I tend to try to write concisely. This has its flaws - sometimes I express complex ideas in succinct terms if they do not seem that relevant to the discussion. This may mean statements lack nuance. Still, this does not mean one can read anything into them.
I understand the Canadian Constitution includes many acts, which might include the Magna Carta, Royal Proclimation of 1763, Quebec Act, the Act of Union, the British North America Act and all the associated case law. Did I say the Charter comprised the whole Constitution? I did not. I know it is not so. This stuff is not material to a discussion of Notwithstanding. Let us not discuss s. 52 which tosses everything not concordant with the current Zeitgeist.
I’ve lived out West. I’m not dismissive of the Western provinces. Where did I say they lacked legitimacy or should be unequal powers? They are not unequal. I did not imply anything of the sort. A false gallop of verses.
I do not love s. 33 and acknowledge difficulties in passing good legislation. My understanding was in addition to traditional federal-provincial concerns, there was also concern about judicial activism and a need for an escape valve in the event of overreach. I do not think an escape valve is a bad idea in of itself (regardless of whether the judges were elected or not). But part of the answer is why there are appeal courts. I do not see why it has to be “all or nothing”, and other mechanisms may offer more balance. Are the rights of all Quebeckers currently protected to Charter standards? What mechanisms exist to gradually correct this if it is not the case?
The problem with an at will derogatory Clause is that the rights it may deny - fundamental rights, equality rights and legal rights - are hardly trivial, but a major part of the Act’s raison d’etre. If it turns out that the will becomes a whim than perhaps I will still be permitted to personally feel that all Canadians deserve better and more consistent protection.
You’re creating a straw man here, since obviously there have to be limits somewhere even in the strictest possible concept of absolutism. The point is that the US Supreme Court’s interpretation of Constitutional rights has time and time again hewed much closer to no-exception absolutism than would ever be acceptable in Canada. There are literally thousands of examples, but just to cite two, RAV v. City of St. Paul, and the complete inability to do anything about the hateful demonstrations of the Westboro Baptist “Church”, whose leader, Fred Phelps, was a master at exploiting Constitutional absolutism to enable his hate crimes. In Canada both of those cases would have been prosecuted and convicted as hate speech.
Perhaps it was not the best word, but you are reading far too much into it. Especially after implying that constitutional politics is the art of compromise. I never said the West did not have the right to their views or did not have agency to express them however they wished.
One of the most fundamental issues that anyone involved in constitution-making has to address is this: When is it appropriate for a small group of unelected officials to override the popular will of a democratically elected government? That is one of the most important principles that constitution-makers have to grapple with.
Peter Lougheed and Alan Blakeney were two of the smartest, most principled, and most intellectual politicians of late 20th century Canada. They thought long and hard about this very issue. Section 33 was their solution, to balance popular sovereignty with judical review. Having that solution dismissed in such a condescending way as a “sop” for those whiny westerners is extremely disprespectful.
Not condescending nor disrespectful. A sop now means “something to help pacify” and is similar to a concession or compromise, both better words. I think it is clear that a derogatory clause is not a piece of bread. I do not use the phrase “rule of thumb” but would not make too many assumptions about someone who used it one time.
Still, my word may have been badly chosen and I apologize for any incorrect impressions given.
When Macdonald went to London for Confederation in 1867, did not the Nova Scotia premier also go to personally tell the Queen he wanted no part of this chimera? No doubt constitutional politics is always difficult and involves compromise. This is why John A should be judged in totality.
I am sure many talented lawyers debate many laws. Over time, laws become better defined and the weaknesses more obvious. I guess that can make it easy to forget about the relative strengths. No doubt people disagree on what the strengths and weaknesses are.
Phelps could simply argue his statements have not resulted in a breach of the peace (necessary for 319(1)) and are rooted in religious belief (an exemption to 319(2)), thus getting around the law. I mean, as you point out, the guy is clever about making sure he stays precisely within the law.
OK, an automatic sunset is a meaningful restriction. But you’ll forgive me if, as an American living in this day and age, I don’t consider “but it would be politically unpalatable to do so” to be a meaningful restriction.
I think on the whole Canadian laws are reasonably good. A few of them are outdated and strain to apply to current advances. Some of them seem very hard to use in practice even after profound abuses. A surprising number seem to have hardly been tested. I know very few people who think the system functions in an ideal way. These people understand the system. It is fair to emphasize that I do not.
The fact I question Notwithstanding does not make it bad nor unreasonable, of course, but the best defence for it seems largely rooted in “compromise” instead of “consequences”.
Because the Charter is worth defending, in my view. Including the fundamental, legal and equality sections. No doubt hundreds of important cases invoked it. It is saddening some progress can be revoked at will. It is maddening if it becomes normal to revoke it at whim.
And this is, of course, both the greatest strength and biggest weakness of the whole system. Ultimately, the electorate has the power to decide which of the “notwithstanding” exceptions are acceptable, by either re-electing the party that enacted the exception, or throwing the bums out.
But as we’ve seen, that’s true even in the US. Ultimately any political system only works if the people with the power to fix things choose to act on that power. No matter how theoretically perfect your system is, if the people charged with implementing it simply decide to not do their jobs, the system breaks down. That’s a problem with no simple solution. You just have to do the work to get enough people to care enough - and we’ve seen how hard that it.
That’s a very interesting and important point. I should also mention that as far as I know, judges in Canada, even in provincial courts, are chosen by the federal government. (Or am I wrong about this? I know it’s the case at least for judges on Quebec’s superior court.) So this gives the federal government power over laws passed by the provincial legislatures, even if we exclude the explicit power of disallowance that I believe the federal parliament still does have (but hasn’t exercised in more than a century). Given this, I can see why the premiers wanted to maintain a way to pass important legislation that might run afoul of the federal government’s plans.
I do have another question about this. It seems to me that giving this power to unelected judges could have had the effect of politicizing the courts in the manner that we see in the United States. Now, while some may say that “the supreme court is like the tower of Pisa: it always leans the same way”, the courts in Canada still don’t seem to have been politicized to the same extent. I mean, I couldn’t tell you how many “liberal” and “conservative” judges sit on the Canadian supreme court. Do you have an idea why things didn’t unfold in Canada the way they did in the US?
Everybody knows that only the opinions of Ontario Liberals count. See, since Doug Ford’s government and the Quebec National Assembly have used the notwithstanding clause in ways Ontario Liberals disagree with, that means we should now get rid of it.
I tend to agree with @RickJay that Trudeau may not be the brightest politician there is, but if you’re talking about Quebec’s enshrining French as its official language in its own constitution as per the amendment process of article 45 of the constitution law of 1982, Trudeau is in fact aware of the ramifications: from what I can tell they are entirely symbolic. In real terms, it changes absolutely nothing. So why should he make a fuss? Apparently the anglophone media in Canada has made a fuss, but essentially for political reasons as far as I can tell.
The scope of the notwithstanding clause is, as previously said, limited. If you’re concerned about specific laws, you should probably start a discussion on their merits rather than on the general derogation procedure.
Perhaps they are. Perhaps you are in a better position to judge this than I. It needs experts to determine this is so - else why bother with the changes? I agree Trudeau will not wish to make a fuss. Especially if running in Papineau this fall.
Sure, but its scope includes fundamental rights, equality rights and legal rights. Most people would consider these pretty important.
I’m rather fond of The Canadian Encyclopedia. My version is from 2000, wish they’d update it. It lists a small selection of landmark cases between 1984 and 1999, not so recent, which still include:
Quebec Bill 101 (language rights)
Bartle (right to counsel)
Big M Drugs (Sunday shopping)
Cooper (jurisdiction)
Finta (war crimes)
Genereux (judicial independence)
Godbout (privacy)
Hebert (right to silence)
Hunter Southam (search and seizure)
Keegstra (hate)
Kindler (death penalty)
Mahe (minority language rights)
Cruise Missile (executive branch bound)
Oakes (presumed innocent)
RJR McD (tobacco)
Rodriguez (assisted suicide)
Singh (fundamental, refugee rights)
Stinchcombe (evidence)
Tran (right to interpreter)
Zundel (propaganda)
Among many others. No doubt the Section eased passage of the rest. No doubt those involved were knowledgeable and dedicated. It’s still very important. Which is why trivial use of Section 33 should not become a commonality, and why there is at least a little cause for concern about how it has recently been used.
I remember reading a commented version of the Canadian charter circa 1985, and there was a mention of the notwithstanding clause being a way for a province to pass affirmative action laws, which by definition restrict the rights of some people.
Since the Charter specifically allows affirmative action laws, I do not believe the person writing that paid very close attention to it. It’s in Section 15, subsection 2.
The federal government appoints the judges of the superior courts in each province: the superior trial court and the court of appeal. Provinces appoint judges to the lower courts, such as the Cour de Québec. (The term “superior court” is not meant as a comment on the quality of the court; it’s historical terminology which we inherited from England.)
I wouold say there’s two reasons. The first is that we have a very strong tradition of non-partisan judges. We don’t elect our judges, and we don’t select them through highly partisan processes. Judges are to be as neutral as possible. They don’t comment on politics; they reduce ties to their former law firms; if they had political careers before appointment, they have to cut ties to their former political associates. I’ve heard that some judges won’t even vote. When Justice Iacobucci retired from the Supreme Court, he said that he didn’t know how (or if) most of his colleagues voted.
But the other big difference is that Canada is not a highly partisan country, unlike our neighbours to the south. In my opinion, that highly charged partisanship drives politicisation of judges. It’s different here, and that means that there isn’t the drive to polticise the judiciary. For example, when the SCC struck down Canada’s abortion law, PM Mulroney tried twice to get a replacement version passed; failed both times, and said “That’s it, I’m not wasting any more political capital on this issue.” And no government since has wanted to touch it. That’s completely different from the US, where the decision in Roe v Wade has been one of the major drivers in the partisan divides, which have made appointments to the courts such a partisan issue.
As RickJay says, s. 15(2) authorises affirmative action programs. But there was a concern that the courts could give a very broad interpretation to s. 15 and the equality provision, because it was the biggest change and the biggest unknown.
What if the courts ruled that all distinctions between the sexes were unconstitutional, such as a building code requirement for separate bathrooms in public buildings? Or struck down longer maternity leave allowances because men didn’t get maternity leave? (I’m not making up that example. The Supreme Court had earlier upheld a denial of certain unemployment insurance benefits to pregnant women, saying it wasn’t a denial of equality: Bliss v Canada (AG).)
That’s why the supporters of s. 33 at the time used the language of a “safety valve”, that the elected officials could use if they believed that the judges had badly misapplied the Charter, out of step with public values.
As an example of how different our political / judicial system is from the US, yesterday the Prime Minister announced the appointment of a new judge to the SCC. Mahmoud Jamal of the Ontario Court of Appeal will replace retiring Justice Rosalie Abella when she hits the mandatory retirement age on July 1.
The appointment was in my normal Google news feed yesterday, but it’s not in today’s news feed. Appointment of a new SCC judge is literally “yesterday’s news”, apparently.
He’ll be the first Muslim judge on the SCC; first of South Asian heritage; and first Kenyan-born SCC judge.
Just curious how many of the Canadian posters to this thread heard about it yesterday?
I read about Jamal in the paper today. Knowing nothing else, seems like a great choice. Abella also gave a fascinating interview in the most recent Macleans.
It’s in Section 15, subsection 2.