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.
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.
Grizwald: But would it not be better, more efficient and cheaper to deter the government? When I private entity is sued, is purpose not at least partly to deter future behaviour?
The point I am trying to make is that individuals, not "governments" make decisions. Punishing the government will have little to no effect on the individuals making the laws.
I feel the same about fining corporations billions of dollars while the CEOs gets off scott free. Fines to corporations punish the current shareholders and do not even affect the shareholders at the time the offence was committed. To stop any sort of organisational wrong doing, you need to punish the individuals who are responsible for the decision.
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.
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.
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
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?
***
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.
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.
"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.
Actually, Tom, if the authors are not capable of better, they probably should apply to become employed by the GOC as this column seems to put them right into the frame as qualified to draft stupid legislation.
"With the help of a talented network of lawyers, the CCF litigates against unconstitutional and unlawful government action" and "[y]our donation supports [their] team of talented lawyers...".
I surmise you won't be donating and the GOC may not be amenable to hiring? Does that increase the monetary motivation for a rewrite? Those are a rhetorical and a facetious question. No need to answer.
Perhaps a consequence could be the invocation of an immediate election by the courts in order that the citizens are permitted to determine the fate of a government inclined toward passing illegal or unconstitutional law.
Ab, your suggestion does have a surface appeal but, but, but.
Suppose the legislation in question was passed in year three of the government then in year four there was an election with the incumbent rascals getting a much reduced plurality but still in power. The law suit starts in year five and takes until year six to simply reach court then on to appeals, etc. so that it finally reaches the Supremes (oh, for Diana Ross to be one of them!) in, say, year nine and the ultimate decision is rendered in year ten when the original government and PM are no longer in power and a different set of rascals, perhaps of the same party, perhaps not, are pulling the levers of unconstitutionality.
[Remember, no government wants the courts to tell it what to do or not do so they would oppose, oppose, oppose on the court case.]
So, as a practical matter, how does your suggestion help?
Sorry to rain on your idea but, really, this is a crazy area to try to find a fix.
You're good Ken. I really like your Diana Ross lust. Imagine if every Supreme Court ruling was presented in song in two languages? "Someday We'll Be Together" because "I Hear A Symphony".
Hmm… do the provinces, especially Quebec, not routinely invoke the notwithstanding clause when they feel affronted by federal laws they feel infringe upon their particular powers or responsibilities? A mechanism whereby the authority of a government could be challenged by the court and its legitimacy decided by the electorate in an extraordinary situation is surely preferable to the interminable process you describe… Note that the current government immediately repealed its invocation of the Emergencies Act when its authority was questioned in the Senate… but the system of ‘checks and balances’ we currently have do not prevent or even deter the writing of bad law, or corruption or conscious ethical failure by government. Perhaps a threat of immediate accountability might, if it could be installed in the Constitution meeting the necessary criteria of the amending formula.
Yes, Quebec has used the NWC more than any other jurisdiction, ostensibly because of it's "unique" nature. Whether you agree with that or not ...
Other provinces have dipped their toes into the NWC water but it is not widely used and is, typically, looked upon with great disdain in the other provinces.
As for the feds terminating the Emergencies Act when the Senate started "acting up," coincidence, you know; the fact that the Senate said/asked/demanded was totally unrelated. And I have some land to sell you if you believe that, but the fact is, that was simply politics on both sides of the government, Commons and Senate.
As for checks and balances, yeah, they exist in theory but then in reality they only exist if someone in power wants to exercise them and, again, politics rears it's ugly head.
"... a threat of immediate accountability ..." What did you have in mind? A summary execution? I might approve of that. Until I didn't, of course. But, really, any mechanism of accountability depends on honesty and integrity so we are hooped from the get go.
Ab, yes, the provinces (and the feds) can use the power of the Notwithstanding Clause. There are a some problems with that "solution," however.
The first problem, and it is a big one, is that the NWC applies only in limited circumstances, that is, where the particular issue relates to the Charter of Rights and Freedoms, for example, freedom of speech, freedom of association. So, if the feds stepped into the provincial jurisdiction of my province, Alberta, and (boo! hiss!) tried to legislate in the realm of natural resources, the NWC would have absolutely no effect.
Another problem is that, yes, a provincial government can use the NWC but, typically, it is used to "justify" provincial legislation. If the feds passed a law that abridged, oh, say, freedom of association or freedom of security of the person (which I would argue they did during Covid by not allowing people to go to GOC jobs unless vaccinated, etc., etc.) then the feds could (and did!) argue that this abridgement was "reasonable in the circumstances." [Needless to say, I disagreed. Vehemently.] The damned courts agreed with the feds.
Yet another problem is that, say the feds passed a law that a province disliked but the feds used the NWC (to my knowledge the feds have never used the NWC). In that situation it seems to me that no province could do anything about it. [Possibly a counter NWC piece of legislation? Weird.]
There are yet other problems that I can envision but, I think you get the idea: the NWC is a delicate piece of legislative power and can only be applied in limited circumstances.
Oh, and yet another: the NWC can, indeed, be used in certain circumstances but it has application for only five years, at which time it has to be passed again. So, if a different government was in power ....
The foregoing is my best understanding of matters but I am neither a lawyer nor a constitutional scholar, merely a retired accountant.
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)
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.
Provincially elected judges don’t work for me Carole, though I commend you for searching for improvements. When you are elected, no matter how accomplished of a professional you are, the next election will always lurk in the back of your mind. Unintended consequences could be a duplication of inter-provincial squabbling, tactics, and strategy, and another avenue for the courts to be put into disrepute. Judges have to remain above the fray in order to think clearly and for us to buy in.
Maybe there is another way? How about rotating judges every five, seven, or perhaps ten, years to another province? They’d get grass roots experience in each province, be invigorated after every career move, and broaden, share and freshen perspectives on many fronts. There’s nothing as valuable as seeing, and experiencing, things with your own eyes. It might also serve as a way to bond Canada more strongly. The different system in Quebec complicates the movement and bonding. Creative types can come up with a solution.
I understand the concern about unintended consequences, and I am going to digress a bit here. It seems that our entire democratic process suffers due to angst about getting re-elected.
Maybe the solution is to have an innovative look at our constitution and not have as much wiggle room where judges can interpret the law in line with their ideologies (political or otherwise). I guess the question is whether we want judges to be the folks who interpret Canadian laws or our elected representatives be the folks who definitively create and define penalties associated with the laws that have been created.
Provinces and territories have different priorities. I believe Canada as a federation needs equal provincial representation, not just population representation. This might be more easily accomplished with supreme court judges rather than trying to balance our parliament or senate. Rotating judges could form a part of the solution. I am not sure about the rest of the solution.
Appreciate your points Carole. Especially “... that our entire democratic process suffers due to angst about getting re-elected”. The current government, as all do to some extent, governs to get re-elected; but is detrimentally more extreme about it. It is our fault for imprinting that outlier strategy by voting them in past their due date. I’m actually ok with that angst because it is preferable for politicians to have fear of the electorate than the converse. Think communism and facism vs. democracy in the context of fear’s direction.
In the perfect theoretical world, judges are not supposed to interpret the law. They are to apply it exactly as codified and make rational decisions to settle disputes when the codified law is not clearly written and can’t be straightforwardly applied. That produces the common law to prevent arbitrariness while the lawmakers, the elected politicians, repair the codified law. Except the politicians are always too busy with political life to keep the codified law cleaned up and modernized, and are busy with piling on more ill prepared codified law to facilitate their reelection. The whole library is so big and complicated now that judges have no choice but to dabble in interpretation. I still have faith in the legal system because it has mostly well intentioned players in it and because the alternative is unthinkable; but not enough of it to risk my meager savings to its grasp.
I vacillate back and forth on my thoughts about electoral reform. Tradition does count for a lot because it provides a solid historical foundation that must be respected. I guess what I am saying is that if it isn’t badly broken then don’t fix it because there are a myriad of less theoretical and more practical problems for government to work on.
In an oxymoronic way we are responsible for lawmakers’ overload because we want everything, and better yet at the expense of a neighbouring province or the federal government, instead of following John F. Kennedy’s “[a]sk not what your country can do for you – ask what you can do for your country”. Do we want to live together as Canadians or not? If we do, we had best show it.
I agree with your statement “Tradition does count for a lot because it provides a solid historical foundation that must be respected.” In fact, I agree with what you have said but I feel like a lot of things in Canada are broken, not everything, but enough that we (Canadians) should examine what is wrong and have non-political and non-ideological solutions that make Canada a safe and prosperous country.
Trust in the main stream media, our politicians our bank and our justice system has eroded.
The media (notably CBC) have lied to us about COVID and the Trucker Convoy and who knows what else. (I suspect that the CBC would not like the word lied but I don’t like spinning words).
Members of parliament have lied to us. (Marco Mendicino, Freeland, Trudeau and others). These are people who want us to follow rules, and they have trouble with simple truth.
The Bank of Canada’s Tiff Macklem’s predictions have been less than accurate and he is suspect in printing money rather than curbing inflation. We pay Tiff a lot of money to keep our dollar strong.
The justice system is failing victims. Justice in Canada is no longer blind. Lich and Barber appear to have been political prisoners (in Canada – political prisoners!). How can the justice system even suggest that they should spend 10 years in prison? Weigh 10 years with the following sentences:
Eight years for the beating death of a toddler
Seven years for beating and stabbing a Good Samaritan’s baby
6.5 years for viciously assaulting twin babies, killing one
I will stop there, but I could go on and on.
It would be nice if there was a group that could study each of the issues that are causing angst in Canada and come up with very good and balanced solutions that are province specific, yet work with the rest of Canada. Then the non-political, non-ideological solutions could be put into practice. I think that starting with justice would be a good start.
Carole, your points are all so thought provoking that I can’t stop thinking about them.
Your main thrust is reform of the justice system so that we get far more justice than the current creeping injustice. If the justice system is strengthened then the political system, the free press third pillar of democracy, and the free enterprise institutions, all have to pull up their boot straps and fall into the desired line or suffer legal consequences. (As an aside, I can’t get away from desire being the cause of all suffering.) Am I interpreting your thrust properly? Or am I putting words into your mouth?
You also want balanced solutions. That is exactly what I want. I abhor extremism of every kind. Bad extremism can be epistemically dispensed with quickly because it is simply evil. Well intentioned extremism is a more difficult area because even though the intent may be noble the unintended consequences may not be.
We used to settle differences at twenty paces with pistols, and may have moved on to nuclear weapons. Somebody won (wins). Somebody lost (loses). Or nothing happened (happens). If you lost there was (lose there is) no avenue for appeal unless you lived. If nothing happened both parties cooled down and gave up or did it all over again. Justice has come a long way from that, and it has a long journey ahead of it.
The justice system can’t be the be all and end all though. Humans are frail and vain. Make the justice system disproportionately stronger than the other two pillars of democracy and you risk creeping extremism.
Build (raise) good people (citizens) and you are more likely to have good institutions and three functioning pillars of democracy. That is illustrated by the implosion of the bricks and mortar legacy media. Its well intentioned journalists are reinventing the third pillar of democracy. (Mind you one has to eat before philosophizing, investigating and critiquing; so even here there is a subtle conflict of interest.)
“Oh what a tangled web we weave.” The modern web didn’t even exist at this quote’s creation!
If as a country, we do not judge every case on an equal basis it seems obvious that things will go wrong.
Even good intentions (as you pointed out) can have unintended consequences. Canadian lawyers and their clients, relying on precedent and/or common or civil law, cannot have reasonable certainty regarding to the outcome of their cases. The opinions of an increasingly activist court with radical leftist (“progressive”) agenda is not what justice should aspire towards. The courts should simply seek to dispense (and to quote you from your previous comment) “[justice] exactly as codified and make rational decisions to settle disputes when the codified law is not clearly written and can’t be straightforwardly applied.”
Again, I am going to digress. I am an atheist who strongly believes that whatever faith or religious belief a person holds is none of my business nor do I have the depth to judge that faith. When our government determined that we needed a bill to stop Islamophobia I pondered why we needed that bill and if we did need that bill why it wasn’t strengthened to include all religions. In the end, I determined that the government once again had picked winners and losers. (likely based on ‘buying’ the Muslim vote). A pretty bad bill really.
So, once again to quote your comment…
If the justice system is strengthened then the political system, the free press third pillar of democracy, and the free enterprise institutions, all have to pull up their boot straps and fall into the desired line or suffer legal consequences.
Thanks, Tom, for this great conversation and great comments. Take care.
Hi Carole, I’m taking a break just to cheer you up.
We are Canadians. We will fix this one step at a time. We always have.
I wrote a detailed response to each of your points and then deleted it. Why? I think you are looking at a half empty glass while I am looking at a half full glass. My son always says immigrants like me are the only ones left who think Canada is great because we know how much worse things can be. That’s extreme in all aspects; but it makes me laugh. I hope you do too.
Please remember that most of the problems we currently have are not new. We’ve had many of them before and sometimes in more extreme forms. We survived. We adapted. We also cashed in our Lucky Charms. Amusingly we also survived Lucky Charms. It was a very sweet cereal.
The Canadian Constitution Foundation is ..... . You may fill in the blanks after you Google them and draw your own conclusions, that I have every confidence in after "getting to know your ethos" via The Line.
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.
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.
Grizwald: But would it not be better, more efficient and cheaper to deter the government? When I private entity is sued, is purpose not at least partly to deter future behaviour?
The point I am trying to make is that individuals, not "governments" make decisions. Punishing the government will have little to no effect on the individuals making the laws.
I feel the same about fining corporations billions of dollars while the CEOs gets off scott free. Fines to corporations punish the current shareholders and do not even affect the shareholders at the time the offence was committed. To stop any sort of organisational wrong doing, you need to punish the individuals who are responsible for the decision.
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.
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.
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
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?
***
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.
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.
That's a good point and true.
I was referring to the general idea of unconstitutional legislation in other areas
Thanks, at least Legault can't do that.
"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.
Reading through all the comments it appears we voted "... a not very impressive column... ".
That election only cost us a subscription to The Line. That's a hint, to the authors, already alluded to in the comment thread.
I hope they take another stab at a revised version because I'm sure they are capable of better.
Actually, Tom, if the authors are not capable of better, they probably should apply to become employed by the GOC as this column seems to put them right into the frame as qualified to draft stupid legislation.
"With the help of a talented network of lawyers, the CCF litigates against unconstitutional and unlawful government action" and "[y]our donation supports [their] team of talented lawyers...".
I surmise you won't be donating and the GOC may not be amenable to hiring? Does that increase the monetary motivation for a rewrite? Those are a rhetorical and a facetious question. No need to answer.
Perhaps a consequence could be the invocation of an immediate election by the courts in order that the citizens are permitted to determine the fate of a government inclined toward passing illegal or unconstitutional law.
Ab, your suggestion does have a surface appeal but, but, but.
Suppose the legislation in question was passed in year three of the government then in year four there was an election with the incumbent rascals getting a much reduced plurality but still in power. The law suit starts in year five and takes until year six to simply reach court then on to appeals, etc. so that it finally reaches the Supremes (oh, for Diana Ross to be one of them!) in, say, year nine and the ultimate decision is rendered in year ten when the original government and PM are no longer in power and a different set of rascals, perhaps of the same party, perhaps not, are pulling the levers of unconstitutionality.
[Remember, no government wants the courts to tell it what to do or not do so they would oppose, oppose, oppose on the court case.]
So, as a practical matter, how does your suggestion help?
Sorry to rain on your idea but, really, this is a crazy area to try to find a fix.
You're good Ken. I really like your Diana Ross lust. Imagine if every Supreme Court ruling was presented in song in two languages? "Someday We'll Be Together" because "I Hear A Symphony".
Hmm… do the provinces, especially Quebec, not routinely invoke the notwithstanding clause when they feel affronted by federal laws they feel infringe upon their particular powers or responsibilities? A mechanism whereby the authority of a government could be challenged by the court and its legitimacy decided by the electorate in an extraordinary situation is surely preferable to the interminable process you describe… Note that the current government immediately repealed its invocation of the Emergencies Act when its authority was questioned in the Senate… but the system of ‘checks and balances’ we currently have do not prevent or even deter the writing of bad law, or corruption or conscious ethical failure by government. Perhaps a threat of immediate accountability might, if it could be installed in the Constitution meeting the necessary criteria of the amending formula.
A few further thoughts.
Yes, Quebec has used the NWC more than any other jurisdiction, ostensibly because of it's "unique" nature. Whether you agree with that or not ...
Other provinces have dipped their toes into the NWC water but it is not widely used and is, typically, looked upon with great disdain in the other provinces.
As for the feds terminating the Emergencies Act when the Senate started "acting up," coincidence, you know; the fact that the Senate said/asked/demanded was totally unrelated. And I have some land to sell you if you believe that, but the fact is, that was simply politics on both sides of the government, Commons and Senate.
As for checks and balances, yeah, they exist in theory but then in reality they only exist if someone in power wants to exercise them and, again, politics rears it's ugly head.
"... a threat of immediate accountability ..." What did you have in mind? A summary execution? I might approve of that. Until I didn't, of course. But, really, any mechanism of accountability depends on honesty and integrity so we are hooped from the get go.
Ab, yes, the provinces (and the feds) can use the power of the Notwithstanding Clause. There are a some problems with that "solution," however.
The first problem, and it is a big one, is that the NWC applies only in limited circumstances, that is, where the particular issue relates to the Charter of Rights and Freedoms, for example, freedom of speech, freedom of association. So, if the feds stepped into the provincial jurisdiction of my province, Alberta, and (boo! hiss!) tried to legislate in the realm of natural resources, the NWC would have absolutely no effect.
Another problem is that, yes, a provincial government can use the NWC but, typically, it is used to "justify" provincial legislation. If the feds passed a law that abridged, oh, say, freedom of association or freedom of security of the person (which I would argue they did during Covid by not allowing people to go to GOC jobs unless vaccinated, etc., etc.) then the feds could (and did!) argue that this abridgement was "reasonable in the circumstances." [Needless to say, I disagreed. Vehemently.] The damned courts agreed with the feds.
Yet another problem is that, say the feds passed a law that a province disliked but the feds used the NWC (to my knowledge the feds have never used the NWC). In that situation it seems to me that no province could do anything about it. [Possibly a counter NWC piece of legislation? Weird.]
There are yet other problems that I can envision but, I think you get the idea: the NWC is a delicate piece of legislative power and can only be applied in limited circumstances.
Oh, and yet another: the NWC can, indeed, be used in certain circumstances but it has application for only five years, at which time it has to be passed again. So, if a different government was in power ....
The foregoing is my best understanding of matters but I am neither a lawyer nor a constitutional scholar, merely a retired accountant.
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)
Richard MacDowell has helpfully contributed 2 hours after your post. Please have a look.
It is truly amazing how uninformed Canadians are concerning fundamental changes this federal gov’t is making. Charlatans and thieves!!
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.
Provincially elected judges don’t work for me Carole, though I commend you for searching for improvements. When you are elected, no matter how accomplished of a professional you are, the next election will always lurk in the back of your mind. Unintended consequences could be a duplication of inter-provincial squabbling, tactics, and strategy, and another avenue for the courts to be put into disrepute. Judges have to remain above the fray in order to think clearly and for us to buy in.
Maybe there is another way? How about rotating judges every five, seven, or perhaps ten, years to another province? They’d get grass roots experience in each province, be invigorated after every career move, and broaden, share and freshen perspectives on many fronts. There’s nothing as valuable as seeing, and experiencing, things with your own eyes. It might also serve as a way to bond Canada more strongly. The different system in Quebec complicates the movement and bonding. Creative types can come up with a solution.
Thoughts?
I understand the concern about unintended consequences, and I am going to digress a bit here. It seems that our entire democratic process suffers due to angst about getting re-elected.
Maybe the solution is to have an innovative look at our constitution and not have as much wiggle room where judges can interpret the law in line with their ideologies (political or otherwise). I guess the question is whether we want judges to be the folks who interpret Canadian laws or our elected representatives be the folks who definitively create and define penalties associated with the laws that have been created.
Provinces and territories have different priorities. I believe Canada as a federation needs equal provincial representation, not just population representation. This might be more easily accomplished with supreme court judges rather than trying to balance our parliament or senate. Rotating judges could form a part of the solution. I am not sure about the rest of the solution.
Appreciate your points Carole. Especially “... that our entire democratic process suffers due to angst about getting re-elected”. The current government, as all do to some extent, governs to get re-elected; but is detrimentally more extreme about it. It is our fault for imprinting that outlier strategy by voting them in past their due date. I’m actually ok with that angst because it is preferable for politicians to have fear of the electorate than the converse. Think communism and facism vs. democracy in the context of fear’s direction.
In the perfect theoretical world, judges are not supposed to interpret the law. They are to apply it exactly as codified and make rational decisions to settle disputes when the codified law is not clearly written and can’t be straightforwardly applied. That produces the common law to prevent arbitrariness while the lawmakers, the elected politicians, repair the codified law. Except the politicians are always too busy with political life to keep the codified law cleaned up and modernized, and are busy with piling on more ill prepared codified law to facilitate their reelection. The whole library is so big and complicated now that judges have no choice but to dabble in interpretation. I still have faith in the legal system because it has mostly well intentioned players in it and because the alternative is unthinkable; but not enough of it to risk my meager savings to its grasp.
I vacillate back and forth on my thoughts about electoral reform. Tradition does count for a lot because it provides a solid historical foundation that must be respected. I guess what I am saying is that if it isn’t badly broken then don’t fix it because there are a myriad of less theoretical and more practical problems for government to work on.
In an oxymoronic way we are responsible for lawmakers’ overload because we want everything, and better yet at the expense of a neighbouring province or the federal government, instead of following John F. Kennedy’s “[a]sk not what your country can do for you – ask what you can do for your country”. Do we want to live together as Canadians or not? If we do, we had best show it.
Hi Tom:
I agree with your statement “Tradition does count for a lot because it provides a solid historical foundation that must be respected.” In fact, I agree with what you have said but I feel like a lot of things in Canada are broken, not everything, but enough that we (Canadians) should examine what is wrong and have non-political and non-ideological solutions that make Canada a safe and prosperous country.
Trust in the main stream media, our politicians our bank and our justice system has eroded.
The media (notably CBC) have lied to us about COVID and the Trucker Convoy and who knows what else. (I suspect that the CBC would not like the word lied but I don’t like spinning words).
Members of parliament have lied to us. (Marco Mendicino, Freeland, Trudeau and others). These are people who want us to follow rules, and they have trouble with simple truth.
The Bank of Canada’s Tiff Macklem’s predictions have been less than accurate and he is suspect in printing money rather than curbing inflation. We pay Tiff a lot of money to keep our dollar strong.
The justice system is failing victims. Justice in Canada is no longer blind. Lich and Barber appear to have been political prisoners (in Canada – political prisoners!). How can the justice system even suggest that they should spend 10 years in prison? Weigh 10 years with the following sentences:
Eight years for the beating death of a toddler
Seven years for beating and stabbing a Good Samaritan’s baby
6.5 years for viciously assaulting twin babies, killing one
I will stop there, but I could go on and on.
It would be nice if there was a group that could study each of the issues that are causing angst in Canada and come up with very good and balanced solutions that are province specific, yet work with the rest of Canada. Then the non-political, non-ideological solutions could be put into practice. I think that starting with justice would be a good start.
Carole, your points are all so thought provoking that I can’t stop thinking about them.
Your main thrust is reform of the justice system so that we get far more justice than the current creeping injustice. If the justice system is strengthened then the political system, the free press third pillar of democracy, and the free enterprise institutions, all have to pull up their boot straps and fall into the desired line or suffer legal consequences. (As an aside, I can’t get away from desire being the cause of all suffering.) Am I interpreting your thrust properly? Or am I putting words into your mouth?
You also want balanced solutions. That is exactly what I want. I abhor extremism of every kind. Bad extremism can be epistemically dispensed with quickly because it is simply evil. Well intentioned extremism is a more difficult area because even though the intent may be noble the unintended consequences may not be.
We used to settle differences at twenty paces with pistols, and may have moved on to nuclear weapons. Somebody won (wins). Somebody lost (loses). Or nothing happened (happens). If you lost there was (lose there is) no avenue for appeal unless you lived. If nothing happened both parties cooled down and gave up or did it all over again. Justice has come a long way from that, and it has a long journey ahead of it.
The justice system can’t be the be all and end all though. Humans are frail and vain. Make the justice system disproportionately stronger than the other two pillars of democracy and you risk creeping extremism.
Build (raise) good people (citizens) and you are more likely to have good institutions and three functioning pillars of democracy. That is illustrated by the implosion of the bricks and mortar legacy media. Its well intentioned journalists are reinventing the third pillar of democracy. (Mind you one has to eat before philosophizing, investigating and critiquing; so even here there is a subtle conflict of interest.)
“Oh what a tangled web we weave.” The modern web didn’t even exist at this quote’s creation!
Hi Tom:
Yes, you have correctly interpreted of my intent.
If as a country, we do not judge every case on an equal basis it seems obvious that things will go wrong.
Even good intentions (as you pointed out) can have unintended consequences. Canadian lawyers and their clients, relying on precedent and/or common or civil law, cannot have reasonable certainty regarding to the outcome of their cases. The opinions of an increasingly activist court with radical leftist (“progressive”) agenda is not what justice should aspire towards. The courts should simply seek to dispense (and to quote you from your previous comment) “[justice] exactly as codified and make rational decisions to settle disputes when the codified law is not clearly written and can’t be straightforwardly applied.”
Again, I am going to digress. I am an atheist who strongly believes that whatever faith or religious belief a person holds is none of my business nor do I have the depth to judge that faith. When our government determined that we needed a bill to stop Islamophobia I pondered why we needed that bill and if we did need that bill why it wasn’t strengthened to include all religions. In the end, I determined that the government once again had picked winners and losers. (likely based on ‘buying’ the Muslim vote). A pretty bad bill really.
So, once again to quote your comment…
If the justice system is strengthened then the political system, the free press third pillar of democracy, and the free enterprise institutions, all have to pull up their boot straps and fall into the desired line or suffer legal consequences.
Thanks, Tom, for this great conversation and great comments. Take care.
Hi Carole, I’m taking a break just to cheer you up.
We are Canadians. We will fix this one step at a time. We always have.
I wrote a detailed response to each of your points and then deleted it. Why? I think you are looking at a half empty glass while I am looking at a half full glass. My son always says immigrants like me are the only ones left who think Canada is great because we know how much worse things can be. That’s extreme in all aspects; but it makes me laugh. I hope you do too.
Please remember that most of the problems we currently have are not new. We’ve had many of them before and sometimes in more extreme forms. We survived. We adapted. We also cashed in our Lucky Charms. Amusingly we also survived Lucky Charms. It was a very sweet cereal.
May the wind always be at your back.
Thanks again Carole. It will take me a while to address all your points. I'm swamped with chores today. I'll try to get back to you this evening.
The hypothetical doesn’t sound too far fetched at all!
The Canadian Constitution Foundation is ..... . You may fill in the blanks after you Google them and draw your own conclusions, that I have every confidence in after "getting to know your ethos" via The Line.
Do you prefer one lump or two of sugar in your tea? I'll just virtually send more. An open mind needs lots of calories for all the hard work involved.