Will Conservatives use Notwithstanding Clause?

[Timetrvlr]

..........to take away a woman's right to choose?

Paul Martin thinks so and I believe he is correct on this. This is what he said last Thursday night:

There are a number of Conservatives, quite a large number of Conservative members of Parliament, who have said that they would take away a woman's right to choose, and, in fact, some of them are among the leaders, Stockwell Day, people who would be in cabinet. The president of the Conservative Party has said that he has a roadmap to achieve that.

I think this is a very important issue in this election and I don't think it is a smear of Conservatives because I know that the CPC leadership is driven by the fanatical, fundamentalist goals of the far right. Frankly, they scare the hell out of me! In the past week, many pundits have been predicting a majority CPC government. How do you feel about it?

I don't plan to vote Liberal, I plan to vote for the other liberal party, the NDP.

 

[FiveParadox]

Possibilities Under a Conservative Majority

Were the Conservative Party of Canada to receive a majority of the seats in the House of Commons, I would not be surprised to see legislation tabled in respect of a woman's right to choose.

Perhaps not directly through a Conservative Prime Minister, but I would not be entirely surprised to see a related piece of Private Member's Business introduced in the House by a "backbencher" and supported by a majority of the party. It could be quite an interesting session.

 

[KanBob]

Yes, of course it is very, very important for Canada to maintain the unfettered right of women to have unrestricted abortion.

Sure, you call it a woman's right to choose, but why not just call it what it is?

Canada, of course, being so progressive is the only nation in the world that has no controls or restrictions on abortion -- sorry! a woman's right to choose.

Those neo-cons in Sweden, and France and Germany and all those other neo-con parliaments in Europe have restrictions on abortions -- sorry, a woman's right to choose, but we in Canada are not so scary and neo-con as that!

One thing though, the Notwithstanding Clause is not in the least an issue on abortion -- sorry, a woman's right to choose.

There just happens to be no law on the subject in Canada. The Supreme Court invalidated the last law back in about 1988. They never said parliament couldn't pass a law of some sort on the subject, as it saw fit.

So why do you think the Notwithstanding Clause would be needed?

Or is this just Chicken Little -- Bucky Martin and his fear-mongering at work again? Is that all he has to offer? Fear mongering? Maybe he needs a day job.

 

[FiveParadox]

Supreme Court Trends

If the trend of the Supreme Court of Canada to date has been any indication, I would predict (while I am by no means an expert on the topic) that the Court would decidedly rule in favour of those who would argue on the pro-choice side.

If that would be so, then a Conservative Government would have no choice but to invoke the notwithstanding clause — which in and of itself is a clear statement that a piece of legislation be enacted notwithstanding Charter rights. The use of this clause would be an extremely clear statement of policy, in my opinon.

 

[the caracal kid]

I concur Five,

The history of the SCOC would suggest a ruling in favour of a woman's right to choose. A decision opposing such choice is to remove equality of the sexes from the laws of the land.

Now as for Harper, I suspect his "free vote" game is one to allow him to remain "clean" to the populace while having the right-wing agenda he and other cons support be put forth by "expendable" MPs. Harper is the chicken in this game who is fearful of reaction to his own ideological agenda.

 

[TenPenny]

I think Martin is stoking the fires of hysteria, but what the hell. If it keeps a useless do-nothing in power, that's all the better.

Harper would need a clear majority to do this, and he would have to force all his MPs to go along with it. Do you think they would on an issue of this magnitude?

 

[KanBob]

Re: Supreme Court Trends

If the trend of the Supreme Court of Canada to date has been any indication, I would predict (while I am by no means an expert on the topic) that the Court would decidedly rule in favour of those who would argue on the pro-choice side.

If that would be so, then a Conservative Government would have no choice but to invoke the notwithstanding clause — which in and of itself is a clear statement that a piece of legislation be enacted notwithstanding Charter rights. The use of this clause would be an extremely clear statement of policy, in my opinon.

The notwithstanding clause wouldn't apply at all. A new, that no party is planning on introducing, may, or may not (since no party is planning on such a law so this is just plain speculation on the part of us who have no power in these matters) place some limits on abortion -- sorry, a woman's right to choose.

That is, limits that are typical in neo-con countries:

Like Norway:
Norwegian women have been allowed free abortion upon request during the first 12 weeks of pregnancy.58 After 12 weeks, abortion must be authorized by a board of 2 doctors.

How Barbaric! Limits after 12 weeks! Have they not heard of Canada?

Like Sweden:
Since 1975, women have been able to obtain an abortion free upon request up to the end of the 18th week of pregnancy. After the 18th week of pregnancy, the approval of the National Board of Health and Welfare is necessary

How Barbaric! Limits after 18 weeks! Have they not heard of Canada?

Like France:
In 1975, French law made abortion available to women until the tenth week of pregnancy on condition that they undergo counselling on alternatives and observe a one-week waiting period.43 After the tenth week, two physicians must certify that the woman’s health is endangered or the fetus is handicapped.

How Barbaric! Those neo-con Frenchies! Limits after 10 weeks! Have they not heard of Canada?

Have none of these countries heard of the right of a woman to choose? Are they so neo-con in their thinking that they would deny such a valuable right? Is Canada the only shining light in the world on this subject?

It is important, one cannot stress enough, that a progressive society maintains the ability to kill off its (potential at least) future generations.

 

[FiveParadox]

Notwithstanding Clause

Perhaps you do not understand how the notwithstanding clause is used.

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

The clause is used to make a piece of legislation immune to the rights and freedoms sections of the Charter, therefore giving the legislative measures an "amnesty," of sorts, against the rulings of the Supreme Court of Canada.

So, yes, if the Courts declared that a piece of legislation were to infringe the rights of a woman (assuming, of course, that they would make such a ruling, which I would assert since Courts have done so before), then the only way to enact such legislation would be to use the notwithstanding clause.

:!: Edit Resolved a formatting issue.

 

[KanBob]

Re: Notwithstanding Clause

The clause is used to make a piece of legislation immune to the rights and freedoms sections of the Charter, therefore giving the legislative measures an "amnesty," of sorts, against the rulings of the Supreme Court of Canada.

So, yes, if the Courts declared that a piece of legislation were to infringe the rights of a woman (assuming, of course, that they would make such a ruling, which I would assert since Courts have done so before), then the only way to enact such legislation would be to use the notwithstanding clause.

:!: Edit Resolved a formatting issue.

I'm no constitutional scholar. However:

From the National Post, Jan 14, 2006, discussing this issue:

There is no link between abortion and notwithstanding. Parliament would not need to invoke the clause to legislate on abortion, since nothing in the Charter prevents it. The 1988 Morgentaler decision did not say that any abortion law would violate the Charter: only that that one did.

And as a further note:

On the other hand, the notwithstanding clause does not apply to a number of Charter rights: aboriginal rights, for example, or the equality of the sexes. Not to mention the rest of the Constitution

 

[nomore]

Kanbob, Excellent posts.

I think you pointed out very clearly the position on the issue. It is not about banning abortion, it is about having regulations, just like any other health service.

Oh and by the way, the farther left this country goes, it becomes only a matter of time before men start demanding "their right to choose" They had a part in making the baby too. :lol:

 

[the caracal kid]

men can choose when men have the option of carrying the baby to term and not before.

 

[nomore]

Re: RE: Will Conservatives use Notwithstanding Clause?

men can choose when men have the option of carrying the baby to term and not before.

I know, it was a joke.

edit: Although, I have seen crazier cases come before the courts.