[Canada] Canadian Politics Redux

[crazy canuck]

Sounds like Doug Ford is going to call an early election.

Probably (my guess) before any US tariffs start to really bite.

https://www.cbc.ca/news/canada/toronto/ontario-election-as-early-as-next-week-1.7438260

That and Poillevere. Interestingly, Ontario and the Feds have always had opposite leaders win elections. So if a Conservative is running Ottawa, statistics show Ontario would go Liberal or NDP (once).

Ah Yeah, I hadn't thought of that, the thought of running a provincial election after the coming federal election would not be very attractive to Ford.

[crazy canuck]

I wonder if this got reported in Quebec-I would assume it is front page news in that province.  Not really a mention here with everything else going on.

The SCC has granted leave to hear the appeal of the secularism legislation in Quebec.  The Court will be grappling with whether the Notwithstanding Clause can protect the legislation from constitutional scrutiny by the courts.

[Grey Fox]

Yes, it made front page news yesterday.

Early editorials were mostly about how both the LPC and CPC are parties against the law. Today's editorials were about the perceived moral superiority of Canada versus the democratic choices of Québec.

There's also some that have mentioned that this might be about curtailing the withstanding clause.

[Barrister]

Yes, it made front page news yesterday.

Early editorials were mostly about how both the LPC and CPC are parties against the law. Today's editorials were about the perceived moral superiority of Canada versus the democratic choices of Québec.

There's also some that have mentioned that this might be about curtailing the withstanding clause.

I'm very much in the "Quebec's secularism law is terrible, but the Notwithstanding clause is a thing that should be respected" camp.

Any link to a news story - or even better yet the court decision itself?

[crazy canuck]

Yes, it made front page news yesterday.

Early editorials were mostly about how both the LPC and CPC are parties against the law. Today's editorials were about the perceived moral superiority of Canada versus the democratic choices of Québec.

There's also some that have mentioned that this might be about curtailing the withstanding clause.

The case is definitely going to be about the Notwithstanding Clause.  The other issues on appeal would be moot if the court decides the clause precludes the courts review.

With one important exception.  The language rights under section 23 are not subject to the Notwithstanding Clause and so the case could be about that.

[Neil]

I wonder if this got reported in Quebec-I would assume it is front page news in that province.  Not really a mention here with everything else going on.

The SCC has granted leave to hear the appeal of the secularism legislation in Quebec.  The Court will be grappling with whether the Notwithstanding Clause can protect the legislation from constitutional scrutiny by the courts.

So the idea is that the courts want to be able to rule on the constitutionality of things that the provinces are going to use the clause on anyways?  What's the purpose of that?  Are they looking for a way to use these provincial bills as an opportunity to create legal precedent for the rest of the country?  That seems like a bit of an overreach by the Court.  Or are they trying to find a way to override the clause?  That seems even worse. 

[crazy canuck]

No, the other way around, the court is going to decide what the Notwithstanding clause means.

[Neil]

No, the other way around, the court is going to decide what the Notwithstanding clause means.

Isn't that pretty well-defined at this point?

[Barrister]

No, the other way around, the court is going to decide what the Notwithstanding clause means.

Isn't that pretty well-defined at this point?

s. 33 (Notwithstanding clause) has hardly ever - if ever at all - been litigated.

When first introduced I think Saskatchewan just issued a blanket "notwithstanding" ruling to all its legislation, but beyond that it simply was never used for the first many years.  It was seen as being politically poisonous.

I think the first "modern" useage was when Ontario sought to reduce the number of seats on Toronto City Council.  A lower court judge blocked the move, the Province used s. 33.  In the end the courts said that Ontario reducing the number of seats was not a Charter violation, thus didn't need to adjudicate s. 33.

But the reading of s. 33 is pretty plain - Parliament or Legislature can violate s. 2 or 7 through 15 if they follow certain basic procedures.  So the only question is what Charter right is engaged.  You could not, for example, use s. 33 to violate language rights (s. 16-23) or democratic rights (s. 3), but if the right right (heh) is invoked then the court should have nothing to say.

[crazy canuck]

No, the other way around, the court is going to decide what the Notwithstanding clause means.

Isn't that pretty well-defined at this point?

As BB said, it has not been judicially considered (as we say in the biz).  This will be the first time the Court has taken a hard look at it.

I disagree with BB's analysis that the question before the court will be as limited or as straightforward has he has described.  I expect the Court will engage in a much more nuanced textual analysis.  They have made some rather interesting (being diplomatic here) pronouncements about Charter Values in recent cases.  And I expect the analysis is going to include a large discussion about the interplay between Charter Values and the Notwithstanding Clause.

[Barrister]

No, the other way around, the court is going to decide what the Notwithstanding clause means.

Isn't that pretty well-defined at this point?

As BB said, it has not been judicially considered (as we say in the biz).  This will be the first time the Court has taken a hard look at it.

I disagree with BB's analysis that the question before the court will be as limited or as straightforward has he has described.  I expect the Court will engage in a much more nuanced textual analysis.  They have made some rather interesting (being diplomatic here) pronouncements about Charter Values in recent cases.  And I expect the analysis is going to include a large discussion about the interplay between Charter Values and the Notwithstanding Clause.

They better be careful.

s. 33 was specifically brought in to protect against judicial over-reach.

If you think about the Toronto City Council situation - really how on earth would that engage the Charter?  Why does the Charter say you should have 20, rather than 10, city counsellors?  Which is where the ONCA came down on - but because the election was coming soon the province invoked notwithstanding and thus opening the door.

Now to be clear Quebec isn't acting against judicial over-reach.  They just decided they didn't care about the Charter in this situation.  The violation against minority religious rights are pretty blatant.  But to just "read-in" some way to get around s. 33 would not be a good move.

[Josephus]

If you think about the Toronto City Council situation - really how on earth would that engage the Charter?  Why does the Charter say you should have 20, rather than 10, city counsellors?  Which is where the ONCA came down on - but because the election was coming soon the province invoked notwithstanding and thus opening the door.

You'd think so. But strangely it was a close vote. Only 5 out of the nine judges agreed.

[Neil]

If you think about the Toronto City Council situation - really how on earth would that engage the Charter?  Why does the Charter say you should have 20, rather than 10, city counsellors?  Which is where the ONCA came down on - but because the election was coming soon the province invoked notwithstanding and thus opening the door.

You'd think so. But strangely it was a close vote. Only 5 out of the nine judges agreed.

Shocking that the judiciary would attempt to circumvent any restrictions upon their power.  Absolutely stunned.

[crazy canuck]

No, the other way around, the court is going to decide what the Notwithstanding clause means.

Isn't that pretty well-defined at this point?

As BB said, it has not been judicially considered (as we say in the biz).  This will be the first time the Court has taken a hard look at it.

I disagree with BB's analysis that the question before the court will be as limited or as straightforward has he has described.  I expect the Court will engage in a much more nuanced textual analysis.  They have made some rather interesting (being diplomatic here) pronouncements about Charter Values in recent cases.  And I expect the analysis is going to include a large discussion about the interplay between Charter Values and the Notwithstanding Clause.

They better be careful.

s. 33 was specifically brought in to protect against judicial over-reach.

If you think about the Toronto City Council situation - really how on earth would that engage the Charter?  Why does the Charter say you should have 20, rather than 10, city counsellors?  Which is where the ONCA came down on - but because the election was coming soon the province invoked notwithstanding and thus opening the door.

Now to be clear Quebec isn't acting against judicial over-reach.  They just decided they didn't care about the Charter in this situation.  The violation against minority religious rights are pretty blatant.  But to just "read-in" some way to get around s. 33 would not be a good move.

I agree with you, but I am not sure the Supreme Court of Canada will.

[viper37]

Pierre's cabinet

That one made me laugh.
"John's personal opinion.  Just like we practiced"