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Bugs





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PostPosted: Fri Sep 21, 2018 12:02 pm    Post subject: The [i]Notwithstanding clause[/i] -- good or bad? Reply with quote

This is a good column to use to kick-start a discussion of the 'Notwithstanding clause, which is a part of our Constitution. The article gives its history and the thinking behind it.

Quote:
OLIVER: (Not)withstanding judicial overreach is healthy for democracy
Joe Oliver
Published:
September 20, 2018

Premier Doug Ford no longer needs to invoke the notwithstanding clause in the Charter of Rights and Freedoms. The Ontario Court of Appeal stayed the lower court’s ‘dubious’ ruling overturning legislation to reduce the size of the Toronto City Council. Since Ford said he might use it in other instances and because the issue is so fundamental, it should now be discussed in a less fevered atmosphere.

The override power is not an affront to constitutional convention, nor would it “stomp on our fundamental rights” as its vociferous critics want us to believe. To the contrary, it is an assertion of government’s constitutional right to override a judge’s decision it believes has contravened the public interest. More broadly, Section 33 can redress the balance between the role of elected politicians and the judiciary in Canada’s parliamentary democracy.

The outrage about its use betrays support for usurpation by judges of the responsibility and authority of elected governments. Progressives are happy when courts make laws that mirror their ideological preferences, so they are fearful that the jig may be up.

As a condition for supporting the Charter in 1982 the provinces, led by Peter Lougheed, demanded a check on the courts’ absolute authority. They understood that power abhors a vacuum and that they could not rely on judicial restraint. What they did not anticipate is that concern about a political blowback would prevent the federal government and Ontario from ever using it, even though it has been employed over 15 times by other provinces.

We can quickly dispense with the naïve belief that constitutional reviews are inevitably based on an objective interpretation of words in a statute or the Charter.


Former Chief Justice, Beverley McLachlin made her views abundantly clear: “My job is simply…..to think about what’s best for Canadian society on this particular problem that’s before us…” She asserted that with the Charter “the law-making role of the judge has dramatically expanded” and now consists of “invading the domain of social policy, once perceived to be the exclusive right of Parliament and the legislatures.” After the judicial invasion, legislators are left to cope with the consequences of the occupation.

When the Supreme Court wants a certain result it feels free to manipulate the text beyond recognition or make out of whole cloth rules that determine Canada’s social and economic future.

Canadians support the Charter’s protection of rights and freedoms, including for minorities. However, most expect laws to be interpreted based on how they are written and do not want the Court, ensconced in its protective bubble, to be a paternalistic social engineer. It should be a balancing act, but there is no check and balance at the top other than the notwithstanding clause.

What jurists characterize as a ‘dialogue’ between the Court and the legislature has really been a soliloquy. If so, Ford just initiated a long overdue conversation. The living tree doctrine sees the Charter interpreted broadly to reflect gradually changing times. But both metaphors break down if judges insert their personal preferences and make changes at will.


Populism, which connotes support for the needs and concerns of ordinary people, emerges when politicians ignore their concerns. The same can be true of court decisions.

Because of the Charter, the Supreme Court is delving into issues where it usually has less expertise and always less direct contact with the people than elected officials. By aggressively inserting themselves into the social and economic realm the justices are no longer sacrosanct from public criticism. They should take care to protect their legitimacy. Potential use of the override power just might encourage appropriate restraint.

Joe Oliver is the former minister of finance and Chairman of Echelon Wealth Partners.
https://torontosun.com/opinion/columnists/oliver-notwithstanding-judicial-overreach-is-healthy-for-democracy


I think the mechanism has fallen into disuse, and Ford is actually providing a service by reviving it to the extent that he did. Politicians feel it is stigmatizing because it was first used to deprive English-speaking Canadians in Quebec of their common law language rights. In short, the notwithstanding clause compensates us for the loss of the common law.

It could have been used to stop same-sex marriage, which was forced on us by the Supreme Court. I think it could be used with the Transmountain Pipeline. It's more frequent use is defensible. And its use mobilizes a certain amount of public attention, which serves as a limit.

But those are only my thoughts. Any comments?
cosmostein





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PostPosted: Fri Sep 21, 2018 2:06 pm    Post subject: Reply with quote

Its rare that a nation will entrench a bill of rights into its Constitution decades after its Constitution is signed. To be clear I think that its a wonderful thing,

However, I agree with Beverley McLachlin's quote above that having the Charter within the Constitution greatly expanded the powers of the courts and allowing the Provinces a means to assure that the Charter isn't used as a means to override their role is critical.

For the all of the lashings that Premier Ford has taken in the media, the ruling he was going to override is exactly the reason the clause is in the Constitution.

The ruling that was initially made was unanimously overridden on appeal by a higher court;
As such its legally agreed that the initial decision was exactly the sort of judicial overreach the Premiers were looking to stop when they demanded the clause in 1982.

It doesn't matter if you are pro-Ford, anti-Ford, or somewhere in the large chasm between, judges overriding the clear role of Government for partisan reasons is nothing that should ever be cheered on either side of the political spectrum.
Bugs





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PostPosted: Fri Sep 21, 2018 3:27 pm    Post subject: Reply with quote

Let me put this question, not as a partisan against same-sex marriage, but just as an example ... think about how the same-sex decision was made. The Supreme Court made a decision that asked the government to produce legislation addressing the issue. The most recent legislation was a Conservative motion to define marriage as a relationship between two people of opposite sexes -- a man and a woman.

I don't know what the legal problem was. Does anyone? Was this a case of judicial overreach? It's an important question.

The Martin government rammed something through and claimed they had to do it because of the Court.

Understand, I (like most Canadians) don't want to impose any special burdens on LBQWERTY folk, but marriage is an institution meant to serve people raising families. The LGBQWERTY folk are in a different game. It seems to me to be prudent to keep those courts free of sorting out the division of property when the gay lawyer kicks his hairdresser/wife out.

It just gives an example of where it might be used.

Another case is the current pipeline stalemate. Honestly, I think this has been studied to death.

Any thoughts?
cosmostein





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PostPosted: Fri Sep 21, 2018 4:59 pm    Post subject: Reply with quote

First and Foremost;
My expectation is that the Courts allow the elected body that was elected to legislate to legislate and to return any question of ambiguity to the Government to resolve.

I don't think same sex marriage is the issue to use for overreach by the Supreme Court.

As I recall, the Provincial Courts had been issuing rulings on the matter for more than a year and in 2004 the Federal Government went to the Supreme Court with a "Reference Question" on their boundary to legislate on this issue.

(Harper did the same thing on the Senate issue, its usually done to preemptively address challenges after the legislation passes)

The Liberals than introduced legislation and it became the law of the land.

The optimist will argue that the Government was being proactive and that they were trying to get ahead of an issue that likely would have been addressed in the next year or so anyway.

The pessimist will argue that after the Liberals were reduced to a minority in 2004 and with the AdScam issue getting really bad in 2005 that this legislation became a priority in a hurry as it created a huge wedge issue with the party that was polling ahead of them

What is the actual reasoning?
No idea, and more than a decade later I wouldn't even speculate.

------------------------------------------------------------------------------------

As for the recent pipeline ruling by the Federal Court of Appeal;
This is one that I would have a hard time seeing the Supreme Court upholding.

While this is a "new" pipeline;
What tends to get lost in all of the hoopla is that its simply a second pipeline that will run mostly parallel to a pipeline that has already been operation since the early 1950s

The Trans Mountain Pipeline is already there;

Even with all the best efforts to imply that they will be slamming down a "leaky" pipeline across undisturbed and pristine landscapes the reality is there is already a "leaky" pipeline sitting there and one which is far more likely to breakdown than the new one which will be designed to handled the majority of the flow.

The argument that the NEB didn't do its due diligence would be very valid if they didn't in fact do the same due diligence that was done on Keystone XL which will likely start construction next year.

While more consultation may need to be had with the natives in terms of Environmental impact, there is nothing preventing that from occurring right now
Bugs





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PostPosted: Fri Sep 21, 2018 5:59 pm    Post subject: Reply with quote

Here's what I see in what you describe. Outside the homosexual activists, nobody even though about homosexuals getting married to their same-sex partners around 2000. Parliament passed legislation giving a legal definition of marriage shortly before.

What were the problems? If there are gay couples, property issues, and all of that can be sorted out, but it seems wrong to make a matrimonial home for two guys, particularly if there's only one paying the mortgage. How is that a good thing? In fact, it would put pressure on the present wonky settlement schemes and possibly do some rectifying, so many lawyers being gay these days.

I don't think there were any problems. It's easier. isn't it, when you only have two genders. What happens when you have the whole LGBTQWERTY group, some requiring special pronouns (now a human right in Ontario) and all of them, count on it, having special rights that need protecting.

What happens if there's a male transsexual top with a female transsexual bottom? Who gets what then? Is drug paraphernalia family property or is it private? I joke, but really, this does not end with male, female and it.

The guy on the right works for the Attorney-General, and he wrote an article in NOW magazine chiding other gay activitists for radicalism at Pride, or something like that, and he claimed that it was almost in the bag.

http://www.bloggingtories.ca/f.....ffbcdd8172

It turned out he was right. This describes the struggle that this employee of the Attorney General's office engaged in ...

Quote:
Leshner considered himself to have been in a common law marriage with Stark for 22 years.[8] After the ruling by a lower Ontario court, Leshner proposed to Stark in front of reporters.[9] The marriage then occurred after the decision Halpern v. Canada (Attorney General) by the Court of Appeal for Ontario deciding homosexuals should be allowed to marry. The Michaels afterwards became well known in their city Toronto and appeared in the 2003 gay pride parade.[10] The two even made international news.[11]
https://en.wikipedia.org/wiki/The_Michaels


How do two guys get married when the legal definition of marriage specifies that the parties in a marriage have to be of the opposite sex? It was the Court of Appeal that broke that law, from what I can see. I'd love to see why the Ontario Court of Appeal thought it would be a good idea to abandon a couple of millennia of practice.

If that isn't lawlessness on the bench, what is? What would be wrong with 'issuing some Nonetheless clause legislation when this kind of thing happens? And why not the horsewhip (symbolically speaking)?

This is exactly how human rights work. It infiltrates key elites, like judiciaries, and builds in new systems gradually. I think it's as big a threat to our liberties as anything else.
Toronto Centre





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PostPosted: Fri Sep 21, 2018 6:09 pm    Post subject: Reply with quote

Bugs wrote:
... think about how the same-sex decision was made. The Supreme Court made a decision that asked the government to produce legislation addressing the issue.

Without the back story this is more or less wrong. The SC didnt just up and make a decision. Nice try.
Quote:
The most recent legislation was a Conservative motion to define marriage as a relationship between two people of opposite sexes -- a man and a woman.

Ohh my...if only Jim Flaherty was still alive. Remember him, the PC Atty General under a Conservative prov govt?

But wait, lets keep reading....
Quote:

I don't know what the legal problem was. Does anyone? Was this a case of judicial overreach? It's an important question.

Fair question.

How can you now say "I dont know.." when you were just writing emphatically that you knew how this went down?

For the record, the short answer is many things , starting (sort of) in 1965 with a guy busted for being gay in NWT , soon after PM Trudeau relaxed the laws against homosexuals, Quebec a decade later is first to recognize gays in Human Rights...skip ahead and the CDN Human Rights Commission adds gays as protected class.
A few incidences of folks being fired for being gay keep the issue front and centre.
Kim Campbell, the PC Justice Minister tries to get sexual orientation added but also to restrict marital status to man woman, doesnt pass.
From there incremental incidences and issues creep us closer to the case of spousal benefits on a gay couple who split. It got sent to the SC to decide the issue and they saw the light and ruled discriminatory.
Note the SC didnt rule, they gave it back to Ontario to amend, they didnt paving the way.
Toronto Centre





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PostPosted: Fri Sep 21, 2018 6:12 pm    Post subject: Reply with quote

Bugs wrote:
H.

What were the problems?

In a nutshell, spousal benefits , taxation and property rights.
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The [i]Notwithstanding clause[/i] -- good or bad?

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