[Canada] Canadian Politics Redux

[Grey Fox]

Obviously they are religious symbols.  What makes them oppressive?

Sentence B -> Sentence A.

[Malthus]

It isn't exactly a secret that the primary issue isn't kipahs or crosses ... 

The law covers all religious symbols for people in authority.
I don't disagree with the part about no religious symbols at all, but I disagree with the extended version of "people in authority".

I also agree the clause shouldn't be used casually, but I'd say it is necessary when the Federal government insists on playing cozy with religious radicals.

Religion used to be a huge part of our government, shaping laws and policies, controlling education and healthcare.

I am unwilling to see religion using the back door to implement what we kicked out of our government in the 1960s.  I am unwilling to see private religious schools teaching girls to sew because they don't need maths, or teach the Torah all day long to boys because they don't need anything else.

Enforcing a symbolic legal humiliation on members of religious minority will not have any impact on this.

Well, a negative one, since there is no way of rallying members of minorities to 'the cause' of wearing some symbol or other more effective than officially outlawing some of them from doing so.

[Valmy]

Obviously they are religious symbols.  What makes them oppressive?

Sentence B -> Sentence A.

Well I guess that approach has the advantage of not having any confusing nuances

[crazy canuck]

That seems more what s. 33 was intended for - not to flaunt Charter values, but to fix what are clearly errors by the courts.

"Errors" are what appellate courts are supposed to correct.

Political judgments are what politicians are supposed to make.  The Charter expressly allows the legislative branch to proactively remove legislation from consideration of the Courts regarding certain sections of the Charter.

[Malthus]

I am not sure why you choose to use such inflammatory language.  But it certainly demonstrates your particular perspective on this issue.

Inflammatory language? 

I'm sure everyone is clutching their pearls in horror at the use of the terrible word "pique".

[Grey Fox]

As in, spade or something else?

[Malthus]

Hogg is clearly taking about the first arm of the Oakes test when he uses the short hand of a "breach of the Charter".  Hogg's text fully acknowledges that the notwithstanding clause is part of the Charter, and as a constitutional historian and scholar wrote extensively about the historic trade off which was required to include the clause in order for the Charter become part of the Constitution.

But no-one here has claimed that the clause *isn't* part of the Charter! 

It is not usual for you to be so disingenuous.


Claiming the clause breaches the Charter, as you did, is nonsensical if the clause is part of the Charter.

So why are you

LaForest uses exactly the same phrase I did - and you snarked at me for doing so ... 

But you are ignoring the shorthand meaning being used.

It's not "recent" at all. Read the link I posted.

The references you point to make a different point, which is that political pressure was expected to dissuade the use on a routine basis.  Not that it was wrong to use if there was sufficient political support.  If your version of history was correct, there would have been no reason to have the Notwithstanding clause because everyone agreed using it would be wrong.

You castigate me for using exactly the same phrase as LaForest ... yet somehow he's using it correctly and I'm not?

I'm making exactly the same point as the commentary - political pressure was expected to make its use rare because using it is an acknowledgement to the public that the Charter is being breached, and the public won't approve.

Read the rest of the quotes I cited as to te expected use of the clause.

Edit: by "breach of the Charter", everyone means exactly the same thing: breach of the rights and freedoms enshrined in the Charter.

Edit: "my version of history" is the one supported by the Library of Parliament Research Publication "The Notwithstanding Clause of the Charter". 

[Malthus]

That seems more what s. 33 was intended for - not to flaunt Charter values, but to fix what are clearly errors by the courts.

"Errors" are what appellate courts are supposed to correct.

Political judgments are what politicians are supposed to make.  The Charter expressly allows the legislative branch to proactively remove legislation from consideration of the Courts regarding certain sections of the Charter.

It was intended mostly as a technical "fix" in cases where important legislation might otherwise breach in some manner certain provisions of the Charter. It was originally supposed to be "rare" and used in "non-controversial" cases, to avoid having to obtain constitutional amendments.

Again, from the actual sources:

What the Premiers and Prime Minister agreed to is a safety valve which is unlikely ever to be used except in non-controversial circumstances by Parliament or legislatures to override certain sections of the Charter. The purpose of an override clause is to provide the flexibility that is required to ensure that legislatures rather than judges have the final say on important matters of public policy. ... It is important to remember that the concept of an override clause is not new in Canada. Experience has demonstrated that such a clause is rarely used and when used it is usually not controversial. ... It is because of the history of the use of the override clause and because of the need for a safety valve to correct absurd situations without going through the difficulty of obtaining constitutional amendments that three leading civil libertarians have welcomed its inclusion in the Charter of Rights and Freedoms.

- Jean Chrétien, then minister of justice

What was thought to keep it from being over-used, is that if it was used in "controversial" cases, the public would be outraged as such use would attract much criticism. Why? Because it would be seen, when used in that way, as a direct attack on rights and freedoms - a breach of the Charter. 

In criticising its use in a "controversial" case, we are doing exactly what the framers intended.

[crazy canuck]

Wait, you are relying on Chretien for your source.  Well that explains a lot.

The history of this clause is that the Federal Liberals were wedded to the idea of a Charter which was very similar to the US constitution.  It was Trudeau's vision as part of the repatriation deal.  But the Provinces objected and that is how we ended up with both section 1 and section 33.  The Federal Liberals were downplaying the significance of those sections because the did not want to admit that in fact parliamentary supremacy had been preserved through the efforts of the provinces.  That difference of opinion between the Feds and the provinces explains to some extent why it is only the provinces who have invoked section 33.

[Malthus]

Wait, you are relying on Chretien for your source.  Well that explains a lot.

The history of this clause is that the Federal Liberals were wedded to the idea of a Charter which was very similar to the US constitution.  It was Trudeau's vision as part of the repatriation deal.  But the Provinces objected and that is how we ended up with both section 1 and section 33.  The Federal Liberals were downplaying the significance of those sections because the did not want to admit that in fact parliamentary supremacy had been preserved through the efforts of the provinces.  That difference of opinion between the Feds and the provinces explains to some extent why it is only the provinces who have invoked section 33.

Well, he was Justice Minister at the time. So his views on what the clause was supposed to mean at the time have weight.

However, it isn't as if the provinces were saying anything different.

The fact is that the clause does provide a form of balancing mechanism between the legislators and the courts in the unlikely event of a decision of the courts that is clearly contrary to the public interest. On the other hand, political accountability is the best safeguard against any improper use of the "override clause" by any parliament in the future.

- Roy McMurtry, who participated in the First Ministers' Conference as Attorney General of Ontario

Once again, the notion at the time was widely shared: that the use of the clause would be "rare", used only in clear cases where the public interest required it, and would be restrained by "political accountability" - meaning the damaging fallout from "improper use".

My source is not Chretien alone, but all of the comments, as collected in the Parliamentary research paper, the authors of which conclude as follows in the section entitled "Framers' Intentions":

All the above comments on the expected use of section 33 have a number of elements in common. Section 33 was seen as a safety valve to be used only on rare occasions, and it was expected that it would be used in relation to "non-controversial issues." It was anticipated that resort to section 33 would be to preserve basic social and political institutions and enable legislatures to overcome unacceptable judicial determinations where there was popular support for doing so.

Experience so far has shown at least three situations where section 33 was used in a way not foreseen by those participating in the 1981 First Ministers' Conference or by commentators: the omnibus, routine invocation of section 33 by the Quebec National Assembly between 1982 and 1985; the preventive use of section 33 by Saskatchewan in relation to back-to-work legislation; and the adoption of Bill 178 by the Quebec National Assembly following the 15 December 1988 Supreme Court of Canada decisions in Ford and in Devine.

Again, these are not "my" conclusions. They are the conclusions found in the official government research study on the clause. Yes, the provinces insisted on the clause - but no-one, including the provinces, thought it would or should be used in a case such as the one it's being used for now - they thought that public opposition to the erosion of rights would prevent that.

[crazy canuck]

I entirely discount what Chretian had to say - he said what he needed to say to get Trudeau's Charter passed into law whether it had any relation to the true state of affairs is another thing altogether.

I put a lot more stock in what the provincial leaders who pushed Trudeau to include section 33 into the Charter.  Hint, Ontario was not one of them so I am also not particularly moved by what someone from that province had to say on the issue

The premiers from Alberta and BC who led the provincial efforts from the Western provinces to include s. 33 assumed it would often be used.  Here is an article about Lougheed's contribution, and also the unintended consequences of the inclusion of section 33.

https://ablawg.ca/2012/09/24/peter-lougheed-and-the-constitution-notwithstanding/

[dps]

Obviously they are religious symbols.  What makes them oppressive?

Sentence B -> Sentence A.

Well I guess that approach has the advantage of not having any confusing nuances

Valmy, what you're dealing with is Newspeak.  Someone displaying symbols of their faith is "oppression", but forbidding people from religious expression is "freedom".

[Grey Fox]

Obviously they are religious symbols.  What makes them oppressive?

Sentence B -> Sentence A.

Well I guess that approach has the advantage of not having any confusing nuances

Valmy, what you're dealing with is Newspeak.  Someone displaying symbols of their faith is "oppression", but forbidding people from religious expression is "freedom".

No, that's not it.

[Malthus]

I entirely discount what Chretian had to say - he said what he needed to say to get Trudeau's Charter passed into law whether it had any relation to the true state of affairs is another thing altogether.

I put a lot more stock in what the provincial leaders who pushed Trudeau to include section 33 into the Charter.  Hint, Ontario was not one of them so I am also not particularly moved by what someone from that province had to say on the issue

The premiers from Alberta and BC who led the provincial efforts from the Western provinces to include s. 33 assumed it would often be used.  Here is an article about Lougheed's contribution, and also the unintended consequences of the inclusion of section 33.

https://ablawg.ca/2012/09/24/peter-lougheed-and-the-constitution-notwithstanding/

I guess you are also 'not particularly moved' by the article you cited yourself! 

Section 33 may not have been used as often as Peter Lougheed and the other Gang of Eight premiers expected when they advocated the inclusion of this provision in the Charter.  And they may not have foreseen that it would underpin the courts' view of their strong role in reviewing legislation for compliance with the Charter to the extent that it has.  Some might argue that, in spite of allegations of judicial activism, the courts have been rather timid in giving Charter rights their full force (particularly redistributive / social and economic rights), so that governments have not found the need to resort to section 33 very often.  Others might say that the deployment of section 33 powers would be politically risky, although if used rarely, such a deployment might also provide an important opportunity for public debate on contentious issues (see Hogg, supra, section 39.8).  Another view is that if governments are not using section 33 to the extent they could, it may be because the Charter is exerting a strong normative force on law making, regardless of the power to opt out of some sections (for an example of this sort of argument see John Whyte, "Sometimes Constitutions are made in the Streets: the Future of the Charter's Notwithstanding Clause" (2007) 16 Constitutional Forum 79).

... which is exactly the thesis here.

The question: what prevents provinces from using the clause routinely?

The answer: the political pain the governments of those provinces will suffer, in being seen to breach the 'normative' position that Charter rights and freedoms are not to be abrogated.

The question: is relying on this normative force an import from the US or a modern development?

The answer: not at all. Plenty of those involved at the time the clause was being negotiated pointed this exact situation out. They relied on this to prevent "abuse".

The conclusion: giving provincial governments grief for invoking the clause is not some un-Canadian imported position taken in ignorance of the Charter's meaning; on the contrary, this is exactly what we, as Canadians interested in the Rule of Law, ought to be doing. If the use of the clause is justified, then let it be justified on its merits.   

[crazy canuck]

Oh for fuck sakes Malthus, read the first sentence of the paragraph you quoted.

Section 33 may not have been used as often as Peter Lougheed and the other Gang of Eight premiers expected when they advocated the inclusion of this provision in the Charter....

Its like you have a Ontario centric hood on that prevents you from seeing this issue from another perspective.