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"Réforme des institutions démocratiques : un projet en trois axes" by Jacques P. Dupuis At the Roundtable on the Reform of Democratic Institutions organized by the IRPP on September 10 in Montreal, the Quebec minister responsible for this dossier, Jacques Dupuis, outlined the whys and wherefores of his government’s plans in this area. Here is an excerpt of his speech. Thanks to the magic of the Internet, you can also hear the audio version of the entire speech on the IRPP’s Web site . "From Equality Rights to Same-Sex Marriage - Parliament and the Courts in the Age of the Charter" by Janet L. Hiebert The question of same-sex unions or marriage arising from the equality rights provisions of the Canadian Charter of Rights and Freedoms is the most controversial issue yet to arise under the Charter. It also raises important questions about the roles of, and relationship between, Parliament and the courts in the era of the Charter. And is the use of the notwithstanding clause a legitimate means of resolving disagreements between the legislative and judicial branches? Janet Hiebert of Queen’s University, author of Charter Conflicts: What Is Parliament’s Role, offers an incisive look into these timely issues, as well as an overview of the federal reference now before the Supreme Court. "What the Framers of the Charter Intended" by Graham Fraser What did the framers of the Charter of Rights intend as to the roles of Parliament and the courts at the time of its adoption in 1981-82? Graham Fraser, who covered that momentous debate, looks back and notes that some of the principal actors are still on the scene more than 20 years later, playing a leading role in the debate on same-sex marriage. Jean Chrétien, then justice minister in the Trudeau government, was asked at the time by NDP member Svend Robinson whether the Charter would exclude discrimination on the grounds of sexual orientation. “That will be for the court to decide,” Chrétien replied at the time. “It will be open-ended.” Roy McMurtry, then Ontario attorney-general and a key player in the Charter negotiations, later became chief justice of Ontario and was an author of the Ontario appeal court’s 2003 ruling in favour of same-sex marriage. Fraser concludes the present outcomes are no surprise to the fathers of the Charter. "Same-Sex Marriage and the Notwithstanding Clause" by Christopher P. Manfredi Prime Minister Chrétien seized on the wording of an opposition resolution that Parliament take “all necessary steps” to protect the heterosexual nature of marriage, arguing that it meant invoking the notwithstanding clause of the Charter of Rights. This successful transformation of a motion on the definition of marriage into a de facto referendum on the notwithstanding clause is indicative of a growing convention that it should never be used, writes Christopher Manfredi, a leading authority on Parliament and the courts in the Charter era. Opposition to any use of the notwithstanding clause is partly an accident of history arising from Robert Bourassa’s 1988 override of a Supreme Court decision allowing signs in languages other than French in Quebec. And in conceptual terms, the effectiveness of the notwithstanding clause is only as great as the willingness of the legislatures to use it. Far from representing an attack on the Charter, as the PM suggested, the notwithstanding clause is an integral part of the Charter. Indeed, the Charter would not exist without it. "Can Judicial Supremacy be Stopped?" by F.L. (Ted) Morton The Charter of Rights and Freedoms has created a judicial juggernaut that has increasingly eclipsed the powers of the legislative branch of government in Canada. The primary check on judicial power is the legislative override of the Charter, the section 33 notwithstanding clause, which was included for that very purpose. Rather than being perceived as an integral part of the Charter, the notwithstanding clause, even the prospect of its use, has recently been widely construed as an attack on the Charter. This is the main reason invoked by Prime Minister Chrétien for voting against the Canadian Alliance motion calling on Parliament to use “all necessary steps” to affirm the heterosexual nature of marriage. In more than 20 years since the adoption of the Charter in 1982, the notwithstanding clause has never been used at the federal level. It has only been used 16 times at the provincial and territorial levels, 13 of them in Quebec. Quebec originally opposed the Charter’s adoption, but ironically its use of the notwithstanding clause on the explosive language issue undermined its legitimacy in English-speaking Canada. The University of Calgary’s Ted Morton looks at the notwithstanding clause with a view to rehabilitating it rather than allowing it to fall into disuse, as the power of disallowance did in the British North America Act. "Equality Rights Versus the Right to Marriage - Toward the Path of Canadian Compromise" by Julius Grey The debate about gay marriage engages three points of view: those who advocate gay access to marriage in the name of equality rights; those who affirm equality rights but uphold marriage as a heterosexual institution; and those who continue to regard homosexuality as deviant and would like to see it marginalized. The social conservatives are themselves at the margins of the debate in Canada, according to prominent civil libertarian Julius Grey. Between the positions of advocates of gay rights and the defenders of traditional marriage, he suggests the possibility of a Canadian compromise that meets the requirement of both the Constitution and the traditional concept of marriage. Civil union might fulfill the acquired rights of homosexuals as easily as marriage, and the decision to use the word “marriage” or not depends on factors other than the Charter. "Judging the Judiciary: The Rule of Law in the Age of the Charter" by Simon V. Potter While there is no doubt that the role of the courts as constitutional interpreter is even more important in the era of the Charter of Rights, there can equally be no doubt that the judicial branch is doing its job as an independent arbiter of the limits of government power vis-à-vis the entrenched rights of individuals. Canada, conceived as a representative democracy under the British North America Act of 1867, has been transformed to a constitutional democracy since the proclamation of the Charter in 1982. In this regard, the courts are performing their appropriate role, not exceeding it, argues the former president of the Canadian Bar Association. In interpreting the Charter, the courts are imposing a discipline on the legislative power of the majority and protecting those whose minority rights might be ignored if Parliament still reigned supreme in Canada. Simon Potter poses several pertinent questions about the role of the courts and Parliament in the age of the Charter. "A Country Evenly Divided on Gay Marriage" by Andrew Parkin What is the mood of Canada about same-sex marriage and the larger question of the respective role of Parliament and the courts in the age of the Charter of Rights? Pollster Andrew Parkin of the Centre for Research and Information on Canada (CRIC) finds the country evenly divided on the question of same-sex marriage, with older demographic groups and church goers tending to be more opposed, while younger Canadians and non-church goers are more inclined to be in favour. But there is no such ambivalence in Canadians’ strong support for the Charter, and no groundswell in favour of Parliament using the notwithstanding clause of the Charter to override the courts in the interpretation of it. Indeed, there is a strong view that Parliament should defer to the courts as the final arbiters of the Charter. However, sentiment may well be shifting somewhat in light of the current debate. "Why Have a Constitution at All?" by Joseph Heath [summary not available] "Reposer la question du Québec" by Jocelyn Létourneau Is it still relevant to look at the issue of Quebec through the cardinal prism of the national question? Jocelyn Létourneau thinks not. He even believes that this way of regarding the Quebec condition prevents us from taking stock of the profound mutations that are shaping the Quebec collectivity. Among these transformations he enumerates the redefinition of Montreal’s role in the political economy of Canada; the growing distance, on many levels, between Greater Montreal and the “Rest of Quebec”; and the appearance of political differences among Quebecers that originate in increasingly varied social and spatial realities. Inhabitants of a small community that is functioning in a world that is ever more interdependent and in the shadow of the American megalith, Quebecers seem to have opted for a middle position — between integration and peripheralization — that expresses not national alienation but refers rather to a political lucidity that has stood the test of time. "La souveraineté à l'heure de la mondialisation" by Michel Venne In spite of globalization, or perhaps because of it, national sovereignty is unavoidable as an organizing principle for societies, and this goes for small as well as large countries, maintains Michel Venne. It is necessary to be able to confront the numerous problems that arise at the international level and to carry out the arbitration necessary at the domestic level, in order to meet precisely those globalization challenges. Co-operation, interdependence, the opening up of borders, as well as the exercise of democracy all demand the preservation of sovereignty. Clearly and honestly articulated around citizenship, and not just the preservation of a national culture, the project to make Quebec a sovereign country is a movement that is absolutely in step with the times and is still in the realm of the possible — even the desirable. Que veut maintenant le Québec ?" by Marcel Côté Quebec in 2003 is quite different from the Quebec of 1968, when René Lévesque founded the Parti Québécois. Since then, Franco-Quebecers have made remarkable gains in the economic sphere, and the vision of the State as the principal agent of economic development has lost much of its lustre. These two developments explain the decline of the indépendantiste option on the Quebec political landscape, but also that of the Canadian dream in Quebec, says Marcel Côté. For a large majority of Quebecers, Canadian nationality is hardly more than a very useful supranational passport, but their identity is elsewhere. Quebecers are today, by choice, more federalist than ever, but this does not imply the disappearance of their specificity, which is in any case reinforced by its preferential relationship with France. The next few years are thus emerging as a sort of “quiet federalism,” perhaps with more haggling but likely not to be too perturbed by a few skirmishes around the fiscal pie. "Immigration and Diversity: Some Policy Issues Confronting the Quebec School System" by Marie McAndrew The education system is one of the main instruments with which a society helps immigrants integrate into their new communities. Marie McAndrew recounts how the Quebec school system has lived up to this challenge over the last 40 years. From specific measures such as language-training and preparatory class that placed most of the burden of integration on children and did not involve the general functioning of the schools, Quebec’s policy has evolved toward incorporating intercultural teaching into the school curricula as a whole. Thus it now calls on the broader society to also adjust to the reality of immigration. But there are sometimes important gaps, she warns, between the official policy and actual implementation in the classroom. Addressing issues of religious diversity (as opposed to cultural diversity) has also proved to be difficult to negotiate. Moving from heritage-language teaching to third-language teaching to meet the requirements of the globalized world into which today’s children will graduate, and shifting from intercultural education toward citizenship education, she concludes, are challenges that Quebec schools have now to address. "A Tale of Two Education Systems: Policy Lessons from Sweden" by Helen Raham Independent charter schools have raised much interest in many countries over the last decade. In Canada, Alberta has experimented with this option but overall the degree of educational choice in this country remains slim due to provincial funding frameworks and local school boards’ policies. Based on an examination of Sweden’s experience with mixed-management models, where over 800 independent public schools enrolling about 5 percent of the school population have been established since 1992, Helen Raham argues that a more decentralized school management system and an increased range of choice for parents could help improve equity, school governance, labour relations and community involvement, as well as academic results. "Le Traité de Nice et l'élargissement de l'Union européenne : la clef irlandaise" by Linda Cardinal As another step in the European integration process, the Irish adopted the Treaty of Nice. Linda Cardinal presents a round up of that referendum and of the previous failed referendum in 2001 in October 2002. That rejection by the Irish people, says the author, was a serious warning to Irish and European leaders: the population must not be taken for granted in the implementation of important political reforms. The second campaign thus marked the beginning of a concerted process of reflection on democratic participation. Moreover, European integration has demonstrated well that the joint undertaking of sovereignty can give smaller countries a larger decision-making role. The adoption of the qualified majority and proposed distribution of the votes on the Council of the European Union is a complex system of checks and balances whose objective is to maintain smaller nations’ true capacity to influence, while not penalizing the larger ones. The challenge now for Ireland and the other countries, she concludes, is to ensure that citizens do not lose sight of the importance of the issues involved in the debate on the European constitution, by putting to good use the lessons of the second Irish referendum about the importance of public debate and citizens’ participation. "Judicial Leaps of Logic" by Rory Leishman [summary not available] Book Excerpt: While Canada Slept: How We Lost Our Place in the World by Andrew Cohen In this excerpt from While Canada Slept: How We Lost Our Place in the World, awardwinning writer Andrew Cohen, Professor of Journalism and International Affairs at Carleton University, laments Canada’s shrinking role on the world stage. Once known as a pre-eminent middle power, synonymous with peacekeeping, and an important interlocutor between America and its other allies, Canada has lost much of its standing in the world and its influence in the United States. With inadequate defence and development dollars and an uncertain foreign policy in the face of unilateralism by the American hyperpower, Canada “has lost its way in the world,” asserts Cohen, who says “it is time to seize the day.” It is, he concludes, a matter of money. And will. Book Review: John J. Noble reviews While Canada Slept: How We Lost Our Place in the World [summary not available] "A Few Kind Words for Paralysis in Ottawa" by William Watson [summary not available] |
