[Canada] Canadian Politics Redux

[crazy canuck]

Rustad, leader of the BC Conservative Party, is going rough a leadership review right now.

Here's an article on the topic, with a fairly catchy opening paragraph:

The more than 2,100 new members signed up suddenly to the BC Conservative party late last month had many fishy signs. But perhaps the most suspicious of all? Some of them were dead.

https://www.vancouverisawesome.com/economy-law-politics/rob-shaw-phantom-bc-conservatives-cast-shadow-over-rustads-leadership-review-11212235

Thanks for posting this.  Rob Shaw does excellent work.  A good indication that Rustad is likely to lose the leadership contest.  I am not sure why former Liberal party supporters would be trying to prop him up. I would have thought they would want force a leadership contest so that they could come in and take over the party - just like the Social Credit supporters took over the provincial Liberal party back in the day.

One thought is that they might not be ready to do it yet and so they need Rustad to hang on a bit more, before he gets taken down.  Pure conjecture on my part.

[Josephus]

Re: right wing resurgence. It's not as bad as the UK so far no.  But I am seeing a lot more anti immigration sentiment (there was a rally in Toronto to last weekend) and people in my hometown here in Oshawa, as blue collar a town as you can get, are organizing a memorial for that Kirk dude this weekend

Alberta will be introducing "citizenship markers" on new editions of driver's licenses and identification cards.

https://www.cbc.ca/news/canada/calgary/alberta-drivers-licence-identification-card-citizenship-1.7634163

I am concerned that this won't be recognized for what it is - an attempt to limit the ability to vote for people who are more likely to support the NDP in Alberta.

To get the "C" notation on the drivers license a Canadian citizen will need to have a passport.  Guess what group of Canadians tend not to have passports.

I don't disagree with this. One thing , though, all naturalized Canadians do have an ID card(a citizenship card) which I assume can be used instead of a passport

[Jacob]

I don't disagree with this. One thing , though, all naturalized Canadians do have an ID card(a citizenship card) which I assume can be used instead of a passport

We do?

[crazy canuck]

Re: right wing resurgence. It's not as bad as the UK so far no.  But I am seeing a lot more anti immigration sentiment (there was a rally in Toronto to last weekend) and people in my hometown here in Oshawa, as blue collar a town as you can get, are organizing a memorial for that Kirk dude this weekend

Alberta will be introducing "citizenship markers" on new editions of driver's licenses and identification cards.

https://www.cbc.ca/news/canada/calgary/alberta-drivers-licence-identification-card-citizenship-1.7634163

I am concerned that this won't be recognized for what it is - an attempt to limit the ability to vote for people who are more likely to support the NDP in Alberta.

To get the "C" notation on the drivers license a Canadian citizen will need to have a passport.  Guess what group of Canadians tend not to have passports.

I don't disagree with this. One thing , though, all naturalized Canadians do have an ID card(a citizenship card) which I assume can be used instead of a passport

I am not sure what you are referring to.  What is this ID card? I have never had one.  And I don't think anything can be used in lieu of a passport where a passport is required.

[Grey Fox]

I remember those cards. Looking it up they were discontinued in 2012.

[Zoupa]

I have one where I'm 6 years old in the picture. I never quite understood how it could be used as ID.

[Bauer]

It's a citizenship certificate now, my wife and son both have one.

[crazy canuck]

How does a person get one of those?

The only proof the members of my family have that they are Canadian citizens are our birth certificates, and our passports. 

[Bauer]

The main purpose of them is for people born outside of Canada but the website claims you can apply for one to replace your birth certificate too.

https://www.canada.ca/en/immigration-refugees-citizenship/services/canadian-citizenship/proof-citizenship/valid.html#wb-cont

[Josephus]

I don't disagree with this. One thing , though, all naturalized Canadians do have an ID card(a citizenship card) which I assume can be used instead of a passport

We do?

I do. How else do you prove your citizenship?

Ok, reading on....I never knew they were discontinued. I still have mine. When I became Canadian I was given one along with a certificate. I used that, the photo ID, to prove citizenship, like when I applied for my passport.  You can't use it, obviously, to travel outside of the country, (it's not a passport) but it is goverment ID. My mom, who never had a driver's license,  always used it to vote and once when we flew to Alberta. Without it, she wouldn't have any picture ID at all. She stopped renewing her passport a while ago.

Google Images Canadian citizenship card id sample.

CC: Your wife was not born here, I take it? How does she prove citizenship say when she applied for a passport?

[crazy canuck]

People born here need to produce either their birth certificate or passport to prove citizenship.

But we are getting way off topic.  Introducing the requirement to prove citizenship to vote is replicating the play being used by the American right.  It's a solution to a problem that does not exist with the real goal of keeping a group of people off the eligible voter list ie those people who don't have ready access to those documents.

Btw Mrs CC was born in the Canadian arctic

[viper37]

Ottawa calls on Supreme Court to clarify the law around use of Charter's notwithstanding clause

Ottawa is calling on the Supreme Court of Canada to clarify the law around governments' use of the Charter's notwithstanding clause, arguing that courts should have a bigger role in such cases than previously granted by legal precedent.

If the Supreme Court accepts Ottawa's arguments, it will mark the first substantive limits on governments' use of the notwithstanding clause to override the rights of Canadians since the Charter of Rights and Freedoms was enacted in 1982.

The federal government detailed its arguments in a legal filing at the Supreme Court on Wednesday as part of the landmark case on Quebec's secularism law, Bill 21.

Ottawa argued that courts should be able to declare rights have been violated, even if the notwithstanding clause means a law cannot be struck down. It also proposed judicial review of longer-term use of the notwithstanding clause, arguing that prolonged use that prevents people from exercising rights is equivalent to denying those rights.

Ottawa, provinces set to file arguments in landmark Supreme Court case over Quebec's secularism law

The filing propels Ottawa toward a clash with the provinces, including Quebec, Ontario and Alberta, on core constitutional questions. Quebec has said its political autonomy is at stake. Ontario and Alberta, in filings to the top court on Wednesday, supported Quebec and backed unrestricted use of the notwithstanding clause.

In 2019, Quebec used the notwithstanding clause to shield Bill 21, legislation that aimed to promote secularism in the province, from court challenges. The law bars public-service workers, including teachers and police, from wearing religious symbols such as crosses and hijabs on the job. The law upended the lives of numerous Quebeckers and is widely seen as a violation of freedom of religion.

A Supreme Court hearing on Bill 21, which has not yet been scheduled, will be the first time in almost four decades that the top court conducts an in-depth adjudication of the notwithstanding clause. A 1988 Supreme Court precedent generally endorsed governments' unfettered use of the clause.

The notwithstanding clause can be invoked to shield legislation for up to a five-year period, at which point it must be re-enacted. The Charter's Section 33 doesn't indicate limits on such re-enactments. Quebec renewed the clause last year for Bill 21, five years after it first became law.

In its filing, Ottawa urged the Supreme Court to impose some limits, such as allowing the courts to rule on whether continual use of the notwithstanding clause by a government results in an "irreparable impairment" of Canadians' rights. Ottawa didn't prescribe a precise limit but said continual use of the clause "would amount to indirectly amending the Constitution."
"The prolonged impossibility of exercising a right or freedom would, in practice, be tantamount to denying its very existence," the federal government argued in its Supreme Court filing.

Ottawa also wants the Supreme Court to grant lower courts the power to declare constitutional rights have been violated by a law protected by the notwithstanding clause, even if the clause keeps the law in force.

The federal Liberal government's official legal position is less forceful than what it had expressed in recent years, when top party leaders argued against pre-emptive use of the notwithstanding clause. Prime Minister Mark Carney, speaking last March on the federal election campaign trail, said he had "a problem" with pre-emptive use.

Ottawa's filing on Wednesday avoided that controversial issue, which would have marked a more direct confrontation with the provinces. Quebec in 2019 pre-emptively used the notwithstanding clause in Bill 21 before there were court challenges.

The federal government is an intervenor at the Supreme Court in the Bill 21 case rather than one of the main parties. Five provinces are also intervenors, as well as dozens of other groups.

There are many constitutional legal questions in play, such as Charter rights for minority language education and gender equality, but a central legal issue is the notwithstanding clause.

Bill 21 was twice upheld in the lower courts in Quebec and the Supreme Court agreed to hear the case in January. Six groups of appellants earlier this year filed an array of arguments against Bill 21, but Quebec in August countered that there is no legal basis to overturn long-standing Supreme Court precedent.

Wednesday was the deadline for most of the remaining legal filings that are part of the Bill 21 case.
The eventual Supreme Court ruling on Bill 21 will reverberate politically for years to come, as it shapes the division of powers between the judicial and legislative branches of government.

In the early 1980s, when Canada patriated the Constitution from Britain, the Charter's notwithstanding clause was an essential compromise to get the deal done. Provinces at the time sought to ensure legislators' powers as the Charter handed courts a greater ambit to strike down laws.

Manitoba, in a Bill 21 legal filing on Tuesday, supported Ottawa's position that asserted courts should be able to declare a rights violation on a law that uses the notwithstanding clause. Manitoba called this a "dialogue between the judicial and legislative branches of government."

British Columbia in its filing on Wednesday also backed judicial declarations and pointed to "profound implications for minority rights and religious freedom" in the Bill 21 case. But, in general, B.C. and Manitoba did not support other restrictions on the notwithstanding clause.

Ontario, Alberta and Saskatchewan, in their legal filings to the Supreme Court on Wednesday, fully stood alongside Quebec and are against any restrictions or judicial declarations.

The filing by Ontario said the province "does not support Quebec's decision to require citizens to remove religious symbols to serve the public" but concluded "that is a decision for [Quebec's] National Assembly, and ultimately the voters of Quebec, to make for themselves."

Alberta is against "any form of substantive judicial review" of governments' use of the notwithstanding clause and told the Supreme Court that "creative arguments" that call for restrictions "should be rejected." Saskatchewan said some political choices are "reserved to democratic institutions rather than the courts."

[crazy canuck]

Yep, I have discussed thus case here in the past. I was surprised the SCC grated leave for the appeal to be heard.

I really hope it is just so they can clarify the clause means exactly what it says.  But I fear the court is going to do something funky with Charter Values reasoning to read the clause down.

[crazy canuck]

I have read the Feds factum - some inside baseball type law stuff to follow.  Feel free to skip.

Some background - the Notwithstanding clause exists because without it there would have been no agreement from the Provinces* to create the Charter of Rights and Freedoms.  It was the essential compromise balancing parliamentary/legislative supremacy with the new constitutional rights enshrined in the Charter.

How it works in practice - if the Notwithstanding Clause is used, it is invoked for a particular piece of legislation and often even more narrowly applied to particular sections of legislation.  The effect of invoking the Notwithstanding Clause is that the protected legislation cannot be reviewed by a Court to determine if it breached a provision of the Charter. If the Notwithstanding Clause is not invoked then legislation can be reviewed by the Court using what is known as the Oakes Test.

It is time limited - The Notwithstanding Clause is not a one and done act. The protection from Charter review is time limited and if the Notwithstanding Clause does not continue to be invoked (every 5 years) then the protection lapses, and the Court may now review the legislation using a Charter analysis.  The rationale for this is that successive governments (5 years is beyond the term of any one government) have to make the political decision to protect the legislation from Charter scrutiny.   

What is the Oakes Test - I am going to summarize a year long constitutional law course into a couple of lines here so be understanding.  It's a two part test. First, the court determines if there was a breach of a Charter right.  If the answer is no, that is the end of the analysis.  If the answer is yes, the Court goes on to determine if the restriction of the right is justified in a free and democratic society.  I won't describe this part of the test - that is where most of the year long course is spent.

What is the issue before the SCC - The Feds are taking a very controversial position that upends our constitutional norms. They say that if the notwithstanding clause is invoked, the Court should still be able to conduct the first branch of the Oakes test to determine whether the legislation breaches a Charter right, and (here is the really controversial bit) if a the legislation does breach a Charter right the Court may then conduct a judicial review to determine whether the decision to invoke the Notwithstanding Clause was reasonable.

Judicial Review and the reasonableness standard - This is also a year long course, so again be understanding that this is a brief summary. On judicial review the court does not ask itself whether it thinks the result of the decision is reasonable (this is what used to also happen under US law and you may remember JR and I talking about the USSC changing that test), rather it looks to see if the decision maker's reasons for making their decision are reasonable.

If you read this far, here is the payoff.  If the Feds get their way what will happen is the reasonableness of the decision to invoke the Notwithstanding clause will be scrutinized by a Court looking to see if the government has provided a reasonable justification for engaging in a Charter breach.  And that sounds an awful lot like the second branch of the Oakes test.

The tldr - if the federal government position succeeds, the Notwithstanding Clause will collapse into government having to justify breaching the Charter, and the fundamental constitutional compromise that was made to create the Charter will be undermined.

*Not Quebec, but that is a whole other topic. 

[Grey Fox]

If the federal government does get it's way, I can foresee a great reduction in the Federal government's power over the provinces.

Quebec already barely cares about the intricasies of federal power, if the Federal starts using a stick instead of honey, public opinion will turn quickly against it.