Wednesday, September 12, 2018

Who makes the *rule of law*?

In all of the talk about the Ontario government using the Notwithstanding Clause, you hear things like, the "bill violated “unwritten constitutional principles” of democracy and rule of law" or as Andrea Horwath said, “Doug Ford is literally suspending the Charter of Rights for Ontario’s people" and other such nonsense.

"Unwritten constitutional principles"? Really? They had all the words in both official languages at their disposal but they thought they'd leave some out and we could all just surmise what they meant by not putting them in? The Constitution is a written document, and too often, judges have *read in* words that are not on that document.

Are there "unwritten constitutional principles*? It would seem to me that when judges impute meanings or infer things from the largely unambiguous language, what they are doing is pruning it, or growing it to fit their own vision of justice. They are not interpreting anything -- they are inventing. Stretching. Creating. Imagining. Because they can. Because who is going to stop them.... except maybe a lawmaker, finally using the means afforded to him within the constitution to pass the legislation.

If you read the ruling, you know its specious. The law does not impede the charter rights of any citizen. It doesn't suppress freedom of expression and it doesn't prevent adequate representation -- but even if you think it does -- Ford will be judged in four years' time by us and the law will be challengeable again in five. Big deal.

Whatever you think of the law reducing Toronto City Council -- whatever you think of the judge's ruling striking it down -- the Notwithstanding Clause is a mechanism of the Constitution and its use is not an abuse of power.

How can a tool in the lawmaker's arsenal be *violating (...) democracy and rule of law*?

Has Canada forgotten who is supposed to make laws?



Anonymous said...

old white guy says----------the judge ruled against the Ontario constitution so he ruled against the law. I think sec 33 is the relevant part. the province has the right to determine municipal boundaries and other municipal/city rules as well as how many councillors can be at the trough in the city of Toronto.

Canadianna said...

What I'd like to know is why so many Canadians are unreservedly willing to put the law in the hands of unelected, unaccountable judges -- not just here, but on every level. It's the 1985 Singh decision by the SCC that made it so that every asylum seeker who steps onto our soil gets a hearing. Legislators didn't decide that. Judges did. Now, over thirty years later, we're seeing the fallout from their decision. Why do we put up with that?

Jack Davies said...

Why do we put up with that? Because voters are very busy trying to deal with the fallout of biased lefty decisions in their private lives on a daily basis and give little thought to the "why" of it all. Hopefully, Ford has given everyone a real 'shout out' and Canada is finally 'woke' as they start to take a hard look at Trudeau's gift that keeps on giving...the Canadian Charter and Bill of Rights.

That's my view.

Anonymous said...

Does judicial activism exist? No question, all the way to the Supreme Court. But would electing judges mitigate that problem? Unlikely. After all, look at what the 2015 election yielded ... and a majority of electors are apparently still enamoured with our theme-sock PM. Elections do not guarantee that the person elected will implement whatever policy is dear to my heart or to yours.

Actually, if Conservative PMs were to adopt the US style of appointing judges, i.e. frankly and transparently choosing conservative leaning candidates, we might have a chance of balancing who sits on the bench, i.e. we might hopefully have a number of conservatives, a number of liberals and maybe even some apolitical ones, depending on who's in power.

On a side note: on the CBC's Power & Politics program today there was a panel of 3 former provincial premiers discussing Doug Ford's use of the NWC. Christie Clark, Brad Wall, and Jean Charest all agreed Ford had a right to invoke it, that it was not unconstitutional, although they differed somewhat on whether it was appropriate in this instance. As I was watching it occurred to me what a shame it was that Christie Clark, although technically a Liberal, had not run for the leadership of the CPC. She would have been a formidable opponent for Trudeau. She articulately raised the point of judicial activism without using that phrase.
-- Gabby in QC

canadianna said...

Jack, looking at the reactions, I think most people who are paying attention just don't get it. Not that I'm some legal scholar, but for so many people everything is just either an apathetic or visceral response, depending who is in office.

Gabby - The one thing about elected judges would be the option to turf them. Apparently the BC Federal judge who wrote the opinion on Trans Mountain also blocked the other pipelines... so you have to wonder how impartial he is coming to the decision.
Thanks for the heads up, I watched P&P. It was nice to see people who've been in those positions standing up for this.