Human Rights Hypocrisy

 

Justin Trudeau is slamming Pierre Poilievre in the Commons for failing to condemn Doug Ford’s use of the notwithstanding clause to force Ontario teachers back to work after years of school closures over Covid. This, according to Trudeau, is an assault on charter rights.

Trudeau is vulnerable to the charge of hypocrisy, as he recently suspended all Canadians’ charter rights by declaring the Emergency Act. He has also failed to object to the use of the notwithstanding clause by the government of Quebec. So his sudden selective concern for human rights is obviously political and insincere.

But is Poilievre also being disingenuous? Should he be condemning Ford, as he did Trudeau, for suspending human rights?

First, it does not seem to be a federal politician’s business to criticize the provinces on what they do in their own jurisdiction. In Canada, doing so could provoke a constitutional crisis. Which is why nobody goes after Quebec for using the notwithstanding clause.

Second, the notwithstanding clause is a part of the Canadian Constitution. It makes no sense to simply object to its ever being used—why is it there? The question is whether it is justified in this case. The same question applies to use of the Emergency Act. There is a need for an Emergency Act--for emergencies. The question is whether there was an emergency.

I submit that Ford is using the notwithstanding clause as intended. Trudeau used the Emergencies Act illegitimately.

By the definition given in the statute, there was no emergency when Trudeau invoked the Act. That makes it an illegal action.

But Ford’s use of the notwithstanding clause is necessitated by judicial overreach. This is why it exists, to ensure the continued supremacy of parliament and the will of the people over a possible cabal of judges.

In recent years, Canadian courts have grown increasingly irresponsible and autocratic, abrogating to themselves legislative power. In the present case, they ruled a few years ago that workers had a right to strike that prevented governments from forcing them back to work in any circumstances, even for essential services.

This cannot be allowed in an orderly and civil society. It means those in essential services can force whatever deal they choose on the public. It gives them dictatorial powers.

Accordingly, Ford must use the notwithstanding clause.

Given the current Canadian situation in general, a more aggressive use of the notwithstanding clause is long overdue. Just as stronger restrictions on invoking the Emergencies Act are clearly required—ideally, specific penalties for any government using it improperly.

Really, in a just and ordered society, Trudeau shoud be behind bars.

Doug Ford Seizes Dictatorial Powers? Not.

 

A Ford, but perhaps not a Lincoln.

Some express alarm at Ontario Premier Doug Ford’s declared intent to invoke the “notwithstanding clause“ of the Canadian Constitution in order to override charter rights and allow legislation to limit campaign spending by third parties. I think it is a great idea. Even though I do not feel great about limiting campaign spending by third parties.

A bit of background here: the Canadian Constitution guarantees certain rights and freedoms. The courts can disallow legislation it feels is in violation of these. The legislature can respond by invoking this “notwithstanding clause” and overrule the courts. The legislation goes into effect, but must be renewed every five years.

Critics are objecting that Ford wants to override the Constitution. This is exactly the opposite of the truth: he is invoking the Constitution as written and as intended.

Traditionally, iin the Westminster system, Parliament is the “highest court in the land,” on the premise that the people are sovereign. Giving any court the ability to overrule the people’s representatives risks giving government itself to an oligarchy: those who appoint the Supreme Court justices, the legal profession and its gatekeepers, the professions and the professional classes. Some of the framers of the Canadian Constitution Act, notably Allan Blakeney, insisted on the notwithstanding clause to protect democracy.

It is important to know that a body of skilled lawyers have examined some legislation in detail, and say it is in violation of charter rights. This is helpful information for the public. If the government persists notwithstanding, they can decide to punish the government accordingly at the next election. But we must not surrender the people’s right to make that decision.

And time has proven the framers exactly right. Down in the US, it has come to be expected that Democrat-appointed judges and Republican-appointed judges will vote not according to the Constitution as written, but by party line. And they have become increasingly activist in disallowing legislation.

In Canada, it is worse. The Canadian Supreme Court is appealed to more easily and often. It has not only developed a habit of disallowing legislation but of demanding legislation be passed. And their rulings produce major social changes, without public accountability. They required Alberta to insert a reference to homosexual rights in their proposed provincial charter of rights. They struck down all limitations on abortion. They required the legalization of gay marriage; they redefined aboriginal rights, redefined who is an aboriginal, and on and on. They have developed a dangerous taste for power.

It matters little whether one agrees with this or that ruling, or them all. The power is arbitrary and capricious, and there is no reason to expect it will forever be used in the public interest.

Luckily, unlike the US, Canada has a constitutional remedy in the notwithstanding clause. The only problem has been, until now, a lack of courage among our elected politicians in invoking it. Quebec has used it regularly, but in the rest of Canada, only Saskatchewan, and only once. Doug Ford does us all a favour, and our grandchildren, if he further cements the precedent.

Notwithstanding

Allan Blakeney.

Doug Ford is planning to use the Canadian Constitution's “notwithstanding clause” to override a court that seeks to block his plan to reduce the size of Toronto City Council.

I see a bunch of people online protesting this “unconstitutional” action, which violates “the Charter of Rights and Freedoms.”

Whether or not you agree with Ford's action, it is simply wrong to call it “unconstitutional.” He is invoking a clause of the constitution. The constitution is not unconstitutional, by definition.

Is he violating the Charter of Rights and Freedoms? Yes, in the opinion of a judge. But isn't there a real-life possibility the judge is wrong? I hear everyone in the know was surprised by the ruling; they did not think there was a legitimate charter case here. After all, how is reducing the size of a city council a violation of anyone's free speech? Can anyone really justify that claim?

Beware. If rights can come to mean whatever a judge says they mean, then they mean nothing. They are gone.

And if the courts cannot be counted on to protect our rights, the legislature must step in.

Many argue that the issue is not important enough to justify invoking the notwithstanding clause. I agree that the issue is not important. But I think it is important for some government to invoke the notwithstanding clause for its own sake. Probably best to do it on an issue not itself too big and controversial, not too fraught with partisan concerns, in order to normalize the practice without causing any real crisis. If the judiciary has gotten out of control in general, and has been appropriating to itself the duties of the legislature, this is exactly what is needed: a clear shot across the bow. Without anyone getting seriously hurt.

And I think that is exactly what has been happening, in dramatic fashion. The Canadian courts have been out of control. An obvious recent example is a court's disallowance of the Kinder Morgan/Transmountain pipeline, at catastrophic taxpayer expense. The judges need to be reined in, and the job of legislating returned to the legislatures. There has been a pileup of terrible decisions and precedents now, that without resort to the notwithstanding clause, will haunt us forever. Because judges cannot bear not to be in control, and always want to make historic rulings that go into the law books and change everything.

That's the point of the “notwithstanding clause.” To prevent this. That is exactly why Allan Blakeney fought for its inclusion in the Constitution.

Now's the time, and well past the time. Ford does us all a great service.

Conrad Black Speaks True

Agree on all points with Conrad Black here.  

Some day there should be public statues of Brad Wall, Lynn Beyak and Ezra Levant.

Hey, I know! Let's rename the Langevin Block the Beyak Block!

Notwithstanding My Huge Respect for Andrew Coyne...

I generally worship at the feet of Andrew Coyne. He almost never resorts to name-calling or prejudicial language, but makes his cases purely on their merits. He is fair to the opposing viewpoint. But that is not to say he is never wrong.

He is wrong now. He has just written a column objecting to the Notwithstanding Clause in the Canadian constitution. The Notwithstanding Clause allows Canadian legislatures to pass legislation that is invulnerable to court challenge on grounds of the Canadian Charter of Rights and Freedoms. As a further check, any such exemption must be renewed by new legislation every five years.

“Why,” he asks, “is there such a ready market for invoking the notwithstanding clause, by means of which governments are permitted to suspend the rights guaranteed in the Charter, on the sole proviso that they declare openly they are doing so?”

I don’t see his objection at all. Firstly, there is certainly no “ready market” here. Since the Notwithstanding Clause was inserted in the Canadian constitution in 1982, it has only been used by two provincial legislatures. It has never been used by the federal government. Of the two provinces, it was used only once by Saskatchewan, and unnecessarily: the legislation, it turned out, conformed with the Charter anyway. It was used as a matter of course, and of protest, by the PQ government in Quebec for its first few years, but then abandoned. It was attempted once more since, later, by a Quebec government, but they backed down in the face of public protest.

So it is hardly being overused. Why should we not want to preserve it, then, as a constitutional escape valve in case of need? This seems especially necessary because the Canadian constitution is exceptionally difficult to amend.

Removing the notwithstanding clause gives the courts dictatorial powers. They are simply on their honour, as professionals, not to abuse it. This gives me pause.

It is not so much, as Coyne claims, a question of allowing the legislature to suspend charter rights, as allowing them to overrule a rogue court judgment they feel does not itself conform to the charter. Surely Coyne cannot suppose this to be impossible? Judges are not infallible.

Do we need the courts to be supreme over the legislature? Why? They have never been so in Britain, and Britain has a reputation for preserving human rights as good as Canada’s.

It seems to me that having a formal constitutional guarantee of rights is never itself of much real value. The old Soviet Union had an exemplary constitutional bill of rights, as does Communist China. It all really boils down in the end to the will of those in charge. They can twist the words any way they want; that is a historical truth. Who would have suspected two hundred years ago that a right to gay marriage was in the US Constitution?

So it is really a matter of who we trust more to protect our real, God-given rights: a small group of learned professionals, or the general popular will?

It seems to me that the current “Notwithstanding Clause” is a nearly perfect solution: the courts place a check on the popular will, and their prestige counts for something, but ultimately, the popular will can place a check on the courts as well.