[Canada] Canadian Politics Redux

[Malthus]

If the Feds decide they should intervene in Quebec's politics, I don't see why they would shun from doing it in other provinces.  Unless you are saying there is something very special about Quebec that requires the kind of interventions the other provinces do not need?

Quebec's government is in the habit of doing  stuff contrary to the Charter - indeed, it's doing more of it right now!  Invoking the "notwithstanding" clause to ban women wearing hijabs from working in 'responsible' positions:

https://www.theglobeandmail.com/canada/article-quebec-tables-legislation-on-religious-symbols-ban-includes/

The Charter includes the notwithstanding clause.  But it is fashionable these days to ignore that.

Gérard V. La Forest, then of the New Brunswick Court of Appeal and later of the Supreme Court of Canada, must have anticipated "fashion" back when it was first enacted:

My guess is that this provision will rarely be used. The political unpopularity of making declarations contrary to the Charter will militate against this.

[Grey Fox]

To pretend/think that using the notwithstanding clause is controversial or new is just another proof that the RoC is hypocrite & ignores Quebec.

It isn't new, use of it was always intended to be controversial - and some people will find "proof" of what they want to believe in anything.

https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/201817E

The whole point was that its use was supposed to be restrained by the "unpopularity" of invoking it.

Constitutional expert Peter Hogg:

Presumably, the exercise of the power would normally attract such political opposition that it would rarely be invoked ... [T]he necessity of re-enactment every five years will force periodic reconsideration of each exercise of the override power, at intervals which (in some jurisdictions at least) will often yield a change of government. This reinforces the already powerful political safeguards against an ill-considered use of the power.

Gérard V. La Forest, then of the New Brunswick Court of Appeal and later of the Supreme Court of Canada:

My guess is that this provision will rarely be used. The political unpopularity of making declarations contrary to the Charter will militate against this.

... but of course our local Languish experts know better. 

How can it be rare when the provincial legislature put it in everything for 4 years?

[Barrister]

To pretend/think that using the notwithstanding clause is controversial or new is just another proof that the RoC is hypocrite & ignores Quebec.

It isn't new, use of it was always intended to be controversial - and some people will find "proof" of what they want to believe in anything.

https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/201817E

The whole point was that its use was supposed to be restrained by the "unpopularity" of invoking it.

Constitutional expert Peter Hogg:

Presumably, the exercise of the power would normally attract such political opposition that it would rarely be invoked ... [T]he necessity of re-enactment every five years will force periodic reconsideration of each exercise of the override power, at intervals which (in some jurisdictions at least) will often yield a change of government. This reinforces the already powerful political safeguards against an ill-considered use of the power.

Gérard V. La Forest, then of the New Brunswick Court of Appeal and later of the Supreme Court of Canada:

My guess is that this provision will rarely be used. The political unpopularity of making declarations contrary to the Charter will militate against this.

... but of course our local Languish experts know better. 

How can it be rare when the provincial legislature put it in everything for 4 years?

If I recall correctly, after the Charter passed in 1982 the Quebec National Assembly used the Notwithstanding clause for all of its laws in effect.  But that was back in the mid-80s.

I would say that the fact they haven't done that in the last 30 years makes it pretty rare.

[crazy canuck]

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.

This historic trade off was that the supremacy of parliament would be recognized in the Nothwithstanding clause but the exclusion of legislation from Court review would need to be renewed by successive governments.  If one goes back to the debates when the Charter was becoming law, the reason given for the need to for the clause to be renewed was the other side of the historic trade off that yes, parliamentary supremacy will be acknowledged, but must be asserted by successive governments (hence the 4 year cycle).

The whole notion that it would be wrong to make such a political judgment is more recent.  The original notion was that if there was sufficient political support to opt out then a government should make that call, rather than leaving political issues to the Courts to decide.

But what has occurred in Canadian society is that we have become much more similar to the Americans in our views about 'constitutional rights" and a view that they are absolute rights that should never be abrogated by an act of government.  It would be interesting to know what has caused this shift in attitude - exposure to American media and political views without fully understanding the differences in our Constitutions is perhaps one factor.  I also think another important factor is that, unlike what had been anticipated, politicians have left important political decisions to the Courts to decide.  If one looks at the original debates, that was not anticipated.  It was largely thought that the Courts were ill equipped to make political judgments.  But it is politically expedient to leave an issue to the Courts and then claim the government is powerless or better still, complying with Charter Values.

[viper37]

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.

[Barrister]

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.

Okay fine.  But why can't my colleague Sony wear his Sikh turban while working as a Crown prosecutor?  Or why couldn't someone wear an islamic head covering work as a cop?

[Grey Fox]

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.

Okay fine.  But why can't my colleague Sony wear his Sikh turban while working as a Crown prosecutor?  Or why couldn't someone wear an islamic head covering work as a cop?

Because they are religious symbols, oppressive religious symbols in some cases.

[Barrister]

Obviously they are religious symbols.  What makes them oppressive?

[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! 

Just that use of the clause = a decision to act contrary to the Charter. By which, of course, is meant all of the rights actually included in those sections of the Charter that could be overridden by the clause.

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

This historic trade off was that the supremacy of parliament would be recognized in the Nothwithstanding clause but the exclusion of legislation from Court review would need to be renewed by successive governments.  If one goes back to the debates when the Charter was becoming law, the reason given for the need to for the clause to be renewed was the other side of the historic trade off that yes, parliamentary supremacy will be acknowledged, but must be asserted by successive governments (hence the 4 year cycle).

The whole notion that it would be wrong to make such a political judgment is more recent.  The original notion was that if there was sufficient political support to opt out then a government should make that call, rather than leaving political issues to the Courts to decide.

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

The notion was never that it was "wrong" to do so, but that doing so would be judged wrong by the populace because using the clause was an acknowledgement that the government of the day was willing to override fundamental rights.

That's why it's use was predicted to be "rare" - because "The political unpopularity of making declarations contrary to the Charter will militate against this." Not my words and, important for this debate, not recent!

But what has occurred in Canadian society is that we have become much more similar to the Americans in our views about 'constitutional rights" and a view that they are absolute rights that should never be abrogated by an act of government.  It would be interesting to know what has caused this shift in attitude - exposure to American media and political views without fully understanding the differences in our Constitutions is perhaps one factor.  I also think another important factor is that, unlike what had been anticipated, politicians have left important political decisions to the Courts to decide.  If one looks at the original debates, that was not anticipated.  It was largely thought that the Courts were ill equipped to make political judgments.  But it is politically expedient to leave an issue to the Courts and then claim the government is powerless or better still, complying with Charter Values.

Except, as the actual sources show, the thesis is wrong. Legal scholars at the time predicted that use of the clause would be "politically unpopular", and this was a feature, not a bug. The prediction they made that was wrong was that the main use of the clause was to save social programs that may 'technically' violate the Charter, simply to avoid having to make constitutional amendments - that it wouldn't be used in controversial cases. 

Again, not my analysis:

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;28 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. In this last case, it might be argued that a government claiming to be in agreement with a court ruling enacted a legislative measure said to be consistent with the spirit of that court ruling but, for greater certainty and to avoid future litigation, included a section 33 override clause.

The source is pretty authoritative:  https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/201817E

[Valmy]

Obviously they are religious symbols.  What makes them oppressive?

If they are compulsory and you will possibly face public censor if you decide not to wear them? However, the symbolism involved is also important. Though I guess I would need an example of something you consider oppressive before I could accurately answer that question from your point of view.

[Malthus]

How can it be rare when the provincial legislature put it in everything for 4 years?

The commentators were commenting on how they *thought* it would be used. In short, making predictions.

They did not predict that the Quebec govt would invoke it in everything for four years in a fit of legislative pique.

The commentary acknowledges this:

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;28 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.

[crazy canuck]

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.

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.

[crazy canuck]

How can it be rare when the provincial legislature put it in everything for 4 years?

The commentators were commenting on how they *thought* it would be used. In short, making predictions.

They did not predict that the Quebec govt would invoke it in everything for four years in a fit of legislative pique.

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

[Barrister]

I wonder if Ford's recent invocation of s. 33 might make it's use more popular.  For our foreign lurkers, Premier Ford promised to reduce the size of Toronto City council.  A court stayed that change, saying it was contrary to the Charter.  Ford said he'd invoke s. 33.  A little while later the Court of Appeal basically agreed with Ford, held that such changes were well within the province's ability to make, and not contrary to the Charter.

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

[Grey Fox]

How can it be rare when the provincial legislature put it in everything for 4 years?

The commentators were commenting on how they *thought* it would be used. In short, making predictions.

They did not predict that the Quebec govt would invoke it in everything for four years in a fit of legislative pique.

The commentary acknowledges this:

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;28 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.

Interesting

Sucks that Lake Meech failure makes fixing our constitution impossible.