[Canada] Canadian Politics Redux

[Jacob]

The problem is, ahead of the vote Scheer essentially made the point you did, and it was still a close vote.

And apparently they still put in "no Canadian foreign aid money for anything that touches abortion" into their manifesto which isn't splendid.

[Camerus]

As long as they leave abortion legal, but don't require Canadians to violate conscience by signing pledges attesting they believe in abortions in order to get public funding, it's still an improvement in the quality of our democracy.

[Jacob]

As long as they leave abortion legal, but don't require Canadians to violate conscience by signing pledges attesting they believe in abortions in order to get public funding, it's still an improvement in the quality of our democracy.

Is access to abortion based on Charter Rights in Canada?

Because if it is - then great. And yeah, Charter Rights are fundamental to our democracy so yeah, if you don't accept them then there's a significant problem.

Conversely, if access to abortion is not a Charter Right well then there's no requirement to sign any such pledge and the whole talking point is insubstantial spin.

Though I would've thought that the whole "you have to accept the fundamental foundations of our democratic nation no matter what" would generally find favour with Conservatives.

Does this mean, then, that Canadian Conservatives are opposed to our fundamental Charter Rights?

[crazy canuck]

All laws are subject to Charter scrutiny so I am not sure where you are going with your post Jacob.  In answer to what I think you might be asking it would be possible to draft a law restricting abortion on some basis, for example late term abortions.  Also, governments may use the Notwithstanding Clause anytime they wish.  That is also an important part of our democracy.

For all those reasons access to abortion is a political issue and not a legal issue and always will be.  The fact that our version of Roe v Wade can be overturned by Parliament is one of the reasons our judiciary is less politicized than  our friends to the South.

[Barrister]

Does this mean, then, that Canadian Conservatives are opposed to our fundamental Charter Rights?

Abortion is NOT a Charter right.  This was established in the Morgentaler decision.  It's a complicated decision.  It certainly says that you can't just ban abortion without regard to a woman's needs, but it's equally clear that an unfettered right to abortion on demand is not required under the Charter.

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/288/index.do

[Jacob]

All laws are subject to Charter scrutiny so I am not sure where you are going with your post Jacob.

I was assuming that Camerus' post was referring to this recent Conservative resolution and talking point, and seeking to understand the factual/ legal basis:

Delegates also adopted a proposal to reverse the current Liberal government's demand that would-be employers of summer students sign an attestation form affirming their support for Charter rights — which has been interpreted to include access to abortion — before they can qualify for federal funds to help cover wages.

"The Conservative Party believes that it is unethical and wrong to require applicants for government-funded programs to sign a values test attestation endorsing government ideology in order to be eligible to receive government funding," the successful resolution states.

Source: https://www.cbc.ca/news/politics/tasker-conservative-policy-convention-1.4798918

While I am a little puzzled by the government making a connection between funding summer jobs and Charter rights, I nonetheless found it curious that Charter Rights were being cast as "government ideology" by the delegates at the Conservative convention.

Abortion is NOT a Charter right.  This was established in the Morgentaler decision.  It's a complicated decision.  It certainly says that you can't just ban abortion without regard to a woman's needs, but it's equally clear that an unfettered right to abortion on demand is not required under the Charter.

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/288/index.do

Cool. In that case it seems that the Conservative delegates - and Camerus* - are seeing pro-abortion measures where they don't exist (since affirming Charter Rights has no bearing on abortion. It's a little disappointing that the Conservative party thinks there are political points to be made in taking a stance in conflating "Charter rights" and "Liberal government ideology." I'd hate to see Charter rights becoming a partisan issue.

*Unless, of course, Camerus is referring to something else in which case my comments only apply to the Conservative delegates and thought leaders who pushed the resolution.

[crazy canuck]

Jacob, it is no secret that the Liberal's requirement that employers agree to abide by "Charter Rights" is code for being pro choice.  The article you linked mentions that in the same paragraph discussing the resolution in question.  The Liberals are playing a rhetorical game with that phrase and it undermines the meaning of a Charter Right.

As I stated in my post, the policy decision not to legislate a restriction on abortions has nothing to do with the Charter.  It would be possible to restrict access to abortion in a manner that complies with the Charter.

I am strongly pro choice but I am concerned by the Liberal mischaracterization of the law on this point.  It as if they want Canadians to ignore the fact that unregulated access to abortion is a political choice.  But more disturbing they were overly broad in their restrictions on summer job funding.  Not far removed from having a Ministry of Truth determining if an organization is sufficiently ideologically compliant to receive government support.  It is a dangerous precedent.

[Barrister]

Increasingly I agree with CC on fewer and fewer issues, but on this he has it right.  The Libs have long been using abortion as a US-inspired culture war wedge issue (Conservatives have done the same on other issues), but in doing so have attempted to wrap themselves in the Charter of Rights, even though it is an ill-fitting cloak.

And after all, in a democracy there is no need that one personally agree with the Charter of Rights.  One can validly support amending the Charter, for example.  The Charter itself only binds governments, not individuals.  All that we require is that politicians (and public servants) must abide by the Charter, even if they disagree with it, until and unless it might someday be amended.

[crazy canuck]

All that we require is that politicians (and public servants) must abide by the Charter, even if they disagree with it, until and unless it might someday be amended.

I think you are conflating the Charter with the Constitution.  An important mechanism in our Constitution is the Notwithstanding Clause which can only operate properly if politicians and the public servants who advise them properly consider when it might be appropriate to invoke that clause in legislation or after a SCC ruling.

edit: I think it is important that we do not go the way of the US where significant legal rights depend on the particular make up of their Supreme Court.  Our Charter was designed so that Parliament would have the last word on essentially political issues.  We could debate whether it should be used in particular circumstances but I don't think it is appropriate to read it out entirely.

[Barrister]

All that we require is that politicians (and public servants) must abide by the Charter, even if they disagree with it, until and unless it might someday be amended.

I think you are conflating the Charter with the Constitution.  An important mechanism in our Constitution is the Notwithstanding Clause which can only operate properly if politicians and the public servants who advise them properly consider when it might be appropriate to invoke that clause in legislation or after a SCC ruling.

edit: I think it is important that we do not go the way of the US where significant legal rights depend on the particular make up of their Supreme Court.  Our Charter was designed so that Parliament would have the last word on essentially political issues.  We could debate whether it should be used in particular circumstances but I don't think it is appropriate to read it out entirely.

I admire your way of thinking but that ship has sailed.  The SCC has read in any number of legal rights to groups based on "analogous grounds", even when including those groups was expressly declined by the drafters of the 1982 Constitution.  The Notwithstanding clause is politically radioactive, and is unlikely to ever be used absent substantially unpopular over-reach by the SCC.

[Jacob]

Okay, fair enough - thanks for the clarification. Camerus was making a reasonable point.

[crazy canuck]

The Trans Mountain reasons are an interesting read.  On the administrative law issues, the Federal Court found no breach of procedural fairness in the NEB process.  That is where the non First Nations Petitioners spent a lot of their effort and the Court rejected all those submissions.  But where the NEB went wrong is that it curtailed its own statutory mandate by not considering the impact of increased tanker traffic.  As I posted earlier, I thought that was an odd approach for KM to take because I thought they had good evidence on that point that they had to adduce for other purposes in any event.   

The First Nation consultation findings are interesting too.  Ironically under the Conservatives the duty to consult was observed, but things did not proceed as they should have under the Liberal's watch (the stage III consultations).  And now we, the tax payers, get to give KM 4.5 billion or so for a project that is probably years away from again putting shovels in the ground - if at all.   Wonderful.  Again, why this government thought it was good public policy to take over all the risk from a multinational based in Houston, is hard to fathom.

[PRC]

Doug Ford threatens to use notwithstanding clause to fire half of Toronto's city council after being blocked by a judge. 

https://www.cbc.ca/news/canada/toronto/judge-ruling-city-council-bill-election-1.4816664

Premier Doug Ford threatens to use notwithstanding clause to cut size of Toronto city council

John Rieti · CBC News · Posted: Sep 10, 2018 4:00 AM ET

Ontario Premier Doug Ford is threatening to use the notwithstanding clause to override a judge's decision that blocks his government from slashing the size of Toronto city council nearly in half.

The dramatic step would make Ford the first Ontario premier to ever use the clause, which allows government to create laws that operate in spite of certain charter rights that the laws appear to violate. He also threatened to use the clause again in the future, but didn't provide any specifics.

"We're taking a stand," Ford told reporters at a 2 p.m. news conference.

"The result is unacceptable."

In an unprecedented and scathing decision, Justice Edward Belobaba ruled Monday that Ford's Progressive Conservative government "clearly crossed the line" with its Better Local Government Act, which aligns municipal ward boundaries with provincial ridings, cutting the potential number of councillors from 47 to 25 after the Oct. 22 election.

In his highly anticipated ruling, Belobaba calls the act "unconstitutional."

"Passing a law that changes the city's electoral districts in the middle of its election and undermines the overall fairness of the election is antithetical to the core principles of our democracy," Belobaba says in his written decision.

Ford's government made the shocking move to upend Toronto's election plans this summer, months after candidates had already started filing nomination papers in a 47-ward system.

At city hall, Mayor John Tory welcomed the judge's decision.

"You can't change the rules in the middle of the game. That's not fair to anyone, and this is not a game," he said.

Now, Tory, who is seeking re-election this fall, says he wants answers from the province about why it tried to cut the size of council to begin with.

"Democracy does not belong to a few of us, it belongs to all of us," he said. "No law should ever fail to take that into account and all of us as lawmakers, regardless of where we're carrying out those responsibilities, should always remember that."

Toronto city council, which supported redrawing the ward boundary map to add more councillors after a years-long consultation process, voted to condemn Ford's plans, and then to join the court challenge — although some councillors supported the premier.

The city clerk's office, which had rearranged the municipal election process based on the Better Local Government Act, will now start preparing to hold an election with 47 wards, the city confirmed in a news release, with advance voting starting on Oct. 10.

Candidates who had filed nominations before July 27, the original deadline, will be allowed to run.

Belobaba says the act has two major problems:

Because it was passed in the middle of an election campaign, it breached the freedom of expression of municipal candidates.
For some councillors, it nearly doubled the size of the population they represent — from an average of 61,000 people per ward to almost 111,000. That, Belobaba says, "breached the municipal voter's right to cast a vote that can result in effective representation.

At one point in the decision, Belobaba highlights a number of questions about why the province has decided 25 wards is the way to go.

"If there was a concern about the large size of some of the city's wards (by my count, six wards had populations ranging from 70,000 to 97,000), why not deal with these six wards specifically? Why impose a solution (increasing all ward sizes to 111,000) that is far worse, in terms of achieving effective representation, than the original problem? And, again, why do so in the middle of the city's election?"

The province's response, Belobaba writes: "Crickets."

Tory said that was an "extraordinary" thing to see in a judge's ruling, adding the province needs to answer those questions if it tries again to reduce the number of councillors.

Rocco Achampong, a lawyer planning to run in the upcoming election who became the first to challenge the government's plan in court, tweeted simply: "We Win!"

A number of other plaintiffs, including city lawyers, joined Achampong's legal challenge, despite the fact many legal experts expected the province to prevail in court.

Coun. Josh Matlow tweeted after the decision: "We took a stand for democracy and justice. And we won."

Downtown Coun. Kristyn Wong-Tam said she's delighted with the ruling, and urged Ford to respect it.

"The province will have a very uphill battle on the appeal process," Wong-Tam told CBC Radio's Metro Morning.

Not everyone agrees.

The Canadian Taxpayers Federation, an intervener in the case that was supporting the government, issued a statement expressing disappointment with the decision.

"We encourage the Ford government to appeal this decision immediately," the organization said. "Waiting an additional four years to reduce the size of city council is a missed opportunity to save taxpayers money."

Coun. Jim Karygiannis, a proponent of the province's plan, said this decision "throws a monkey wrench in the works" of the election, again.​ He said the timing of Ford's proposed council cut was "probably not appropriate," but he still believes the province has the right to do it.

Ford, who served one term on city council representing the Etobicoke area and brother of the late former mayor Rob Ford, said cutting the number of councillors would stop what he calls "dysfunction" at Toronto City Hall.

He also claimed it would save the city $25 million over four years.

Belobaba's decision notes the province can try to reduce the size of city council again in the future, but says October's election should go ahead as planned.

The Better Local Government Act didn't affect the number of councillors in any other Ontario city.

Also known as Bill 5, the legislation also cancelled planned elections for the head of council position in the regional municipalities of Muskoka, Peel, York and Niagara, turning them into appointed roles. Belobaba said his ruling does not impact that aspect of the bill.

[Barrister]

Really not sure how the Charter becomes involved in deciding how many members should be on Toronto's city counsel.  Sure, the election is set for next month - but the legislation was passed a couple of months ago.  And in particular I don't see how a judge can assess how many voters can be in a riding in order to constitute "effective representation".  That sounds a whole lot like a policy decision that should be left up to the politicians.

But yes, this whole endeavour comes across as petty by Ford.  And his threat to use the notwithstanding clause seems childish - he does know there's no way he'll be able to pass new legislation invoking Notwithstanding clause in time, right?  And he does know nobody's used the damn thing in over 30 years?

I'm afraid the old maxim of "bad facts make bad law" has struck again.

[Oexmelin]

Ford acts on the threat.

https://www.theglobeandmail.com/canada/toronto/article-judge-rules-against-fords-move-to-cut-toronto-council/

Also:

"The Premier said he would use the notwithstanding clause, never before invoked in Ontario, to go ahead with his plan to cut city council down to 25 wards from 47, even in the middle of a municipal election. And he warned he could use the clause again, on other issues. "

I believe the notwithstanding clause has a role to play. I agree with BB that the whole issue of municipal council ought to be left to politics, not justice. But the undercurrent that animates Ford is one that undermines both justice AND politics, one that sees it as a "winner takes it all" proposition. We see where that leads.