[Canada] Canadian Politics Redux

[Malthus]

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....

They "expected" provinces would have to respond to activist courts!  That didn't actually happen - because some would say the courts (despite much whining to the contrary from conservative commentators) has been, as your article states, comparatively "timid".

Read beyond the first sentence:

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.

Provinces have not had to overerule "activist" judges to the extent the premiers feared. This does not attack the thesis I advanced, it supports it.

Provinces using the clause to overrule activist judges who interfere with vital provincial programs = not "abuse" of the clause. This was the problem the premiers foresaw and why they wanted the clause.

What would prevent "abuse" - i.e., use of the clause to strip Canadians of rights and freedoms - would be political pain.

[crazy canuck]

Saskatchewan and Quebec proactively invoked s. 33.  That is what the gang of 8 thought would happen more often.  It was not just a clause to be invoked after a Charter challenge was lost.  The main point was to avoid the time and expense of litigating those questions and simply assert parliamentary supremacy recognized by clause 33.  What has happened is the reverse.  Most governments litigate and pin their hopes on s.1.

[Malthus]

Saskatchewan and Quebec proactively invoked s. 33.  That is what the gang of 8 thought would happen more often.  It was not just a clause to be invoked after a Charter challenge was lost.  The main point was to avoid the time and expense of litigating those questions and simply assert parliamentary supremacy recognized by clause 33.  What has happened is the reverse.  Most governments litigate and pin their hopes on s.1.

Yes, because they prefer to rely on the courts doing the interest-balancing for them, than invoke the clause.

Why?

Simple - if the courts do it, it demonstrates they aren't "abusing" the clause to strip Canadians of rights and freedoms - but rather, that an independent arbiter (the courts) have found the infringement of rights justified in a free and democratic society in the circumstances.

The premiers could not have known how the courts would handle s.1 at the time the clause was negotiated. They did not know the courts would create the Oaks test, as they did in 1986--four years after the Charter was adopted.   

However, given the Oaks test, it is now far more likely that the reason to pre-emptively invoke the clause is going to be "abuse" - because the province knows that the measures it is adopting cannot be justified in a "free an democratic society".

[Barrister]

However, given the Oaks test, it is now far more likely that the reason to pre-emptively invoke the clause is going to be "abuse" - because the province knows that the measures it is adopting cannot be justified in a "free an democratic society".

Sorry, I can't help myself - it's the Oakes test.

[Malthus]

However, given the Oaks test, it is now far more likely that the reason to pre-emptively invoke the clause is going to be "abuse" - because the province knows that the measures it is adopting cannot be justified in a "free an democratic society".

Sorry, I can't help myself - it's the Oakes test.

Noted! 

Any words of legal wisdom on the debate?

[Barrister]

However, given the Oaks test, it is now far more likely that the reason to pre-emptively invoke the clause is going to be "abuse" - because the province knows that the measures it is adopting cannot be justified in a "free an democratic society".

Sorry, I can't help myself - it's the Oakes test.

Noted! 

Any words of legal wisdom on the debate?

It's not really a legal debate - more of a historical debate over the intention of the writers of the Charter.  For what it's worth I find your argument more compelling.

[Josephus]

Oh God, the lawyers are it.

[crazy canuck]

However, given the Oaks test, it is now far more likely that the reason to pre-emptively invoke the clause is going to be "abuse" - because the province knows that the measures it is adopting cannot be justified in a "free an democratic society".

Sorry, I can't help myself - it's the Oakes test.

I stand corrected 

[crazy canuck]

Saskatchewan and Quebec proactively invoked s. 33.  That is what the gang of 8 thought would happen more often.  It was not just a clause to be invoked after a Charter challenge was lost.  The main point was to avoid the time and expense of litigating those questions and simply assert parliamentary supremacy recognized by clause 33.  What has happened is the reverse.  Most governments litigate and pin their hopes on s.1.

Yes, because they prefer to rely on the courts doing the interest-balancing for them, than invoke the clause.

And so now I am convinced you have not actually read my posts, so I will return the favour.

[Valmy]

Oh God, the lawyers are it.

Caution: Lawyers at Work

[Malthus]

Saskatchewan and Quebec proactively invoked s. 33.  That is what the gang of 8 thought would happen more often.  It was not just a clause to be invoked after a Charter challenge was lost.  The main point was to avoid the time and expense of litigating those questions and simply assert parliamentary supremacy recognized by clause 33.  What has happened is the reverse.  Most governments litigate and pin their hopes on s.1.

Yes, because they prefer to rely on the courts doing the interest-balancing for them, than invoke the clause.

And so now I am convinced you have not actually read my posts, so I will return the favour.

That's too bad.

[Barrister]

Wilson-Raybould and Philpott ejected from Liberal caucus - not allowed to run as Liberals in the next election.

Not sure if that's wise.  Both at least somewhat held their tongues as members of caucus.  This may free both to launch even more attacks at Trudeau.  Scheer basically invited both to join the Conservative caucus, but not sure either are inclined to go that route.

[Zoupa]

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".

That's not what Grey Fox is saying. But I would argue that forbidding religious expression of any kind would be quite freeing to lots and lots of people.

[Barrister]

That's not what Grey Fox is saying. But I would argue that forbidding religious expression of any kind would be quite freeing to lots and lots of people.

How so?

My feeling is that such a law would cause an awful lot of non-Christian people who hold religious views to quit their government jobs,

[Zoupa]

You're thinking too literally. I'm talking about freeing your mind from all that religious nonsense.

Il n'est pas de sauveur supreme, ni dieu, ni cesar, ni tribun.