[Canada] Canadian Politics Redux

[Grey Fox]

I need to move out of this province. CC, are you renting a room in your house?

Certainly 

BB

The only difference between your logic and a Trump supporter is replace the word Clinton with NDP

K, thanks. Will likely move Canada Day weekend.

The Quebec way.

[saskganesh]

Ugh pc won a majority.

This would normally be a good thing if it weren't for the foul stench of Trumpian populism infecting them

I hope his vicious attacks on Canada have brought forth patriotic love for their country in the heart of every Conservative so that they might sneer at his antics.

In defence of Doug Ford...

There definitely is a resemblance between the Fords and Trump.  Which disquiets me.  But Doug Ford is not some Trump wannabe - him and his brother were like this well before Trump came on the scene.  And he and his brother did run into Toronto City Hall on a basic message of cutting waste, so I have some hope on the fiscal front.

And at least the fucking NDP didn't win.

Anybody who followed City Hall knows the Fords were fiscal incompetents . A Ford government in Ontario will be forced to run deficits, but they will get away with it because they will blame the Liberal government for making such a big mess. This fits the narrative. so will not be seriously questioned.

It's now amateur hour. However, the PC's in Ontario are very good at civil wars, so there may be a coup to look forward to.

[Ancient Demon]

Whatever Doug Ford's flaws, I find it hard to believe he'll do worse than the Liberals did.

[viper37]

explanation needed:
Ford wants to challenged the Federal law on carbon taxation.
He needs to adress Ontario's superior court, then go for the Supreme court.

But Saskatchewan is already doing that. Couldn't Ontario just wait for Saskatchewan to be ready to file the Supreme Court on this, then join the frey?

[Barrister]

explanation needed:
Ford wants to challenged the Federal law on carbon taxation.
He needs to adress Ontario's superior court, then go for the Supreme court.

But Saskatchewan is already doing that. Couldn't Ontario just wait for Saskatchewan to be ready to file the Supreme Court on this, then join the frey?

You have far less opportunity to address the court as an intervenor than as a party to the action.

[Razgovory]

explanation needed:
Ford wants to challenged the Federal law on carbon taxation.
He needs to adress Ontario's superior court, then go for the Supreme court.

But Saskatchewan is already doing that. Couldn't Ontario just wait for Saskatchewan to be ready to file the Supreme Court on this, then join the frey?

Hey, haven't heard from you in a while.  You okay?

[Jacob]

Hey CC, I see that the Supreme Court has ruled against the Trinity Western Law School. What's your take? I recall you supported Trinity. I believe the Supreme Court voted 7-2 against the school, with several different lines of reason - what are your thoughts on those?

[Barrister]

Hey CC, I see that the Supreme Court has ruled against the Trinity Western Law School. What's your take? I recall you supported Trinity. I believe the Supreme Court voted 7-2 against the school, with several different lines of reason - what are your thoughts on those?

That's a terrible decision, in particular since the SCC just ruled on TWU in a 2001 case and said it was fine.

[crazy canuck]

Hey CC, I see that the Supreme Court has ruled against the Trinity Western Law School. What's your take? I recall you supported Trinity. I believe the Supreme Court voted 7-2 against the school, with several different lines of reason - what are your thoughts on those?

To be clear I did not support the Trinity application for a law school.  But my opposition was not grounded in the fact it was a private religious school.  I simply think we already have too many law school seats for the number of articling positions available.

I will discuss the SCC decision related to the BC case as it is the one I am most familiar with.  There was an second decision related to the Ontario Law Society decision which perhaps Malthus can deal with.  There were some important procedural and factual differences in the two cases.  Some uncontested facts:

1) The proposed law school met all the academic requirements of the BC Law Society.
2) The BC Law Society approved the law school.
3) Every Student at TWU agrees to a covenant which set out a code of conduct for the school.  Part of that code is that students will not engage in sexual relations unless in a heterosexual marriage.
4) TWU has homosexual students - ie one is not required to be straight to be accepted as a student.
5) There is a sincere religious belief that the covenant is an important part of being part of the religious community at TWU.
6) After an informal Petition of members of the law society voiced disapproval of the Law Society's approval of the law school and Law Society decided to hold a referendum.  Significantly, the Board announced, prior to the holding of the referendum, that they would be bound by the results of the vote. The vote went against approval.
7) The law Society then revoked its approval and the Provincial government then followed (Law Society approval was a condition of Provincial approval).




Hard facts can make for bad law.  In my respectful view this is one such case.


At the first stage of judicial review brought by TWU the Chief Justice of the BC Supreme Court was very critical of the Law Society's abdication of their statutory decision making power by binding themselves to the results of a referendum.  There is a well established principle of administrative law that a statutory decision maker cannot fetter their discretion by relying on the judgments of others.  A statutory decision maker cannot delegate their power to another person unless they are expressly authorized to do so.  Here it is clear that the Law Society delegated their decision making authority to the members of the Society who voted in the referendum.  On that basis the BC Supreme Court quashed the second decision and reinstated the first approval decision.

On appeal to our Court of Appeal, in a unanimous ruling, our Chief Justice went further and discussed the competing Charter values.  I won't take you through the legal framework for the Charter analysis of administrative decisions but the whole of the decision is well summarized by the Chief Justice as follows:

A society that does not admit of and accommodate differences cannot be a free and democratic society — one in which its citizens are free to think, to disagree, to debate and to challenge the accepted view without fear of reprisal. This case demonstrates that a well-intentioned majority acting in the name of tolerance and liberalism, can, if unchecked, impose its views on the minority in a manner that is in itself intolerant and illiberal.

The SCC, is a complex decision and I am still considering the strands of jurisprudence that have been altered to get to this result.  But here are some initial observations:

1) the law prohibiting fettering has been substantially weakened.  Some of the majority referred to the fact that they could identify in the speeches of the Law Society when making the second decision that they had turned their mind to appropriately balancing Charter values - including religious freedom.  But that completely ignores that the Law Society had already considered itself bound by the result of the referendum. 

2) There is a troubling value judgment made by some members of the majority.  In the past all the law required was proof of a sincere religious belief.  The Court would not go further to inquire as to the value of that sincerely held belief.  In this case some members of the majority did so expressly when they held that the removal of the offending provisions of the covenant would not significantly interfere with TWU's religious community. 

Hey CC, I see that the Supreme Court has ruled against the Trinity Western Law School. What's your take? I recall you supported Trinity. I believe the Supreme Court voted 7-2 against the school, with several different lines of reason - what are your thoughts on those?

That's a terrible decision, in particular since the SCC just ruled on TWU in a 2001 case and said it was fine.

BB, I have corrected you about that in the past and I will repeat, the 2001 case regarding educating teachers was different. Both the Ontario and BC Courts of appeal unanimously held that the 2001 case was not dispositive and nobody argued that it was dispositive in their submissions to the SCC.

[grumbler]

That's a terrible decision, in particular since the SCC just ruled on TWU in a 2001 case and said it was fine.

Hasn't Canadian law since then approved same-sex marriages, changing the TWU ban from being about sex outside marriage to one about sex outside a privately-defined type of marriage?

The TWU cases remind me of the furor over the Bob Jones University ban on interracial dating on the basis of sincerely-held religious beliefs.

[Jacob]

Thanks CC

[crazy canuck]

Interesting to see the collapse of the NDP in the federal by-election.  Is this caused by local politics or unhappiness with the new leader?  Does this signal a resurgence of the Conservatives in Quebec or a flash in the pan?

[Barrister]

Interesting to see the collapse of the NDP in the federal by-election.  Is this caused by local politics or unhappiness with the new leader?  Does this signal a resurgence of the Conservatives in Quebec or a flash in the pan?

I'm no expert on Quebec politics, but my take is:

-most importantly, Conservatives ran a star candidate, the former coach of the junior hockey team.  That kind of name recognition can be huge in a low-turnout by-election
-NDP - yup the orange wave is a distant memory.  Having a religiously observant sikh leader is probably hurting the party in Quebec
-also worth noting is the collapse of the BQ vote in a riding they held prior to 2011

[Malthus]

I read the Ontario Trinity decision.

The BC one is far more problematic -- it seems that the Court has gutted the doctrine relating to the fettering of discretion. Overall, this is part of a much greater trend in the law - to constantly water down the scope of judicial review of administrative decision makers in every possible way the court can think of.

In the Ontario decision, the issues where much more straight forward, as it lacked the whole fettering issue.

To sum up the majority and dissent:

Majority: The decision engages Charter values because the students wanting to go the school arguably have their religious freedoms messed with. Sure this decision impacts freedom of religion, but not very much--it isn't a very significant impairment. You can still be just as Christian or whatever if you don't force your students to sign an express 'no gay sex' pact.

This impairment to religious freedom has to be weighed against the Law Society's fulfillment of its statutory objectives, which must be carried out in the public interest. The decision of the Law Society "...significantly advanced the statutory objectives by ensuring equal access to and diversity in the legal profession and preventing the risk of significant harm to LGBTQ people".

Given that the impairment is minor, fulfilling the statutory objectives outweighed it; so the decision of the Law Society ought to be upheld.

Dissent: Law Societies are in the business of accrediting schools based on whether they produce lawyers capable of professionally practicing law. There is no evidence this school could not do that. The law school is a private institution, not itself subject to the Charter: the decision below trying to make them subject to the Charter. Refusing them because they made students sign a no gay sex pact had nothing to do with the actual statutory objectives here. Specifically, " Ensuring equal access to and diversity in the legal profession does not fall within the LSUC's mandate to ensure competence in the legal profession."

Moreover, contrary to what the majority said, this was a significant and not a small interference in religious freedom.

...

Whether one agrees with the majority or the dissent depends on two issues:

1.  Impairment to religious freedom: major, or minor?

2. Should the Law Society be limited in determining whether to accredit schools based on whether the schools can produce trained legal professionals?

[crazy canuck]

That is a very good summary of the Ontario decision Malthus