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George Hariton's avatar

Our Supreme Court may or may not be politicized (I rather think not), but it definitely reflects our class structure -- a class structure that our betters keep denying. As my constitutional law professor pointed out many years ago. Supreme Court judges do not read the Toronto Sun or even the Toronto Star; they read the Globe and Mail. It is even worse with the francophone judges: they do not read le Journal de Montreal, they read Le Devoir. They have no idea what those other publications are on about.

They also undergo sensitivity training. I remember Freedom of Information request, around 2005, to disclose the materials being used. The request was denied.

As a result, it is no surprise that the judges have little idea, and are often surprised, by middle and working class Canadians.

I was around when the Charter was first put forward by Pierre Trudeau. There was fear among legal and political circles about what an activist court might do with it. In particular, many pointed to the United States, where the Warren Court was taking significant social actions (whether good or bad actions are a separate matter). No. no, we were told, we have a Parliamentary government tradition, and the supremacy of Parliament would be respected. And so it was, for the first decade or two. But no longer.

The situation is not improved by law school professors who spend their time inventing new rights to protect, but who never consider that past extensions might have been a mistake and should be reversed. Always expanding, never contracting.

The Notwithstanding Clause is an essential element of the bargain struck in 1982. Without it, there would have been no Charter. And the Clause is no bad thing. It allows different provinces to craft their own set of rules, independent from any "national" consensus. After all, that is the very essence of a confederation rather than a unitary state. Various provinces can try out different approaches. People who are uncomfortable with any given province's rules, are free to move to another province whose approach they prefer. They are free to move, the Notwithstanding Clause cannot be applied to mobility rights.

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Dean's avatar

Sean Fraser being Attorney General is not his fault, that rests with big brains Carney who put him there.

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