[Canada] Canadian Politics Redux

[viper37]

Could be of interest.


'Potentially disastrous': The Hub's legal experts react to the Supreme Court's explosive decision regarding Quebec's secularism law 

From our prime minister announcing his resignation to Donald Trump retaking the Oval Office to a looming trade war between Canada and the U.S., it has been a busy year in news—and we're not even a month in.
Perhaps lost in the bustle was a judicial development last week that deserves some serious attention: the Supreme Court's decision to hear a challenge of Quebec's secularism law, Bill 21, that prohibits civil servants in positions of authority from wearing religious symbols while on the job.

We've gathered some of The Hub's top legal experts and insiders to break down why this is such a big deal, what this has to do with the notwithstanding clause, and why a constitutional crisis is now looming.


Canadian unity is at stake
By Stéphane Sérafin, a law professor at the University of Ottawa
It is hard to imagine a more politically explosive case in which the Supreme Court could choose to revisit the conditions for the use of Section 33. This is a case out of Quebec, concerning its act respecting the laïcité of the state, also known as Bill 21. 

As Quebec Attorney General Simon Jolin-Barrette and Quebec's minister responsible for laïcité, Jean-François Roberge, reaffirmed in a statement issued in response to the leave decision, that act is considered fundamental to Quebec's distinct cultural identity. It has been protected from interference by federally appointed judges through the use of Section 33, which enjoys special legitimacy in Quebec owing to its lack of consent to the 1982 Constitution, and thus the Charter as a whole.

If current polling trends continue, the Parti Québécois will form a strong majority government in the next Quebec election on a platform that includes holding another secession referendum. The "Oui" camp can scarcely hope for a better argument in which to anchor its campaign than a Supreme Court of Canada decision rendered by a majority of non-Quebec justices setting limits on its use of Section 33 to protect Bill 21. One can only hope that the Supreme Court will avert this outcome by holding to the correct interpretation of Section 33, instead of giving in to activist arguments that will put Canada on a constitutional precipice.

[...]

[crazy canuck]

That is a Quebec centred analysis, but understandable given that it is Quebec legislation that will be reviewed.  I would argue that the unity crisis would go deeper than Quebec though. One of the trade-offs for giving up the right to appeal to the Privy Council from the Supreme Court of Canada was the Notwithstanding provision.

Reading that provision down would be a fundamental change to how our Federation is structured.

What little optimism I have left in this iteration of our court is that they gave leave in order to clarify that point.  But as I said earlier in this thread, some of their more recent decisions makes me less optimistic.

[Barrister]

So Trudeau is apparently going to fill all Senate vacancies before he leaves office.

https://www.cbc.ca/news/politics/trudeau-senate-appointments-1.7440716

This was by now a long time ago, but this was considered a major blunder by Trudeau Sr and John Turner back in 1984.

https://en.wikipedia.org/wiki/You_had_an_option,_sir

Let's assume for the sake of argument the Conservatives win the next election (I agree - not a foregone conclusion).

The Senate has the potential to be a major constitutional crisis in the years to come.  It's always been accepted that Senators have no democratic legitimacy, and thus while they're willing to delay legislation from time to time, they won't act against a democratically elected House of Commons.

Trudeau though through his Liberal senators out of caucus.  He has only appointed "independent" senators - despite how many of them have very obvious links to the Liberal Party.  After a decade in power a very large majority of Senators now sit as Independents.  (There is still a small Conservative opposition).

So - if the Conservatives win a majority, will the Independent Senators (but who are mostly Liberals) feel empowered to block major pieces of Conservative legislation, since they're "independent"?

[viper37]

So - if the Conservatives win a majority, will the Independent Senators (but who are mostly Liberals) feel empowered to block major pieces of Conservative legislation, since they're "independent"?

It will depend on the legislation.

We have seen with this current Senate that the current Senators aren't too strong on outright blocking bills for the sake of partisanship.  I doubt they would in the future.

But a bill to defund the CBC would face opposition in the Senate for sure.  A bill that restrict rights of transgender individuals too.

[Grey Fox]

So Trudeau is apparently going to fill all Senate vacancies before he leaves office.

https://www.cbc.ca/news/politics/trudeau-senate-appointments-1.7440716

This was by now a long time ago, but this was considered a major blunder by Trudeau Sr and John Turner back in 1984.

https://en.wikipedia.org/wiki/You_had_an_option,_sir

Let's assume for the sake of argument the Conservatives win the next election (I agree - not a foregone conclusion).

The Senate has the potential to be a major constitutional crisis in the years to come.  It's always been accepted that Senators have no democratic legitimacy, and thus while they're willing to delay legislation from time to time, they won't act against a democratically elected House of Commons.

Trudeau though through his Liberal senators out of caucus.  He has only appointed "independent" senators - despite how many of them have very obvious links to the Liberal Party.  After a decade in power a very large majority of Senators now sit as Independents.  (There is still a small Conservative opposition).

So - if the Conservatives win a majority, will the Independent Senators (but who are mostly Liberals) feel empowered to block major pieces of Conservative legislation, since they're "independent"?

Hopefully.

[Barrister]

So - if the Conservatives win a majority, will the Independent Senators (but who are mostly Liberals) feel empowered to block major pieces of Conservative legislation, since they're "independent"?

It will depend on the legislation.

We have seen with this current Senate that the current Senators aren't too strong on outright blocking bills for the sake of partisanship.  I doubt they would in the future.

But a bill to defund the CBC would face opposition in the Senate for sure.  A bill that restrict rights of transgender individuals too.

You're missing the key point though - current Senators are mostly Liberals who call themselves independent.  The very large majority was appointed by Trudeau at this point.  So of course they're not going to block Liberal bills for "partisanship".

The only time I can think that the Senate acted to deliberately block a piece of legislation was the GST back in 1990.  The Liberal Senators at least had the advantage that the GST was widely unpopular so they didn't get much public push-back for that position.  The also restricted their opposition just to the GST, not to other legislation under Mulroney.  Despite the election being about Free Trade, the Senate did not resist the eventual Free Trade bill.

"Defunding" the CBC - would likely be part of a budget.  Can the Senate refuse to pass a budget?  I honestly don't know.

[Barrister]

Hopefully.

Seriously?

Think ahead.  It's the year 2040.  60 year old Prime Minister Poilievre has been defeated after being in power for 15 years.  The new left-wing government comes forward with an ambitious agenda of social change.

But after 15 years in power the Conservative majority in the Senate vows to block everything.

Does that sound like a good idea?

[Grey Fox]

No, I guess not.

But my side is not the side the Nazis are happy to see in power.

The federal government, no matter who's in government, blocks all kinds of ideas and policies for and from Québec. Not going to shed a tears when it happens to someone else.

[viper37]

You're missing the key point though - current Senators are mostly Liberals who call themselves independent.  The very large majority was appointed by Trudeau at this point.  So of course they're not going to block Liberal bills for "partisanship".

The only time I can think that the Senate acted to deliberately block a piece of legislation was the GST back in 1990.  The Liberal Senators at least had the advantage that the GST was widely unpopular so they didn't get much public push-back for that position.  The also restricted their opposition just to the GST, not to other legislation under Mulroney.  Despite the election being about Free Trade, the Senate did not resist the eventual Free Trade bill.

"Defunding" the CBC - would likely be part of a budget.  Can the Senate refuse to pass a budget?  I honestly don't know.

I did not miss the key point, but the Senate isn't as partisan as it is in the US, despite being affiliated (less so than before) to a specific party.  It's not like the House of Commons.  You don't see the Senators voting in block along party lines.  Well, not very often.

Defunding the CBC would come with a change of its role, so I imagine it would be a specific piece of legislation overhauling all the changes to the organization.

To the last question, can the refuse to vote on a budget?  Theoritically, yes, I don't think anything could prevent it.  They are unlikely to do it though, unless there is something really eggregious about it.  They may resend the budget to the House, triggering a Constitutional crisis though, as I don't think it's been ever done, and it would delay the adoption of the credits by the House committee.

[crazy canuck]

So - if the Conservatives win a majority, will the Independent Senators (but who are mostly Liberals) feel empowered to block major pieces of Conservative legislation, since they're "independent"?

It will depend on the legislation.

We have seen with this current Senate that the current Senators aren't too strong on outright blocking bills for the sake of partisanship.  I doubt they would in the future.

But a bill to defund the CBC would face opposition in the Senate for sure.  A bill that restrict rights of transgender individuals too.

You're missing the key point though - current Senators are mostly Liberals who call themselves independent.  The very large majority was appointed by Trudeau at this point.  So of course they're not going to block Liberal bills for "partisanship".

The only time I can think that the Senate acted to deliberately block a piece of legislation was the GST back in 1990.  The Liberal Senators at least had the advantage that the GST was widely unpopular so they didn't get much public push-back for that position.  The also restricted their opposition just to the GST, not to other legislation under Mulroney.  Despite the election being about Free Trade, the Senate did not resist the eventual Free Trade bill.

"Defunding" the CBC - would likely be part of a budget.  Can the Senate refuse to pass a budget?  I honestly don't know.

I agree with the point you are making regarding the role of the Senate in our Federation.  It is supposed to be the chamber of sober second thought where amendments are proposed for the consideration of Parliament.  It is not to adopt the American model where Senate can prevent legislation from becoming law. 

This the main reason I could not support Manning's Senate reform proposals.

[viper37]

Look. We had many chances to change the Constitution.  "It was never the right moment", "there was no appetite for this", "there was no need to change it for Quebec", so you kinda have to deal with the mess you guys have created.  You did not want change when it was time, so just deal with it.

It sucks because it's the Liberals, and it's likely to suck if a more right wing populist government does it in the future, but it's what we got.

[crazy canuck]

To the last question, can the refuse to vote on a budget?  Theoritically, yes, I don't think anything could prevent it.  They are unlikely to do it though, unless there is something really eggregious about it.  They may resend the budget to the House, triggering a Constitutional crisis though, as I don't think it's been ever done, and it would delay the adoption of the credits by the House committee.

Strongly disagree.  Theoretically Senate should never prevent a budget bill from passing. That is the core Parliamentary power.  Senate can suggest Parliament consider the fine print on a finance bill, but never prevent its passing.

[crazy canuck]

Look. We had many chances to change the Constitution.  "It was never the right moment", "there was no appetite for this", "there was no need to change it for Quebec", so you kinda have to deal with the mess you guys have created.  You did not want change when it was time, so just deal with it.

It sucks because it's the Liberals, and it's likely to suck if a more right wing populist government does it in the future, but it's what we got.

There is no mess to clean up.  There are people trying to use the Constitution in ways that were never intended.

[Barrister]

The federal government, no matter who's in government, blocks all kinds of ideas and policies for and from Québec. Not going to shed a tears when it happens to someone else.

Umm, they actually don't.

Don't get me wrong - the Federal Government has the power to do it.  It's called "disallowance".  The Federal government, if it wanted to, could have disallowed the entire laicite bill, or any other bill.  But they don't - it's seen as undemocratic.  Apparently the last time the power was used was in 1943 (against Alberta), but even by then it was rarely used.

I'm actually struggling to think of an example where the Federal government has blocked policies from Quebec.

But my side is not the side the Nazis are happy to see in power.

Grow up Francis.

I don't expect you to like Poilievre and the Conservatives, but they're not Nazis.  They don't plan to invade Poland, don't plan to round up Jews, don't plan to burn the Reichstag.

Pierre Poilievre is not a terrific dancer.

[Barrister]

I agree with the point you are making regarding the role of the Senate in our Federation.  It is supposed to be the chamber of sober second thought where amendments are proposed for the consideration of Parliament.  It is not to adopt the American model where Senate can prevent legislation from becoming law. 

This the main reason I could not support Manning's Senate reform proposals.

That was a feature, not a bug.

The idea was that if you then give the Senate democratic legitimacy the Senate then would be empowered to block legislation.

It's a question it's era.  Back in the 80s-90s you A: had the Liberal ruling Canada under Trudeau and later Chretien with negligible representation from the West, and B: in the US you had a Senate that would not operate on strictly partisan lines.

So the idea that the Commons would have to negotiate with an elected Senate even if dominated by a different party has a lot of appeal.

Now in 2025 we see a US Senate that operates almost entirely on a hyper-partisan basis I think the EEE Senate has lost some appeal (although I still think Senate reform is called for).