> * But I hope you realize that it doesn't show anything. A federal or even provincial government can absolutely pass any law, with a simple majority, that doesn't respect the charter simply by invoking the non withstanding clause.*
And the use of the withstanding clause has to be re-up every five years, as that is the maximum time before a new election is held so that The People™ can decide if they want to continue with it:
> (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
> Can you show me a single piece of legislation that used that clause and that was still overturned?
The point of the clause was so that The People™, through their duly elected representatives, would have the final say in matters of government and not judges (who are potentially answerable to no one). Whether it should be judges that have the final say (like in the US) or legislators (like in the UK) is up for debate: in Canada it was decided to split the difference.
> But the point remains that the constitution is absolutely horrible for minorities.
Tell that to gay people who got to get married because of it—even though there is nothing about the topic in the Charter. This was before it was probably fully accepted socially, and I doubt any politician wanted to make the move.
See also perhaps abortion under the Morgentaler decision in the 1980s, when society was much more conservative.
You can probably say the same thing about euthanasia (which the SCC disallowed in 1993 (Rodriguez, [1993] 3 SCR 519) and then insisted upon more recently, which gave us the euphemistically named MAID).
Those are unrelated to the charter, and all of those have been allowed without using the non withstanding clause. As you said yourself, nothing in the charter says that gay people can't marry.
I genuinely can't think of a single time where the clause was used to add rights instead of removing them so I'm not sure what your argument is.
Almost everything you mentioned isn't really related to the constitution. In fact, any province could use the non withstanding clause tomorrow to make gay marriage illegal again, even if the SCC allowed it. So if anything,that shows how useless the charter is.
If your point is that the constitution allows for flexibility then sure yes, but that's more due to the "living constitution" framework that the SCC uses than the conditions itself.
All three cases were decided on Charter grounds. Morgentaler tried challenging abortion pre-Charter and lost.
> Almost everything you mentioned isn't really related to the constitution. In fact, any province could use the non withstanding clause tomorrow to make gay marriage illegal again, even if the SCC allowed it. So if anything,that shows how useless the charter is.
The Canadian Constitution and the rights there-in is not absolutist:
> 1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
