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I can't be the only person not aware of the Power v. Canada case. Why not put in a short paragraph to situate what you are trying to convey? Am I supposed to know the case like the two authors seem to think I should?

In my view, this opinion is not well written. It mixes too many things while trying to put forward its arguments. It does not convince me to pay more attention to your cause.

I also see no mention of the democratic way to deal with a bad government making bad laws is an election every four years, rather than a judicial process.

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But the problem is the individuals who passed the laws would not pay. The "government" would which is you and me. The legislators would continue to sit and be paid and accumilate their de lux pension while the deficit would rise.

There would be no deterant unless those who voted for the bill suffer some consequence.

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founding

The foundation for the author's argument is that paying compensation will impact the creation of laws. The payment of compensation from the federal government to individuals is from general revenue, the source of which is the Canadian public. The politicians themselves or their political parties are not subject to the order to compensate, therefore any court order to award compensation will only affect the taxation revenue of the government. No harm will come to the government or the individuals responsible, only the Canadian population which will suffer a loss of services to cover the cost of the compensation, or increased borrowing cost if there is a requirement to print the funds.

If the author's argument were valid, there would be a penalty directly to the parties responsible for enacting the egregious legislation. The awarding of compensation does not provide for that.

It provides for a potential flood gate of legal action for all those who believe they were wronged, in the hopes of a cash reward, let alone the additional cost of government legal fees to defend these actions. No politician is "on the hook".

If the author wanted to alter the future presentation of unjust laws in ways other than the current judicial oversight, then they would have targeted the responsible parties - advocate for direct to politician or political party penalties.

Then you'll see change overnight.

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Lawyers earn a great deal of money litigating issues like 'bad faith', 'clearly wrong', and 'abuse of power' (which I presume in this means in violation of the constitution without invoking the lovely abomination known as the 'notwithstanding clause'). Problem is the circumstances in question, whatever they may be (authors' don't illuminate this detail) may well not involve any of the listed sins from the perspective of the legislators. They're subjective.

As well, the historical cases of bad law need to note the circumstances at the time they were passed. We certainly condemn them all from our hindsight vantage point of 2023 but in 1942 the threat of a 5th column of Japanese folk willing to do the bidding of the Imperial Japanese Government was considered very real. Sober assessment today has concluded that the Japanese did not have the wherewithal to invade the North American West Coast, but things were not so clear then. The reaction of the Canadian Gov't was certainly outrageous but was generally supported then, along with the imprisonment of fascist Canadians of German and Italian background. Compensation, very belated, has been paid. All to say, whatever affront to the constitution involved with this mysterious case likely has similar justifications in the minds of today's legislators and not necessarily passed in bad faith, etc. The courts can adjudicate when they do - no doubt far too slowly and far too expensively as is their wont.

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I guess my question is what is the downside to something like this? The authors definitely identify a problem. I think in the case of Danielle Smith it's not clear to me if it's in bad faith or as Jen or Matt said in a previous article she lacks the ability for clear discernment and might have put forth that dumb proposal really thinking it was okay. On the other hand, some of the federal stuff clearly is cynical in the worst way. However, my intuition tells me people will abuse the lawsuit process. And as others have pointed out the taxpayers will face the consequences and not the politicians and policy wonks whispering into those politician's ears

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There is a superficial attraction to the proposition that if Parliament or a Provincial Legislature (that is, the folks whom we ELECT to make the laws) decide to pass some obviously “unconstitutional statute”, and if someone is personally “damaged” by its application, then that aggrieved person ought to get a remedy from “the government”. For after all, why should those elected (but ill-advised) parliamentarians get off the hook for passing “unconstitutional” laws! Bad on them!

However, it is also important to appreciate that the law in question – the one that was nullified by the courts in this case - may actually have been quite popular, or useful, or even necessary, although you wouldn’t know that from the way that the story is told here. So, what is this case actually about?

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The plaintiff, Mr. Power, was convicted on two counts of sexual assault and he was sentenced to two terms of imprisonment that were served concurrently. When he got out of prison, though, he would still have a criminal record, so he was anxious to expunge that record, so that no one would know about his past misdeeds.

However, unfortunately for him, by the time that he got around to applying for a pardon, the Harper government, had passed the Limiting Pardons for Serious Crimes Act 2010 and the Safe Streets and Communities Act, 2012, which put new limits on the ability of convicted felons to obtain a pardon or to purge their criminal records.

Which is to say: the new law made it harder for Mr. Power to expunge his past and (more importantly) to hide it from future employers or from professional regulatory bodies, which might be concerned about his “good character”. So Mr. Power was obviously affected by this change in the law, which, equally obviously, only applied to people who had already been convicted of identified kinds of wrongdoing. For more background and detail, see: https://www.canlii.org/en/nb/nbca/doc/2022/2022nbca14/2022nbca14.html?searchUrlHash=AAAAAQAMSm9zZXBoIFBvd2VyAAAAAAE&resultIndex=2

However, what made the law “unconstitutional”, was that it increased the practical burden on already convicted felons; and it seems to have been regarded by the Courts as a additional punishment – as, of course, would always be the case for any “reform” of pardons or parole, that made them harder to get. In other words, it appears that government can make it easier to get a pardon, but, apparently, it can’t make it harder -- even if the previous law was seriously flawed, or was too lenient, or was otherwise contrary to the public interest.

That is the legal over-reach – the “unconstitutionality” - for which Mr. Power seeks compensation, and he also claims that restricting the availability of pardons “was clearly wrong, undertaken in bad faith, and an abuse of government power”.

However, for completeness, I should note that when making these changes, the Harper government did not invoke the “notwithstanding clause”, which might have ensured that its handiwork was immune from the tinkering of Judges. It either thought that such safeguard from court interference was unnecessary or it ignored the possibility.

What I also point out is that it is often very difficult to predict what the Supreme Court will have to say about the “constitutionality” of particular legislation or the ambit of the Charter of Rights. Because the exercise is very much a work in progress; and because Court decisions may not be a model of clarity; and because there are often conflicting reasons from different Judges, which confuses things; and because the Court sometimes, simply changes its mind.

For example, the Supreme Court of Canada said, for many years, and in a number of different decisions, involving different SCC Judges, that collective bargaining – a very common form of economic activity that is normally subject to provincial legislation – was not covered by the Charter at all. Then, many years later, it totally reversed itself, “discovering” that collective bargaining and the right to strike were Charter-protected after all – thus exposing huge swaths of provincial legislation to regulation by the federal Courts, and creating much uncertainty and much work for lawyers.

Similarly, we have recently learned that multiple murderers – that is, the most heinous of convicted villains - can no longer, be sentenced “to life imprisonment without parole”, because that, too, has now been held to be unconstitutional.

Be that as it may, the lesson is that so long as parliamentarians shrink from invoking the “notwithstanding clause”, it will be the appointed Judges, and not elected legislatures, that occupy large swaths of social and economic policy making - including (indeed, especially) in the criminal law, but also in many other areas of law and jurisdiction, as well.

Which is to say that, it ultimately, and in the end, is all about “politics”– just like it is in the United States. It’s just that, in Canada, it is a little easier for the citizens’ elected representatives to over-rule the Judges than it is in the USA.

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Well thank you for your allusion to Francois Legault, our current " populist Pete leader here in Quebec. The problem is the Notwithstanding clause, which allows him to pass unconstitutional legislation.

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"There should be real consequences for governments ...."

Hmmmm.... real monetary consequences? Well, who provides the money? We, the people provide the money. Perhaps you wish to bankrupt the individual legislators who voted in favor of the "improper" legislation? Better yet, perhaps you should imprison - no, execute! - those legislators.

And who pays the legal costs of the plaintiffs? Why, the plaintiffs do. Who pays the legal costs of the government? We, the people do. So, in a very real sense, we the plaintiffs pay the costs to initiate a suit and we the plaintiffs pay the costs to defend the suit. Pretty stupid, no?

So, you start with a concept of the government should be responsible for unconstitutional laws but then you offer no way to provide for that responsibility to be met. A not very impressive column, all in all.

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looking forward to the (guest) rebuttal!

as Grizwald says in the comments, it seems this article was written to stoke rage. I was surprised not to see some form of "Lock her up!" (then again, the day is young)

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It is truly amazing how uninformed Canadians are concerning fundamental changes this federal gov’t is making. Charlatans and thieves!!

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What Canada needs is provincially elected judges . Each province gets 2 judges in the supreme court (provincial representation not population representation) Quebec currently gets 3 judges because of the Supreme Court Act.

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The hypothetical doesn’t sound too far fetched at all!

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deletedSep 7, 2023·edited Sep 7, 2023
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