Eh. Parliament could assert its supremacy at any time. Sure, the SCC is reading stuff into the Charter (my main interest is Indigenous veto on projects, which is mostly Supreme Court driven) but Parliament hasn’t even tried to push back by adjusting laws.
This is because we the people haven’t wanted them to. We’ve been running on momentum and it’s only now that things are so bad that we’re demanding Parliament make hard tradeoffs again. I have no doubt that if Mr. Carney’s government can’t reverse the decline and the Conservatives moderate their leader’s message a bit, that we might see a change of government.
I mostly blame the Canadian people, ie all of us. We lived off the fat of our past and our geography and Pax Americana for a long time. Well, turns out we’re not at the end of history and Parliament might have to lead again. Including pushing back on an SCC run wild.
I am confident that as the world becomes real again and Canada can no longer afford the delusion that we can do nothing, free-ride off everyone else militarily, block all new projects, and smugly lecture our allies, that we will demand performance from our Parliament again.
All the salty Conservative Party supporters on this forum seem to think that Carney’s election means Canadians will just accept Trudeau-era stagnation for another 5 years. I voted for Carney because (among other things) Poilievre’s support for the Trucker Convoy was a no-go for me. But I assure you that we will not tolerate 5 more years of stagnation.
But how exactly are you going to manifest your demand for performance, or your intolerance for stagnation? Words are easy. Doing more of the same (voting for politicians) and expecting different results is, as they say, insanity.
The Conservatives under Poilievre and Scheer offer nothing but attack dog politics and populism. Until that changes, can it be surprising that many voters are wary of them?
You WILL tolerate stagnation of any length because that is how the Laurentians cook the stew, and their "progressive" supporters have consistently proven to be very comfortable with eating vast amounts of bullshit.
Canada has been able to live under Pax Americana without having to pay for it. If we had been spending the 2% of our GDP on our military as we had promised, we would not have been able to spend money on other programs.
You are too optimistic. And lots and lots of the blame lies with the very subtle and clever generations-long brainwashing by the Canadian Brainwashing-to-the-left Corporation. The courts and justice system was severely fouled up already in mid-1970s.
One of my clear memories (and I was still only a teenager) was the mid'70s decision by a London, ON court that parent's were not financially responsible for their kid's actions, in the case of some school vandalism.
Even as a kid I could see the ramifications of that one, and I wasn't wrong.
"...history is littered with examples of those who, while deemed to be progressive in their day, are now seen to be monsters."
Sadly, schools stopped actually teaching history long ago, and so there is now a LARGE chunk of the population who do not understand what you said here.
They rush to judge historical figures by the standards of the past ten years, and they do so with no sense of context whatsoever.
What was that saying about people who don't pay attention to history...?
I am not a legal expert, but I am aware that the Rodriguez decision was a 5-4 split in the Supreme Court. The precedent for the Carter decision was based on the dissenting opinion in the Rodriguez decision - this was a *partial* reversal by the Supreme Court, not a wholesale arbitrary or unpredictable upheaval.
As far as I understand, this is not like the repeal of Roe V. Wade in the U.S., where whatever you think of abortion rights purportedly derived from "privacy" rights, the change in decision came about solely as a change in the composition of the court itself and not from any change of the facts or change in legal theory.
Also, Brian Dijkema is being one-sided in presentation of information about the TWU case, and although he lists a credible critic he does not acknowledge why the court made the decision that it did. An actual vow to require students to restrain sexuality to marriage between a man and woman *clearly* discriminates against LGBTQ people - the courts merely declined to prohibit discrimination against a would-be discriminatory body.
"The precedent for the Carter decision was based on the dissenting opinion in the Rodriguez decision - this was a *partial* reversal by the Supreme Court, not a wholesale arbitrary or unpredictable upheaval."
Hmmm. I won’t put the effort into seeing how the composition of the Supreme Court changed between the Rodriguez and Carter decisions but a 5-4 decision, while close is still a legal decision rendered. That becomes precedent doesn't it?
If the Carter case was based upon similar end of life criteria, then precedent was ignored, plain and simple. The author of this article is correct, the Supreme Court Justices are not reliable and consistent in their interpretation of legal facts and are not bound by their own earlier decisions.
Consistency does not mean being permanent and unchanging, and adjusting from precedent is not the same as "ignoring" precedent.
The court changing its opinion is not evidence of runaway judicial activism. What would be evidence of runaway judicial activism would be the court changing its opinions without a *traceable legal logic*. The evidence that Brian Dijkema presented is not convincing by that metric, for the simple reason that he did not delve into the courts' own accounts of their decisions.
The Canadian Supreme Court’s recent (1 generation?) practice of making laws rather than testing their constitutionality is a logical conclusion of the cowardice of elected members of Parliament who avoided decisions at all costs to ensure their individual reelection and pension tenure. The dominance of parliament by Quebec members with their 200 year plus tradition of slavery administered by the Catholic Church, which rewards submission and punishes initiative, didn’t help any. Justin’s edict a year or so ago that all SCC members be bilingual without a translator will ensure this Quebec dominance and continue the view of the 90% of Canadians who aren’t “old stump” unilingual Francos, that they will never get a hearing by someone who understands them.
To be fair at least 20 years ago a US legislator complained that Congress was avoiding hard decisions by “passing the buck” to the Supreme Court. And in the grand Canadian tradition of penis envy of the US (AKA “following the Jones” for readers disturbed by the preceding expression), the practice of avoiding and postponing decisions in the hope that they will no longer be needed seems to have been eagerly adopted by Canada’s parliament.
The author refers to the arbitrariness of the SCC flipping between making laws and testing their constitutionality ( to the extent that the notwithstanding clause makes this exercise useful). Another word for arbitrariness is “tyranny”. As part of the 90% of Canadians mentioned above, I find the second word much more appropriate.
Your thoughts Brian, echo my own. When I was young I wanted change. Now!! And I fought for it despite being a bit of an introvert. I wanted to stand up for my beliefs, believing it was important to do so. Now in my waning years, I look in horror to the country I grew up in. The latest was the unconscionable court decision here in BC that has given aboriginal often verbal memories credence to the point where this population now has title to the land we bought and improved. Our provincial government has supported it behind the scenes, yet we voted them in again. I despair. I'm glad to read however that you, a lawyer, have now also come to believe that the court system, I think, started with the again unconscionable decisions of McLaughlin years on the Supreme court of Canada...that still continues her quest to destroy our country.
For all the criticism of the US, there is no pretense that their judicial system is not political. We have an unelected, unaccountable, agenda-driven, activist supreme court. Anyone who has had the misfortune of dealing with our judicial system understands how capricious it can be. My solicitor referred to a hearing as a "crap shoot" (I assume the reference was to gambling).
Our Charter is not inclusive, the post-nation state is broken and, in the absence of meaningful reform, dissolution is the only solution.
Of course not ... it's for parliamentary representatives as a solution to our state of affairs politically, which has driven the state of affairs judicially.
This isn't just a problem with the SCC, but with the lower courts as well. Just this week a colleague and I were returning from the courthouse and having a conversation about how hard it is to provide advice to our clients because we can't be certain how a court will come down on an issue, or how much leeway they will give a self rep, or how little they might want to actually make a decision on a summary application.
Wonder if there is any relationship between rulings from the SCC and the progressive agendas that are being forced both on students in law schools and by various legal “professional” associations across the country?
What you said is just fundamentally untrue. For you, maybe, you need to see the Woke Powers repenting and rending their clothes in tears. That’s not representative of the broad mass of Canadians.
For most people, if we just get some good government with real decision-making and hard tradeoffs for a few years, I assure you that the sins of the past will be forgotten. Most people have families to raise, jobs to hold down, cottages to maintain.
It seems to really anger you that most Canadians will kind of just … forget that the LPC drove the country into the ground in 2016-2024 now that they have a new leader. But this is the reality.
Are you claiming that the courts actually are trusted? Or that trust can be rebuilt without repentance and restitution? Or that our institutions support repentance and restitution?
Obviously "are trusted" is always a numbers game. I submit that the number who do trust the courts is insufficient. The proof will be when those who don't trust the courts start ignoring their rulings.
Agree entirely with the main point of this piece which I took to be that gutting section 33 would be appalling. Quite apart from the fact its inclusion was essential for Lougheed and Blakeney's agreement, the SCC has by now forfeited any right to a default presumption that their decisions ought to be immune from s.33. Never mind comparing Rodriguez and Carter - that change hardly throws doubt upon the SCC's functioning. It's when the court just make things up that we have cause to question its functioning and there is no shortage of examples of THAT. (For now let us ignore their take on "cruel and unusual punishment", worthy though that is of a lengthy discussion.)
"Charter values" entering the chat via the SCC's 2012 Dore decision is a great example of the Court just making things up. A total fabrication.
A few years later they again just entirely made something up out of whole cloth, that being a "constitutional right to strike" discovering this charter right through a torturous interpretation of freedom of association (an actual charter right).
In short, gutting s.33 would, at any time, be a gross attack on the bargain struck with Lougheed and Blakeney. (And by the way, why do people only ever freak out about s.33 and not s.1? Courts over-ride ACTUAL constitutional rights all the time.) Doing it NOW, in the aftermath of the SCC demonstrating its willingness to just make things up ought to trigger a major constitutional crisis although this being Canada it likely wouldn't.
How is the right to strike *not* an inevitable deduction of the right to freedom of association? Freedom of association implicitly includes freedom to make use of that association, and if you are not allowed to make use of that association to exercise influence within the workplace, then your freedom of association has been curtailed.
You, me and every commenter at The Line are free to band together for the purpose of exerting economic pressure on [insert business of your choice]. But granting constitutional protection to *one particular tactic* we choose to use would be absurd.
And you overstate things when you say the prohibition against striking equates to not being allowed to make use of that association to exercise influence within the workplace. Influence can be exerted in any number of ways, not only through strike action.
Furthermore, the entire collective bargaining regime is a creation of statute. Rights set out in the Charter are clearly intended to address matters of a more fundamental/inalienable nature. There is no constitutional right to use a particular tactic to bargain over the price of anything - the SCC simply made it up. There is as much basis for a constitutional right to strike on the basis of freedom of association as there is for a constitutional right to a minimum wage based on security of the person.
How do you have collective bargaining in a workplace if you do not have the freedom to strike? Without the freedom to strike, there is no collective bargaining, because there is then no collective leverage.
You write that "granting constitutional protection to *one particular tactic* we choose to use would be absurd." All our rights are exercised through the implementation of various examples. The right to religious freedom, for example, is exercised through being broadly free to wear a religious turban. And likewise the right to freedom of association is exercised through having broad freedoms to strike.
Calling strikes a "tactic" is true, but in this context deflects from the reality of them also being a form of expression. They are an expressed form of collective association.
You write that "There is as much basis for a constitutional right to strike on the basis of freedom of association as there is for a constitutional right to a minimum wage based on security of the person." The problem with your comparison is that the link between the minimum wage and the security of the person is weaker than the link between collective association and collective bargaining. Even if you were to make the uncertain assumption that the minimum wage is an effective guarantee of the security of the person, there would be uncertainties and much subjectivity in tying any particular minimum wage *rate* to the security of the person. Broadly categorizing strikes as a "right" of association does not require quite so many assumptions for a court to make.
You actually can have collective bargaining without the constitutional right to strike but the point is, it is not up to the SCC to create such a right out of whole cloth. Labour relations is simply not a constitutional matter. From the dissent:
Canadian labour relations is a complex web of intersecting interests, rights, and obligations, and has far-reaching implications for Canadian society. Our colleagues clearly believe that providing an affirmative right to strike, with protection for the striking workers’ positions, is a worthy policy choice. But it is not the role of this Court to transform all policy choices that the majority deems worthy into constitutional imperatives. The majority here sets aside the legislature’s choice regarding the right to strike and, in so doing, it imposes constitutional burdens on third party employers and limits their rights. It restricts the ability of governments to balance the competing interests of employers, employees, and the public. Relying on a constitutional freedom to impose restrictions on third parties in the absence of clear constitutional wording to that effect threatens to undermine Canada’s constitutional order.
In other words, "hands off policy issues, SCC". I co-sign.
I do not think your turban example is analogous/responsive to the point I was making. My point about tactics was regarding tactics *for the purpose of exerting economic pressure on [insert business of your choice]*. The right to use certain tactics to bargain about anything is, for me, not close to the right to religious freedom - the latter is exactly the type of inalienable/fundamental right which I referred to as being worthy of constitutional protection while the former is not.
I don't disagree that a strike is a form of expression but the right to strike here was grounded in freedom of association. Of course, I would object just as strenuously were it grounded in freedom of expression but just sayin'. FWIW I would strongly object to any efforts to curtail lawful picketing or any other lawful forms of expression to try and get a point across.
I agree that my minimum wage analogy was not perfect and that your points in response are valid, but it is directionally sound and illustrative of my overall point that the SCC has no business elevating the right to strike into a constitutional matter.
Also, while not really relevant to the point we are discussing, I can't help but note that in the unionized workplace the *employer's* freedom of association is de facto non-existant, given the hoops they often must go through to discharge a unionized employee. True, the parties can negotiate specific penalties into a collective agreement but they are extraordinarily rare. No complaints - this is part of the give and take that the statutory framework has created (and one which ought not to be tampered with by, for example, elevating the right to strike to a constitutional matter). But it is an interesting contrast - to me, at least. And some statutory regimes (feds and Nova Scotia) grossly infringe on the Employer's freedom of association in respect of non-unionized employees. That's a whole other story.
It's not inevitable because the right to swing your arm ends at my nose.
Unless of course you allow that striking is grounds for dismissal (for failure to show up to work), but that's not what the "right to strike" usually implies.
Sure my right to swing my arm has limits, but it is still broadly speaking a right. Every Charter right has "reasonable" limits.
In the context of the Charter, I would expect that a "right to strike" would mean that in *most* circumstances government legislation to curtail that strike would be prohibited. Are you aware of courts imposing the right in a more extreme manner than that?
Not sure why you're asking. My point was simply that "right to strike" does not necessary follow from freedom of association.
But it does closely follow from freedom of movement, as long as you accept the consequences to your continued employment. Employment is a bilateral agreement after all.
And for the record, while I see unions as necessary in the 30s, today they're more an indication of management incompetence. Employers should treat employees well to maximize business success. See Joseph Stiglitz's work on "efficiency wages".
My point is that it would be very strange, from the viewpoint of common sense, if you had the right to freely form associations broadly speaking, but if there was a glaring exception that you could never use such associations for collective bargaining purposes within workplaces that the government of the day has decided are sensitive to its political interests. Judging that there is a right to strike is how you avoid that weird potential exception.
"Employment is a bilateral agreement after all."
There is mutual consent, but only up to a point. Employers generally have more resources at their disposal than employees, and so they intrinsically have more coercive power than employees, especially given particular economic circumstances. Collective bargaining is a potential tool for evening out that relationship.
Well, OK then, certainly the right to "attempt" collective bargaining follows from the right to association, but to coerce an employer to do so, regardless of its greater power than INDIVIDUAL employees, crosses the line in my opinion.
When an employer ignores reasonable employee demands, to the extent of allowing employees to strike, it invites severe damage to its reputation and finances. Such an employer deserves to lose its workforce, or more accurately, management deserves to get replaced. Management only has coercive power when employees don't have much of a choice, which is another way of saying they're not as valuable or irreplaceable as they thought they were. Unions who make unreasonable demands deserve to find out just how replaceable their members are. What counts as reasonable isn't hard to figure out with market data on wages.
Both parties need to see collective bargaining as more than a win-lose proposition, something it seems that the UAW certainly didn't grasp in the early 80s. (There was a very interesting documentary on TVO a few decades ago about Bob White and his part in that story.) And where are they now?
Of course, immigration policy starts to enter the equation when you talk about workforce mobility too. And management needs to set a better example with respect to outsized compensation too.
And the freedom of association for people who want to work for that employer but not belong to the union? Or union members who are satisfied with the terms of their employment and don't want to strike? How about people who are unhappy about the political advocacy of their union that's unrelated to the workplace?
If the government were imposing legislation unreasonably requiring employees to be forced into membership in unions, I would expect that legislation to be vulnerable to Charter challenges, depending on the specific details of the case.
I think that there are some laws in this country protecting union supremacy in some cases, but there are no egregious examples that immediately come to my mind.
If one wants to work for a unionized employer then they benefit from the terms of contracts negotiated by that union. Terms that in many cases an individual likely wouldn't be able to negotiate.
Strikes aren't called by union management - they're voted on by members. If the majority call for a strike, then all of the members are obliged to strike if/when the strike is called.
If members are unhappy with the political advocacy of their union they're free to run for union office and work to make changes within the organization.
The compulsory nature of it all is the offensive part. And claiming that running for union office is really an option to change the organization is a bit like claiming Cuba is really democratic because the people get to elect their local representatives to the national assembly.
One lawyer with Christian lens viewpoint, offering up two 2 SCC decisions that he is unhappy with is hardly reason to say our courts aren't trustworthy.
The author misunderstands the role of the SCC in setting and departing from precedent. It is neither new nor radical that our highest court both creates binding precedent and departs from precedent over time. That is its role.
It is telling that the only cases on which he has based his analysis are those that are dear to certain Christian hearts. He does not include analysis of any of the more pedestrian departures from and development of precedent, perhaps because they don’t interest him. But that is, fortunately, not the way legal analysis works.
There is no need for counter-examples. Brian Dijkema objected to two case decisions but he did discuss the courts' own rationales for said decisions. He assumed what needs to be proven, that the courts' most recent decisions are not in principle justifiable.
I'm sorry, perhaps I wasn't clear (or I've misunderstood your response).
The counter-examples I refer to were provided by the author to refute the OP's implied argument that the SCC operates rationally, and given his explanation, he seemed to have done more than just assume his conclusion.
Another counter example though (which another poster has hinted at) is allowing prisoners the right to vote - a blatant disregard of Parliament with only the logical equivalent of "No, it isn't" to answer Parliament's "We say it's a reasonable infringement".
Further to Mark Tilley's comment below (and I'm not a Christian), that the points were both relevant to Christians is not an opposing argument. It's just using an identity to attack credibility and I reject that idea as unethical, and bigoted. It's no different than saying we need free speech, except yours. It's bullshit.
Using identities either as a signal of virtue or vice (with "new" words for old ideas like "intersectional", or "equity-lens") is selective, subjective, and arbitrary. I hope we'll stop soon and get back to building a productive, peaceful society.
People who make this choice to sort us and rank us have done a tremendous harm to our community. I'm angry this happened. It's weak and shallow thinking, and fails in the first month of the first year of ethics class.
It can be an ad-hominem fallacy to dismiss an argument purely based on the identity of the person making the argument. I suspect however that Brad was citing the Christian identity to account for, not to prove, a weakness of argument.
Brian Dijkema objected to two case decisions but he did discuss the courts' own rationales for said decisions. He assumed what needs to be proven, that the courts' most recent decisions are not in principle justifiable.
As anyone with a legal or government background knows the interpretation of any new legislation will set up new decisions as precedent cases. Old ones may not stand the test of time if rights and recognition of them shifts. Just because it was legally okay to do eugenics at one time, doesn’t mean that legal precedent should stand in the future. I think you should also extend your critical thinking in the direction of those Premiers testing the Charter’s notwithstanding clause willy nilly in support of their party’s ideological pursuits - I’m speaking of AB and SK as it relates to legislating against the human rights of trans kids and QC as it relates to the right to religious adornment in the public sector.
Eh. Parliament could assert its supremacy at any time. Sure, the SCC is reading stuff into the Charter (my main interest is Indigenous veto on projects, which is mostly Supreme Court driven) but Parliament hasn’t even tried to push back by adjusting laws.
This is because we the people haven’t wanted them to. We’ve been running on momentum and it’s only now that things are so bad that we’re demanding Parliament make hard tradeoffs again. I have no doubt that if Mr. Carney’s government can’t reverse the decline and the Conservatives moderate their leader’s message a bit, that we might see a change of government.
I mostly blame the Canadian people, ie all of us. We lived off the fat of our past and our geography and Pax Americana for a long time. Well, turns out we’re not at the end of history and Parliament might have to lead again. Including pushing back on an SCC run wild.
"This is because we the people haven’t wanted them to."
I'd say it's more accurate to say people don't have the ability to make a political change, because it's politics that has also lost people's trust.
The solution is sortition. Which is still going to require that a lot of people learn about, support and then demand it.
Okay — good luck with that.
I am confident that as the world becomes real again and Canada can no longer afford the delusion that we can do nothing, free-ride off everyone else militarily, block all new projects, and smugly lecture our allies, that we will demand performance from our Parliament again.
All the salty Conservative Party supporters on this forum seem to think that Carney’s election means Canadians will just accept Trudeau-era stagnation for another 5 years. I voted for Carney because (among other things) Poilievre’s support for the Trucker Convoy was a no-go for me. But I assure you that we will not tolerate 5 more years of stagnation.
Hey, I recognize the difficulty.
But how exactly are you going to manifest your demand for performance, or your intolerance for stagnation? Words are easy. Doing more of the same (voting for politicians) and expecting different results is, as they say, insanity.
The Conservatives under Poilievre and Scheer offer nothing but attack dog politics and populism. Until that changes, can it be surprising that many voters are wary of them?
You WILL tolerate stagnation of any length because that is how the Laurentians cook the stew, and their "progressive" supporters have consistently proven to be very comfortable with eating vast amounts of bullshit.
"free-ride off everyone else militarily"
I hear this from time to time, but I don't understand it a bit. What didn't happen as a result of this "free-ride"? What are we getting for free?
Canada has been able to live under Pax Americana without having to pay for it. If we had been spending the 2% of our GDP on our military as we had promised, we would not have been able to spend money on other programs.
You are too optimistic. And lots and lots of the blame lies with the very subtle and clever generations-long brainwashing by the Canadian Brainwashing-to-the-left Corporation. The courts and justice system was severely fouled up already in mid-1970s.
One of my clear memories (and I was still only a teenager) was the mid'70s decision by a London, ON court that parent's were not financially responsible for their kid's actions, in the case of some school vandalism.
Even as a kid I could see the ramifications of that one, and I wasn't wrong.
"...history is littered with examples of those who, while deemed to be progressive in their day, are now seen to be monsters."
Sadly, schools stopped actually teaching history long ago, and so there is now a LARGE chunk of the population who do not understand what you said here.
They rush to judge historical figures by the standards of the past ten years, and they do so with no sense of context whatsoever.
What was that saying about people who don't pay attention to history...?
I am not a legal expert, but I am aware that the Rodriguez decision was a 5-4 split in the Supreme Court. The precedent for the Carter decision was based on the dissenting opinion in the Rodriguez decision - this was a *partial* reversal by the Supreme Court, not a wholesale arbitrary or unpredictable upheaval.
As far as I understand, this is not like the repeal of Roe V. Wade in the U.S., where whatever you think of abortion rights purportedly derived from "privacy" rights, the change in decision came about solely as a change in the composition of the court itself and not from any change of the facts or change in legal theory.
Also, Brian Dijkema is being one-sided in presentation of information about the TWU case, and although he lists a credible critic he does not acknowledge why the court made the decision that it did. An actual vow to require students to restrain sexuality to marriage between a man and woman *clearly* discriminates against LGBTQ people - the courts merely declined to prohibit discrimination against a would-be discriminatory body.
"The precedent for the Carter decision was based on the dissenting opinion in the Rodriguez decision - this was a *partial* reversal by the Supreme Court, not a wholesale arbitrary or unpredictable upheaval."
Hmmm. I won’t put the effort into seeing how the composition of the Supreme Court changed between the Rodriguez and Carter decisions but a 5-4 decision, while close is still a legal decision rendered. That becomes precedent doesn't it?
If the Carter case was based upon similar end of life criteria, then precedent was ignored, plain and simple. The author of this article is correct, the Supreme Court Justices are not reliable and consistent in their interpretation of legal facts and are not bound by their own earlier decisions.
Consistency does not mean being permanent and unchanging, and adjusting from precedent is not the same as "ignoring" precedent.
The court changing its opinion is not evidence of runaway judicial activism. What would be evidence of runaway judicial activism would be the court changing its opinions without a *traceable legal logic*. The evidence that Brian Dijkema presented is not convincing by that metric, for the simple reason that he did not delve into the courts' own accounts of their decisions.
The Canadian Supreme Court’s recent (1 generation?) practice of making laws rather than testing their constitutionality is a logical conclusion of the cowardice of elected members of Parliament who avoided decisions at all costs to ensure their individual reelection and pension tenure. The dominance of parliament by Quebec members with their 200 year plus tradition of slavery administered by the Catholic Church, which rewards submission and punishes initiative, didn’t help any. Justin’s edict a year or so ago that all SCC members be bilingual without a translator will ensure this Quebec dominance and continue the view of the 90% of Canadians who aren’t “old stump” unilingual Francos, that they will never get a hearing by someone who understands them.
To be fair at least 20 years ago a US legislator complained that Congress was avoiding hard decisions by “passing the buck” to the Supreme Court. And in the grand Canadian tradition of penis envy of the US (AKA “following the Jones” for readers disturbed by the preceding expression), the practice of avoiding and postponing decisions in the hope that they will no longer be needed seems to have been eagerly adopted by Canada’s parliament.
The author refers to the arbitrariness of the SCC flipping between making laws and testing their constitutionality ( to the extent that the notwithstanding clause makes this exercise useful). Another word for arbitrariness is “tyranny”. As part of the 90% of Canadians mentioned above, I find the second word much more appropriate.
Your thoughts Brian, echo my own. When I was young I wanted change. Now!! And I fought for it despite being a bit of an introvert. I wanted to stand up for my beliefs, believing it was important to do so. Now in my waning years, I look in horror to the country I grew up in. The latest was the unconscionable court decision here in BC that has given aboriginal often verbal memories credence to the point where this population now has title to the land we bought and improved. Our provincial government has supported it behind the scenes, yet we voted them in again. I despair. I'm glad to read however that you, a lawyer, have now also come to believe that the court system, I think, started with the again unconscionable decisions of McLaughlin years on the Supreme court of Canada...that still continues her quest to destroy our country.
Another indictment of Confederation.
For all the criticism of the US, there is no pretense that their judicial system is not political. We have an unelected, unaccountable, agenda-driven, activist supreme court. Anyone who has had the misfortune of dealing with our judicial system understands how capricious it can be. My solicitor referred to a hearing as a "crap shoot" (I assume the reference was to gambling).
Our Charter is not inclusive, the post-nation state is broken and, in the absence of meaningful reform, dissolution is the only solution.
Sortition is another solution. Look it up.
I don't think it would work for judges.
Of course not ... it's for parliamentary representatives as a solution to our state of affairs politically, which has driven the state of affairs judicially.
This isn't just a problem with the SCC, but with the lower courts as well. Just this week a colleague and I were returning from the courthouse and having a conversation about how hard it is to provide advice to our clients because we can't be certain how a court will come down on an issue, or how much leeway they will give a self rep, or how little they might want to actually make a decision on a summary application.
It's becoming a problem.
Same on the receiving end. They must make it up as they go along.
True,and sad. Thank you for the article.
Wonder if there is any relationship between rulings from the SCC and the progressive agendas that are being forced both on students in law schools and by various legal “professional” associations across the country?
The problem is that trust can only be rebuilt by repentance and restitution. Nobody in any of our institutions has the slightest interest in either.
That leaves replacement or reconstruction as options, not to rebuild trust, but to build trust anew in a new institution.
Canada needs revolutionary change, but the only way to get it may be secession or annexation.
What you said is just fundamentally untrue. For you, maybe, you need to see the Woke Powers repenting and rending their clothes in tears. That’s not representative of the broad mass of Canadians.
For most people, if we just get some good government with real decision-making and hard tradeoffs for a few years, I assure you that the sins of the past will be forgotten. Most people have families to raise, jobs to hold down, cottages to maintain.
It seems to really anger you that most Canadians will kind of just … forget that the LPC drove the country into the ground in 2016-2024 now that they have a new leader. But this is the reality.
Are you claiming that the courts actually are trusted? Or that trust can be rebuilt without repentance and restitution? Or that our institutions support repentance and restitution?
Obviously "are trusted" is always a numbers game. I submit that the number who do trust the courts is insufficient. The proof will be when those who don't trust the courts start ignoring their rulings.
Anyway, the main argument in the comments seems to be "I trust the courts, so there's no problem".
Or sortition.
It's radical sure, but not (strictly speaking) revolutionary.
Agree entirely with the main point of this piece which I took to be that gutting section 33 would be appalling. Quite apart from the fact its inclusion was essential for Lougheed and Blakeney's agreement, the SCC has by now forfeited any right to a default presumption that their decisions ought to be immune from s.33. Never mind comparing Rodriguez and Carter - that change hardly throws doubt upon the SCC's functioning. It's when the court just make things up that we have cause to question its functioning and there is no shortage of examples of THAT. (For now let us ignore their take on "cruel and unusual punishment", worthy though that is of a lengthy discussion.)
"Charter values" entering the chat via the SCC's 2012 Dore decision is a great example of the Court just making things up. A total fabrication.
A few years later they again just entirely made something up out of whole cloth, that being a "constitutional right to strike" discovering this charter right through a torturous interpretation of freedom of association (an actual charter right).
In short, gutting s.33 would, at any time, be a gross attack on the bargain struck with Lougheed and Blakeney. (And by the way, why do people only ever freak out about s.33 and not s.1? Courts over-ride ACTUAL constitutional rights all the time.) Doing it NOW, in the aftermath of the SCC demonstrating its willingness to just make things up ought to trigger a major constitutional crisis although this being Canada it likely wouldn't.
How is the right to strike *not* an inevitable deduction of the right to freedom of association? Freedom of association implicitly includes freedom to make use of that association, and if you are not allowed to make use of that association to exercise influence within the workplace, then your freedom of association has been curtailed.
You, me and every commenter at The Line are free to band together for the purpose of exerting economic pressure on [insert business of your choice]. But granting constitutional protection to *one particular tactic* we choose to use would be absurd.
And you overstate things when you say the prohibition against striking equates to not being allowed to make use of that association to exercise influence within the workplace. Influence can be exerted in any number of ways, not only through strike action.
Furthermore, the entire collective bargaining regime is a creation of statute. Rights set out in the Charter are clearly intended to address matters of a more fundamental/inalienable nature. There is no constitutional right to use a particular tactic to bargain over the price of anything - the SCC simply made it up. There is as much basis for a constitutional right to strike on the basis of freedom of association as there is for a constitutional right to a minimum wage based on security of the person.
How do you have collective bargaining in a workplace if you do not have the freedom to strike? Without the freedom to strike, there is no collective bargaining, because there is then no collective leverage.
You write that "granting constitutional protection to *one particular tactic* we choose to use would be absurd." All our rights are exercised through the implementation of various examples. The right to religious freedom, for example, is exercised through being broadly free to wear a religious turban. And likewise the right to freedom of association is exercised through having broad freedoms to strike.
Calling strikes a "tactic" is true, but in this context deflects from the reality of them also being a form of expression. They are an expressed form of collective association.
You write that "There is as much basis for a constitutional right to strike on the basis of freedom of association as there is for a constitutional right to a minimum wage based on security of the person." The problem with your comparison is that the link between the minimum wage and the security of the person is weaker than the link between collective association and collective bargaining. Even if you were to make the uncertain assumption that the minimum wage is an effective guarantee of the security of the person, there would be uncertainties and much subjectivity in tying any particular minimum wage *rate* to the security of the person. Broadly categorizing strikes as a "right" of association does not require quite so many assumptions for a court to make.
You actually can have collective bargaining without the constitutional right to strike but the point is, it is not up to the SCC to create such a right out of whole cloth. Labour relations is simply not a constitutional matter. From the dissent:
Canadian labour relations is a complex web of intersecting interests, rights, and obligations, and has far-reaching implications for Canadian society. Our colleagues clearly believe that providing an affirmative right to strike, with protection for the striking workers’ positions, is a worthy policy choice. But it is not the role of this Court to transform all policy choices that the majority deems worthy into constitutional imperatives. The majority here sets aside the legislature’s choice regarding the right to strike and, in so doing, it imposes constitutional burdens on third party employers and limits their rights. It restricts the ability of governments to balance the competing interests of employers, employees, and the public. Relying on a constitutional freedom to impose restrictions on third parties in the absence of clear constitutional wording to that effect threatens to undermine Canada’s constitutional order.
In other words, "hands off policy issues, SCC". I co-sign.
I do not think your turban example is analogous/responsive to the point I was making. My point about tactics was regarding tactics *for the purpose of exerting economic pressure on [insert business of your choice]*. The right to use certain tactics to bargain about anything is, for me, not close to the right to religious freedom - the latter is exactly the type of inalienable/fundamental right which I referred to as being worthy of constitutional protection while the former is not.
I don't disagree that a strike is a form of expression but the right to strike here was grounded in freedom of association. Of course, I would object just as strenuously were it grounded in freedom of expression but just sayin'. FWIW I would strongly object to any efforts to curtail lawful picketing or any other lawful forms of expression to try and get a point across.
I agree that my minimum wage analogy was not perfect and that your points in response are valid, but it is directionally sound and illustrative of my overall point that the SCC has no business elevating the right to strike into a constitutional matter.
Also, while not really relevant to the point we are discussing, I can't help but note that in the unionized workplace the *employer's* freedom of association is de facto non-existant, given the hoops they often must go through to discharge a unionized employee. True, the parties can negotiate specific penalties into a collective agreement but they are extraordinarily rare. No complaints - this is part of the give and take that the statutory framework has created (and one which ought not to be tampered with by, for example, elevating the right to strike to a constitutional matter). But it is an interesting contrast - to me, at least. And some statutory regimes (feds and Nova Scotia) grossly infringe on the Employer's freedom of association in respect of non-unionized employees. That's a whole other story.
It's not inevitable because the right to swing your arm ends at my nose.
Unless of course you allow that striking is grounds for dismissal (for failure to show up to work), but that's not what the "right to strike" usually implies.
Sure my right to swing my arm has limits, but it is still broadly speaking a right. Every Charter right has "reasonable" limits.
In the context of the Charter, I would expect that a "right to strike" would mean that in *most* circumstances government legislation to curtail that strike would be prohibited. Are you aware of courts imposing the right in a more extreme manner than that?
Not sure why you're asking. My point was simply that "right to strike" does not necessary follow from freedom of association.
But it does closely follow from freedom of movement, as long as you accept the consequences to your continued employment. Employment is a bilateral agreement after all.
And for the record, while I see unions as necessary in the 30s, today they're more an indication of management incompetence. Employers should treat employees well to maximize business success. See Joseph Stiglitz's work on "efficiency wages".
My point is that it would be very strange, from the viewpoint of common sense, if you had the right to freely form associations broadly speaking, but if there was a glaring exception that you could never use such associations for collective bargaining purposes within workplaces that the government of the day has decided are sensitive to its political interests. Judging that there is a right to strike is how you avoid that weird potential exception.
"Employment is a bilateral agreement after all."
There is mutual consent, but only up to a point. Employers generally have more resources at their disposal than employees, and so they intrinsically have more coercive power than employees, especially given particular economic circumstances. Collective bargaining is a potential tool for evening out that relationship.
Well, OK then, certainly the right to "attempt" collective bargaining follows from the right to association, but to coerce an employer to do so, regardless of its greater power than INDIVIDUAL employees, crosses the line in my opinion.
When an employer ignores reasonable employee demands, to the extent of allowing employees to strike, it invites severe damage to its reputation and finances. Such an employer deserves to lose its workforce, or more accurately, management deserves to get replaced. Management only has coercive power when employees don't have much of a choice, which is another way of saying they're not as valuable or irreplaceable as they thought they were. Unions who make unreasonable demands deserve to find out just how replaceable their members are. What counts as reasonable isn't hard to figure out with market data on wages.
Both parties need to see collective bargaining as more than a win-lose proposition, something it seems that the UAW certainly didn't grasp in the early 80s. (There was a very interesting documentary on TVO a few decades ago about Bob White and his part in that story.) And where are they now?
Of course, immigration policy starts to enter the equation when you talk about workforce mobility too. And management needs to set a better example with respect to outsized compensation too.
And the freedom of association for people who want to work for that employer but not belong to the union? Or union members who are satisfied with the terms of their employment and don't want to strike? How about people who are unhappy about the political advocacy of their union that's unrelated to the workplace?
If the government were imposing legislation unreasonably requiring employees to be forced into membership in unions, I would expect that legislation to be vulnerable to Charter challenges, depending on the specific details of the case.
I think that there are some laws in this country protecting union supremacy in some cases, but there are no egregious examples that immediately come to my mind.
If one wants to work for a unionized employer then they benefit from the terms of contracts negotiated by that union. Terms that in many cases an individual likely wouldn't be able to negotiate.
Strikes aren't called by union management - they're voted on by members. If the majority call for a strike, then all of the members are obliged to strike if/when the strike is called.
If members are unhappy with the political advocacy of their union they're free to run for union office and work to make changes within the organization.
The compulsory nature of it all is the offensive part. And claiming that running for union office is really an option to change the organization is a bit like claiming Cuba is really democratic because the people get to elect their local representatives to the national assembly.
One could argue that the courts are activist because politicians have abrogated their responsibility to be so.
Just another reason why I continue to advocate for sortition.
One lawyer with Christian lens viewpoint, offering up two 2 SCC decisions that he is unhappy with is hardly reason to say our courts aren't trustworthy.
How is the Christian lens relevant to the points?
The author misunderstands the role of the SCC in setting and departing from precedent. It is neither new nor radical that our highest court both creates binding precedent and departs from precedent over time. That is its role.
It is telling that the only cases on which he has based his analysis are those that are dear to certain Christian hearts. He does not include analysis of any of the more pedestrian departures from and development of precedent, perhaps because they don’t interest him. But that is, fortunately, not the way legal analysis works.
You only need to provide counter-examples to refute an argument. That's the way logic works.
Of course, no one I've read thinks of the legal system as being anything close to rigorous in logic.
There is no need for counter-examples. Brian Dijkema objected to two case decisions but he did discuss the courts' own rationales for said decisions. He assumed what needs to be proven, that the courts' most recent decisions are not in principle justifiable.
I'm sorry, perhaps I wasn't clear (or I've misunderstood your response).
The counter-examples I refer to were provided by the author to refute the OP's implied argument that the SCC operates rationally, and given his explanation, he seemed to have done more than just assume his conclusion.
Another counter example though (which another poster has hinted at) is allowing prisoners the right to vote - a blatant disregard of Parliament with only the logical equivalent of "No, it isn't" to answer Parliament's "We say it's a reasonable infringement".
Further to Mark Tilley's comment below (and I'm not a Christian), that the points were both relevant to Christians is not an opposing argument. It's just using an identity to attack credibility and I reject that idea as unethical, and bigoted. It's no different than saying we need free speech, except yours. It's bullshit.
Using identities either as a signal of virtue or vice (with "new" words for old ideas like "intersectional", or "equity-lens") is selective, subjective, and arbitrary. I hope we'll stop soon and get back to building a productive, peaceful society.
People who make this choice to sort us and rank us have done a tremendous harm to our community. I'm angry this happened. It's weak and shallow thinking, and fails in the first month of the first year of ethics class.
It can be an ad-hominem fallacy to dismiss an argument purely based on the identity of the person making the argument. I suspect however that Brad was citing the Christian identity to account for, not to prove, a weakness of argument.
Brian Dijkema objected to two case decisions but he did discuss the courts' own rationales for said decisions. He assumed what needs to be proven, that the courts' most recent decisions are not in principle justifiable.
Are you going to take a shot at any other hearts then just Christian ?? There is aplenty of targets out there, you know.
Thanks, a Good article here.
It's definitely become a battle of Ideology recently, so noticeable since election of of Trudeau.
Our laws and courts seem leaky and unreliable?
Results depending on influence and money, as always. Conservative thought on the precipice against once extreme progressive ideas at this time.
It's not only Canada, USA as well.
The battle of "change".
As anyone with a legal or government background knows the interpretation of any new legislation will set up new decisions as precedent cases. Old ones may not stand the test of time if rights and recognition of them shifts. Just because it was legally okay to do eugenics at one time, doesn’t mean that legal precedent should stand in the future. I think you should also extend your critical thinking in the direction of those Premiers testing the Charter’s notwithstanding clause willy nilly in support of their party’s ideological pursuits - I’m speaking of AB and SK as it relates to legislating against the human rights of trans kids and QC as it relates to the right to religious adornment in the public sector.
And Doug Ford using it twice for IMO frivolous reasons.