If the judiciary were to have final say it would overrule the duties and responsibilities of an elected legislature. It would also lead to a situation where political and ideological forces might align to appoint a judiciary which has explicit biases and imposes those biases without consideration for the voting public’s opinion or preference.
One thing Canada and the US have in common is the craven cowardice of its elected parliamentary representatives. Especially when there is a financial reward (gold plated pensions) associated with reelection. And the odds of being reekected are better if you can avoid controversy by actually making decisions which will favor one group of electors over another.
I remember one US legislator 20 or 30 years ago complaining about Congress shirking its responsibilities thereby “passing the buck” to the Supreme Court. And what the US does is usually copied by Canada (out of penis envy 😆) allowing for time to translate to French.
It’s seems popular in certain quarters to say that the current US Administration is “packing the court” with conservative justices. In the last year of his reign Justin Trudeau decreed that all future supreme court justices have to be bilingual in English and French without the use or presence of a translator. Since virtually the only place that produces judges with that qualification is Quebec, if that isn’t packing I don’t know what is. Canada will now have a ten percent “tail” of 4 million or so “old stump”/“pure wool” French Quebeckers wagging a ninety percent non-French “dog”. So in the future, say goodbye to any hope of being tried by your peers if you are one of the ninety percent.
> In the last year of his reign Justin Trudeau decreed that all future supreme court justices have to be bilingual in English and French without the use or presence of a translator.
The thing about those kinds of declarations is that they don't bind anything. The next Prime Minister can declare a completely different selection procedure. Given that, I think the main purpose of these declarations is to add a false veneer of impartiality to what is ultimately entirely up to the Prime Minister's discretion.
Good point Andrew. I’ll have to look up to check how binding the order was. But to me this is illustrative of the totalitarian powers that Canadian PMs have. Looking south Supreme Court Justices have to be nominated and approved by an elected body (the Senate) not just appointed with no recourse. But Canadians haven’t seemed to mind so far.
Our way is better. MUCH better. That's why we don't mind.
And our Prime Ministers only have this power for as long as they don't can "maintain the confidence of the house" which is a fancy of way of saying "until MPs decide that Canada needs a new Prime Minister. The reason why Justin Trudeau was able to hang on for so long was because a majority of MPs insisted that he should stay on as Prime Minister. It was a bad call, but they made it... over and over again.
No system can prevent bad decisions if people are intent on making them.
Perhaps I could have expressed it differently. My view is that whatever the mechanism for power retention, Canadian PMs have total absolute power over legislation, administration and it seems, proactively judicial as well. This to me is the essence of dictatorship and tyranny over the citizen subjects.
Better or not, With a two year term for Congress, 6 years for Senate with 1/3 up every 2 years, 4 year terms and a 2 term limit for the Presidency, at least US voters don’t have to endure bad choices for what can seem like an eternity.
My understanding is that Justin stayed in power so long is that under party rules he didn’t have to face any leadership review unlike the main opposition parties.
> My view is that whatever the mechanism for power retention, Canadian PMs have total absolute power over legislation, administration and it seems, proactively judicial as well.
They don't. They have that power as long as the house gives it to them. Yes, that power is almost always given... because it works for MPs. But you can't forget where the power actually lies.
The reason Mr. Trudeau stayed in power so long isn't the lack of review... it's because NDP and LPC MPs repeatedly decided to keep him as Prime Minister. They did that again and again. It's a choice. Not a lack of power. (Maybe a lack of spine). Those repeated decisions by MPs kept Mr. Trudeau in power until their view shifted.. and then Mr. Trudeau quit as he knew what was coming.
> at least US voters don’t have to endure bad choices for what can seem like an eternity.
Oh? And what exactly is their mechanism for getting rid of a horrendous President or a Supreme Court judge? Because I bet both sides of the current divide of theirs would agree that one of the last two Presidents was grossly incompetent and terrible and should have been removed but they couldn't remove him... they just don't agree on which it is.
Now they DO have a mechanism... it's more complicated and less functional than ours. It took longer than I would have liked, but our system forced out a bad Prime Minister.. theirs has utterly failed to do that and no one down there has any confidence that it will in future... again, they just don't agree which one should have been removed.
When the PM signs nomination papers and therefore has a major influence on whether or not and how much of a pension an MP gets,it’s is a great tool to ensure toadyism. You have a good point but it’s much stronger in a minority situation than a majority one.
The 25th amendment of the US constitution allows for the removal of the President if the majority of the Cabinet plus the VP agree that the president is unable to perform his duties. That is only 8 of the 15 cabinet secretaries. A lot easier to get 8 people to agree for the good of the country than 70 or thereabouts ruling party MPs.
And when you have elections every 2 years it’s a great mechanism to keep the damage down. Unlike the Canadian system where the election timing can be made when polls are favorable to the party in power
The term refers to a jury of your peers, not the judge. In addition, his ruling pertains to Supreme Court judges only. Still questionable, but the problem you purport it to be.
Yes I was a bit sloppy in referring to a jury of your peers thanks for the catch. But given the huge difference in culture and moral values between the Quebec French and the rest of Canada the perception of fairness in the judicial system will move from slim to none.
That the Liberals are even attempting this shows that they think they have something that they can live with in the bag. They are treating the Supreme Court as an extension of the Liberal establishment (big and small L).
As for their blessed Charter, another extension of their establishment, it is so virtuous that they didn't even have the guts to put it up for a referendum.
Had they put the adoption of the Charter a referendum at the time, it would have been adopted with a large majority. The problem is not the Charter per se, but they way that the courts have interpreted it.
If the SCC rules in favour of limiting the NWC, then there is a constitutional crisis. Dr. Carney isn't up to it.
If the SCC rules against, or makes no decision, the LPC has egg on its face and still owns the backlash. Majority government in 2026? Less likely by the week.
Growing up I never thought I would see a growing "Fuck the Charter" movement (for lack of a better term). It always seemed like such an unalloyed good. I guess this inevitably happens when it stops protecting some groups and absurdly favours others.
Yes. More and more people realize how selectively the "Charter" is applied, and how the courts perverted the original purpose. The "Charter" is useless and often destructive if it is interpreted without common sense. I do not think we need it. The class which brought it into disrepute and into disuse are the "Liberals", the political front for the Laurentian Corruptocrats.
I have been of the opinion that Canada’s needs the Supreme Court in its current form to balance the legislative branch if that branch proposes popular legislation that abrogates the rights of some Canadians. He rightly points out that the American example of the Supreme Court as final arbiter is not encouraging.
Though I am not able to cite many examples, our Supreme Court does seem to have a habit of creating new law in the face of judicial precedents and legislation. Our only response is to propose new legislation that we hope meets with the favour of the Court. Of course, what typically happens is that our legislators throw their hands up in despair, claiming that there is nothing that they can do, the Court has ruled. Perhaps the balance between the judicial and legislative branches, as Mr. Kennedy advocates, is a better method.
It would be easy to think that the Supreme Court operates like that - a welcome check on government power over the individual. Problem is that the Charter and the Courts don't really operate that way. They create new rights for niche identity groups and the rest of us have to live with it. They carve us into groups with different right based on race, gender, language, and income. They prioritize criminals over the rest of society. Seldom do they push back against government overreach that affects everyone, or champion real universal individual rights like property rights (e.g. gun confiscation, private healthcare) or the right to be left the hell alone (e.g. Covid mandates). I can say with confidence that rulings essentially never go in a way that I personally benefit from, but instead I am always in the group that has to shoulder the burden of new "rights" for others.
I began reading your argument with a view to pillorying what you wrote.
I must admit, though, that after finishing this article, I came away with a more open view about the merits of S 33 (the Notwithstanding Clause).
What clinched it for me was your own admission regarding the appalling nature of the Quebec government's rationale for using S 33 (to cover for its illiberal law on religious symbols). That suggested to me a view formed in part from the same concerns I've long had about giving politicians (particularly provincial politicians in the Canadian context) such powers.
If the judiciary were to have final say it would overrule the duties and responsibilities of an elected legislature. It would also lead to a situation where political and ideological forces might align to appoint a judiciary which has explicit biases and imposes those biases without consideration for the voting public’s opinion or preference.
One thing Canada and the US have in common is the craven cowardice of its elected parliamentary representatives. Especially when there is a financial reward (gold plated pensions) associated with reelection. And the odds of being reekected are better if you can avoid controversy by actually making decisions which will favor one group of electors over another.
I remember one US legislator 20 or 30 years ago complaining about Congress shirking its responsibilities thereby “passing the buck” to the Supreme Court. And what the US does is usually copied by Canada (out of penis envy 😆) allowing for time to translate to French.
It’s seems popular in certain quarters to say that the current US Administration is “packing the court” with conservative justices. In the last year of his reign Justin Trudeau decreed that all future supreme court justices have to be bilingual in English and French without the use or presence of a translator. Since virtually the only place that produces judges with that qualification is Quebec, if that isn’t packing I don’t know what is. Canada will now have a ten percent “tail” of 4 million or so “old stump”/“pure wool” French Quebeckers wagging a ninety percent non-French “dog”. So in the future, say goodbye to any hope of being tried by your peers if you are one of the ninety percent.
> In the last year of his reign Justin Trudeau decreed that all future supreme court justices have to be bilingual in English and French without the use or presence of a translator.
The thing about those kinds of declarations is that they don't bind anything. The next Prime Minister can declare a completely different selection procedure. Given that, I think the main purpose of these declarations is to add a false veneer of impartiality to what is ultimately entirely up to the Prime Minister's discretion.
Good point Andrew. I’ll have to look up to check how binding the order was. But to me this is illustrative of the totalitarian powers that Canadian PMs have. Looking south Supreme Court Justices have to be nominated and approved by an elected body (the Senate) not just appointed with no recourse. But Canadians haven’t seemed to mind so far.
Our way is better. MUCH better. That's why we don't mind.
And our Prime Ministers only have this power for as long as they don't can "maintain the confidence of the house" which is a fancy of way of saying "until MPs decide that Canada needs a new Prime Minister. The reason why Justin Trudeau was able to hang on for so long was because a majority of MPs insisted that he should stay on as Prime Minister. It was a bad call, but they made it... over and over again.
No system can prevent bad decisions if people are intent on making them.
Perhaps I could have expressed it differently. My view is that whatever the mechanism for power retention, Canadian PMs have total absolute power over legislation, administration and it seems, proactively judicial as well. This to me is the essence of dictatorship and tyranny over the citizen subjects.
Better or not, With a two year term for Congress, 6 years for Senate with 1/3 up every 2 years, 4 year terms and a 2 term limit for the Presidency, at least US voters don’t have to endure bad choices for what can seem like an eternity.
My understanding is that Justin stayed in power so long is that under party rules he didn’t have to face any leadership review unlike the main opposition parties.
> My view is that whatever the mechanism for power retention, Canadian PMs have total absolute power over legislation, administration and it seems, proactively judicial as well.
They don't. They have that power as long as the house gives it to them. Yes, that power is almost always given... because it works for MPs. But you can't forget where the power actually lies.
The reason Mr. Trudeau stayed in power so long isn't the lack of review... it's because NDP and LPC MPs repeatedly decided to keep him as Prime Minister. They did that again and again. It's a choice. Not a lack of power. (Maybe a lack of spine). Those repeated decisions by MPs kept Mr. Trudeau in power until their view shifted.. and then Mr. Trudeau quit as he knew what was coming.
> at least US voters don’t have to endure bad choices for what can seem like an eternity.
Oh? And what exactly is their mechanism for getting rid of a horrendous President or a Supreme Court judge? Because I bet both sides of the current divide of theirs would agree that one of the last two Presidents was grossly incompetent and terrible and should have been removed but they couldn't remove him... they just don't agree on which it is.
Now they DO have a mechanism... it's more complicated and less functional than ours. It took longer than I would have liked, but our system forced out a bad Prime Minister.. theirs has utterly failed to do that and no one down there has any confidence that it will in future... again, they just don't agree which one should have been removed.
When the PM signs nomination papers and therefore has a major influence on whether or not and how much of a pension an MP gets,it’s is a great tool to ensure toadyism. You have a good point but it’s much stronger in a minority situation than a majority one.
The 25th amendment of the US constitution allows for the removal of the President if the majority of the Cabinet plus the VP agree that the president is unable to perform his duties. That is only 8 of the 15 cabinet secretaries. A lot easier to get 8 people to agree for the good of the country than 70 or thereabouts ruling party MPs.
And when you have elections every 2 years it’s a great mechanism to keep the damage down. Unlike the Canadian system where the election timing can be made when polls are favorable to the party in power
The term refers to a jury of your peers, not the judge. In addition, his ruling pertains to Supreme Court judges only. Still questionable, but the problem you purport it to be.
Yes I was a bit sloppy in referring to a jury of your peers thanks for the catch. But given the huge difference in culture and moral values between the Quebec French and the rest of Canada the perception of fairness in the judicial system will move from slim to none.
I am learning a lot from The Line about how Canada works. Renewing today.
Yes, as a multi year subscriber this has been the best civics course I have ever taken :)
That the Liberals are even attempting this shows that they think they have something that they can live with in the bag. They are treating the Supreme Court as an extension of the Liberal establishment (big and small L).
As for their blessed Charter, another extension of their establishment, it is so virtuous that they didn't even have the guts to put it up for a referendum.
Kill the Charter to save Canada from itself.
Had they put the adoption of the Charter a referendum at the time, it would have been adopted with a large majority. The problem is not the Charter per se, but they way that the courts have interpreted it.
Are you sure? Even without Quebec's support?
Own goal by the LPC.
If the SCC rules in favour of limiting the NWC, then there is a constitutional crisis. Dr. Carney isn't up to it.
If the SCC rules against, or makes no decision, the LPC has egg on its face and still owns the backlash. Majority government in 2026? Less likely by the week.
How about scrapping some laws and so-called precedents wholesale. Bluntly call out and dispose of the bullshit.
Otherwise this crap continues to accumulate like unwashed dirt on the floor and the society ends up a dysfunctional mess, as is today's Canada.
There is nothing "holy" about any court, any judge, any judgement, any lawyer, any law, any "Constitution, any "Charter".
Growing up I never thought I would see a growing "Fuck the Charter" movement (for lack of a better term). It always seemed like such an unalloyed good. I guess this inevitably happens when it stops protecting some groups and absurdly favours others.
Yes. More and more people realize how selectively the "Charter" is applied, and how the courts perverted the original purpose. The "Charter" is useless and often destructive if it is interpreted without common sense. I do not think we need it. The class which brought it into disrepute and into disuse are the "Liberals", the political front for the Laurentian Corruptocrats.
Yeah. Its kinda strange to see Fraser advocating to override the.... Charter.
Well, nothing strange about "Liberals" effing up everything.
And as per usual it is in response to Quebec
Thanks Gerard, you have clarified a number of points in this which had been unclear.
I have been of the opinion that Canada’s needs the Supreme Court in its current form to balance the legislative branch if that branch proposes popular legislation that abrogates the rights of some Canadians. He rightly points out that the American example of the Supreme Court as final arbiter is not encouraging.
Though I am not able to cite many examples, our Supreme Court does seem to have a habit of creating new law in the face of judicial precedents and legislation. Our only response is to propose new legislation that we hope meets with the favour of the Court. Of course, what typically happens is that our legislators throw their hands up in despair, claiming that there is nothing that they can do, the Court has ruled. Perhaps the balance between the judicial and legislative branches, as Mr. Kennedy advocates, is a better method.
It would be easy to think that the Supreme Court operates like that - a welcome check on government power over the individual. Problem is that the Charter and the Courts don't really operate that way. They create new rights for niche identity groups and the rest of us have to live with it. They carve us into groups with different right based on race, gender, language, and income. They prioritize criminals over the rest of society. Seldom do they push back against government overreach that affects everyone, or champion real universal individual rights like property rights (e.g. gun confiscation, private healthcare) or the right to be left the hell alone (e.g. Covid mandates). I can say with confidence that rulings essentially never go in a way that I personally benefit from, but instead I am always in the group that has to shoulder the burden of new "rights" for others.
Yup. Feds wanna confiscate guns? Play ball! Municipality wants to remove a bike lane? That violates the constitutional rights of cyclists!
Favoured groups have more right to their preferred public infrastructure than hated groups have to things they bought with their own money.
I began reading your argument with a view to pillorying what you wrote.
I must admit, though, that after finishing this article, I came away with a more open view about the merits of S 33 (the Notwithstanding Clause).
What clinched it for me was your own admission regarding the appalling nature of the Quebec government's rationale for using S 33 (to cover for its illiberal law on religious symbols). That suggested to me a view formed in part from the same concerns I've long had about giving politicians (particularly provincial politicians in the Canadian context) such powers.
Thank you.
Per chance, is this article written by the Gerard Kennedy who once ran for leadership of the Ontario Liberal Party?