of Rights of 1689, but Section I will still allow the judges to consider if the right is "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". Hog wash!
What is reasonable anyway? What is reasonable to one may be unreasonable to another. Whatever the judges feel is "reasonable" is good enough for everyone in Canada, eh? What is justified? What mere mortal(s) makes those decisions for us? The judges may even feel a total gun ban is "reasonable" and "justified". We must not allow them to decide on the basis of Section I. Our right to self defense and right to arms for defense are reasonable, to us. These rights are unalienable rights and not subject to anyone's reason, justification or prescribed laws.
Another point is that the Canada's police owe no duty to protect individual Canadian citizens from criminal attack. Blocking: "licensing" a person from getting defense tools is to cripple the endangered citizen's ability to protect himself or herself. "There can be no absolute immunity from risk or danger in this world, and no one can be expected to provide such immunity. Put another way--------it can reasonably be suggested that the police are guardians, not guarantors of public wellbeing." (B.M. v. British Columbia (Attorney General, 2004 BCCA 402)
However, in the real Canada, the police and politicians are telling us that we must not defend ourselves and that they will care for us, when they can't. They even pass laws forcing us to surrender our God given or natural or unalienable right of self defense to their "care".
Trampling individual's rights
By JOSEPH QUESNEL
Canadians should re-evaluate whether or not we as a society want to continue to allow the courts to erode our individual rights through Section 1 of the Charter of Rights and Freedoms.
I suspect more Canadians are aware of the "notwithstanding clause" in our Charter, but many are in the dark about how another part of the Charter also erodes freedom.
This has become clear with a recent Supreme Court judgment upholding strict regulations of tobacco advertising. In the case, the judges unanimously decided that the government's objectives in imposing their health vision on society was more important than the right of companies to make a living through promoting their products in a manner they deem fit. Using Section 1, they ruled the regulations were a reasonable limit.
While I don't smoke and dislike the habit, I believe the state has no business deciding how legal products are promoted to consenting adults.
Knowledge of the health effects of smoking is widespread enough that we don't need more intrusive government regulations to make the point.
Advertising directed at minors is a different issue, but this decision upheld a draconian federal ban on tobacco advertising on television and prevents tobacco companies from advertising their cigarette brand names at sponsored events.
It is debatable whether advertising regulations are making the difference in our falling rate of smoking.
Section 1 of the Charter allows courts to limit our fundamental freedoms if the limits involved can be "demonstrably justified in a free and democratic society."
While I respect the integrity of our courts, one could drive a truck through that loophole of subjectivity.
While in university, I studied the famous Oakes test that judges use to determine if a limit on a right is "demonstrably justified."
It makes me uneasy now as much as it did then to know judges were deciding the future of fundamental freedoms through a three-prong test.
Like it or not, defining whether a limit on a freedom is justified will inevitably come down to the subjective values of judges.
It seems the courts are increasingly giving too much deference to state objectives. The courts have used Section 1 in upholding laws targeting individuals and groups holding unpopular views. So-called hate speech laws have been used in Canada to justify the criminalization of opinion holders. Traditionalists fear such laws could easily be turned on them over their opposition to same-sex marriage.
I hold the old-fashioned belief that controversial opinions need to be debated openly.
The predictable response will likely be that "rights are not absolute," which is true, but Section 1 has allowed judges to subjectively tip the balance away from a robust protection of individual rights to one where rights are increasingly limited in favour of government.
I want a limit on rights to be the absolutely last resort of a judge, not one of the first. The United States has no "reasonable limits" clause in their strongly worded Bill of Rights, ensuring them more protection. Perhaps we need to ask our government leaders why we need one.
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