Saturday, June 19, 2004

Section 33 is NOT "Anti-Charter"

It was interesting to watch the Canadian English language leadership debate on June 15th. The four party leaders squared off in what was obviously a tightly scripted "debate" of issues deemed by someone to be important to this election. They all read their carefully prepared notes and tried to fit within the tight time-frames to make opening and closing statements and some key points in their set-pieces - - debates between each person and one of the other parties. It had all the spontaneity of a well-choreographed ballet but little of the grace.

The spectre of the Bloc Quebécois leader squaring off against the NDP leader was amusing to say the least since they had as much in common, in terms of political interest, as a hot air balloonist does in discussing navigation with the captain of a submarine. In fact the presence of the Bloc was strange in itself and one only wonders whether, one day, we shall see leaders of other regional parties in dialogue with federalists?

Before I get to the substantial points below, it is worth noting on of the more amusing things said all evening. It came in the form of a rather hysterical blooper from the mouth of NDP leader Jack Layton. Trying desperately to get in a feminist lick (so to speak) he ended one exchange with Paul Martin by saying "we need more women in government because they could clean up".

None of the coverage picked up on this extraordinary statement and I imagine several hundred of the NDP die-hards who heard this must have just about croaked (as we used to say).

Also amusing was Paul Martin's obviously scripted attack on the NDP leader (who strikingly resembles, incidentally, ice-hockey pundit Don Cherry) later on when he said "did your handlers tell you to talk all the time". Layton, like Martin himself, appeared to have a serious case of what the former Archbishop of Canterbury, the late Michael Ramsay once referred to as "the fatal facility of continuous utterance".

Layton responded well to this obvious piece of strategic rudeness. Truth is that, of the four of them, it was Paul Martin who talked like a person on pep pills trying to win the Guinness Book of World Records non-stop talking award. He talked on and over everyone and the result was, on occasion, a cacophony not unlike feeding time in a parrot cage.

Whatever anyone felt about the content of the debate, the award for pugnacity goes to Gilles Duceppe of the Bloc Quebécois who continually attacked Mr. Martin for not answering the questions he was posing him in relation to adscam and corruption within the Liberal Party. Indeed, Mr. Martin won, hands down, the "blob of mercury" award for his ability to stay one micron ahead of the fingers that tried to tack him down.

Class act was Stephen Harper who spoke more or less when spoken to, listened to his interlocutors and generally seemed both more knowledgeable and capable as the comments from several of the viewers following the CBC event showed. He had more manners than the others but one wonders whether manners matter anymore in politics.

The tactics of "scary" perfected last election by Warren Kinsella for the Chretien Liberals were dusted off again by the Martin Liberals as they attempted to suggest that a "women's right to choose" and "gay rights" would not be secure under a Conservative government. Harper said continually that he would not be introducing legislation to limit choice (that great euphemism for the killing of small, geographically impoverished humans) and limited his moral concerns to "child pornography" and said that it was in reference to that and "maintaining the traditional definition of marriage" that he would use the notwithstanding clause of the Charter.

Here was the moment at which a serious blunder occurred in Paul Martin's logic. He purported to be a strong believer in the Charter and tried to attack Stephen Harper about his willingness to use Section 33 of the Charter and suggested such use was "anti-Charter". There are two reasons why this criticism is nonsense. First, Martin himself has said that he would use Section 33 of the Charter to protect the rights of religious communities to refuse to marry same-sex couples if the law goes that direction. That is an error of hypocrisy.

Second, the use of Section 33 is not in any way "anti-Charter" as that Section is a key part OF the Charter. It is WITHIN the Charter so its use can hardly be said to be "anti-Charter". Since Martin would also use Section 33 the best response Stephen Harper could have used, but didn't, is that Section 33, far from being the enemy of the Charter is IN the Charter - - and is a key Section of it.

So the difference is not one of "pro-Charter" versus a supposedly "anti-Charter" perspective but, rather, when the Section should be used not whether it should be used.

Section 33 is, in fact, the enemy of an over-reaching judiciary not of democracy and its presence within the Charter was the reason we have the Charter at all. I am so sick of the kind of silly rhetoric Martin employed here in his attempt to nail Harper. Does he take ordinary Canadians to be morons?

Human rights are precariously balanced within democracies and as much damage to them can be done by judges that over-reach the subtle balances between developing rights recognition and culture as can be done by majorities that refuse to acknowledge rights at all.

Remember that with a Section 33 declaration a government has to defend its reasoning at the polls before long and could, in fact, be un-elected if the reasoning of the people has changed on a key point to culture. And the judges and the notoriously liberal media will give the government a public pasting to ensure that the liberal progressive positions will be publicly driven - - of that we can all be sure. It is then a question of time, debate and patience.

This short term "solution" of getting a big judicial win is amazingly short-sighted as it will, as the old language used to have it "bring the administration of justice into disrepute".

One more thing: weren't the Liberals the very people who used a majoritarianism (majority vote) to deny Catholics and other Christians (Pentecostals etc.) the right to continued constitutional educational protection in both Newfoundland and Quebec? You bet they were! It would have been better for them to have declared their domination of denominational education rights openly and in a way which could make them accountable. So much for accurate analysis of the Charter from Paul Martin.

The journalists who were given the task of firing questions at the debaters did a fairly good job of things and we, as viewers, were not told whether the candidates had the questions ahead of time. There seemed to be no surprises.

Following the debate, however, things took a distinctly biased twist. The so-called "reality check" woman on CBC television who followed up the debate gave a blatantly biased spin to the suggestion that Paul Martin might himself use Section 33 of the Charter. She suggested that Martin would not have to use the Section 33 provision to protect the rights of religious communities not to marry same-sex couples since "religious rights are already protected under the Charter."

There is one word to say here. Wrong. There is every reason to suspect that, following from recent decisions, a court could determine that various aspects of religious autonomy have to give way to the furtherance of the equality of gays and lesbians. There are many ways (and we have already seen some such as the attack on Catholic Schools to have their distinctive teaching about same-sex behaviour in the Durham School Board "high-school prom" case) in which religion can be attacked following a decision that marriage should include gays and lesbian couples.

So, overall, it was another example of scripted debate in which each side tried to score off the other by talking over them, obfuscating, avoiding the questions and posturing. Perhaps only Duceppe and Harper seemed to have genuine capacity for open leadership though it is impossible to tell from one two-hour debate of this sort. Time will tell and the respect that Duceppe and Harper appeared to have for each other gave this reviewer, at any rate, a glimpse into how things might shape up in the future.

Iain Benson©