Starting a debate, fair enough, and using the Charter to override the justice system is an aspect of constitutional democracy. Again, true. But let's not forget a couple of important things; dismantling the Charter in part it or in toto has been a conservative dream for over 40 years. It's not hard to see this as the start of that process. Polievere's assertion that he would only use notwithstanding on criminal justice law is pretty weak tea; the fact is that over time using that section is something governments get more and more comfortable with after its first invocation. There's no reason to believe a federal government won't behave the same way, especially given the ideological affinity with Moe and Ford. SCC rulings first, what's next? And there will be a next.
There would be no Charter if not for the Nonwithstanding Clause. We just don't have a country where the judiciary has a veto over the democratically elected legislative and executive branches of government.
“Start a debate” - except that’s not what he’s doing at all. If he were doing that, he would be making the case by explaining how current mechanisms such as the “Dangerous Offender” designations are inadequate. We already have tools in our laws for dealing with “the worst of the worst”, and as far as I can tell they work just fine.
Then there are the myriad of topics that more radical elements of his base DESPERATELY want to legislate on - mostly social conservative hobby horse issues like abortion and transgender rights - none of which can be legislated the way the radical elements want them to be without S33. They’ve been salivating over using S33 for years. Where does it go when he decides to criminalize entire classes of people (trans people in particular) as Trump is clearly moving to do?
Excellent piece. Thanks. This is a great example of a judicial question about which reasonable people of good faith can disagree, and Sec 33 is tailor-made for such cases. That said, we also shouldn’t be naive about Poilievre’s likely strategy here. The Conservatives’ MAGA base hates judicial review (‘L/liberal judges etc’) and has made the willingness to use Sec 33 a symbolic indicator of one’s willingness to ‘destroy wokeism,’ ‘own the libs’ etc. Poilievre is throwing them red meat, while also having carefully selected a specific issue that won’t unduly alarm regular people. As Coyne puts it: “Poilievre isn’t proposing to use the notwithstanding clause to pass his crime bill — the point of the crime bill is so that he can use the notwithstanding clause.”
Tension between Parliament and the Courts is healthy. Without the NWC, what are the alternatives to force accountability onto Judges? Should Judges be elected? Should Judges face consequences, such as dismissal with cause, for incorrect rulings, such as granting bail to a repeat offender who offends again?
It's a choice in who has final say on everything legally in our society, the unelected, unaccountable judiciary, or the prone to populism elected legislative branch?
Who do you want with final say, the philosopher kings or the rabble? In a democracy it is the people who have final say, whether people like it or not.
Lets not forget that this admittedly half-arsed Charter was never actually voted on in a referendum.
If folks don't like Sec. 33 lets have a referendum to remove it.
I fully support the court's position as the best of a tough lot, but I also think that a public discussion of the use of there Notwithstanding Clause in this case is worthwhile.
Starting a debate, fair enough, and using the Charter to override the justice system is an aspect of constitutional democracy. Again, true. But let's not forget a couple of important things; dismantling the Charter in part it or in toto has been a conservative dream for over 40 years. It's not hard to see this as the start of that process. Polievere's assertion that he would only use notwithstanding on criminal justice law is pretty weak tea; the fact is that over time using that section is something governments get more and more comfortable with after its first invocation. There's no reason to believe a federal government won't behave the same way, especially given the ideological affinity with Moe and Ford. SCC rulings first, what's next? And there will be a next.
There would be no Charter if not for the Nonwithstanding Clause. We just don't have a country where the judiciary has a veto over the democratically elected legislative and executive branches of government.
This is a constructive piece from Jared and a worthwhile read.
I can't resist adding that I just rediscovered my own piece on the issue this morning, which I hope Jared doesn't mind me slipping in here:
https://open.substack.com/pub/cdnsurveystuff/p/what-if-section-33-becomes-an-issue?r=txatx&utm_campaign=post&utm_medium=web&showWelcomeOnShare=false
“Start a debate” - except that’s not what he’s doing at all. If he were doing that, he would be making the case by explaining how current mechanisms such as the “Dangerous Offender” designations are inadequate. We already have tools in our laws for dealing with “the worst of the worst”, and as far as I can tell they work just fine.
Then there are the myriad of topics that more radical elements of his base DESPERATELY want to legislate on - mostly social conservative hobby horse issues like abortion and transgender rights - none of which can be legislated the way the radical elements want them to be without S33. They’ve been salivating over using S33 for years. Where does it go when he decides to criminalize entire classes of people (trans people in particular) as Trump is clearly moving to do?
Excellent piece. Thanks. This is a great example of a judicial question about which reasonable people of good faith can disagree, and Sec 33 is tailor-made for such cases. That said, we also shouldn’t be naive about Poilievre’s likely strategy here. The Conservatives’ MAGA base hates judicial review (‘L/liberal judges etc’) and has made the willingness to use Sec 33 a symbolic indicator of one’s willingness to ‘destroy wokeism,’ ‘own the libs’ etc. Poilievre is throwing them red meat, while also having carefully selected a specific issue that won’t unduly alarm regular people. As Coyne puts it: “Poilievre isn’t proposing to use the notwithstanding clause to pass his crime bill — the point of the crime bill is so that he can use the notwithstanding clause.”
Tension between Parliament and the Courts is healthy. Without the NWC, what are the alternatives to force accountability onto Judges? Should Judges be elected? Should Judges face consequences, such as dismissal with cause, for incorrect rulings, such as granting bail to a repeat offender who offends again?
Excellent dispassionate analysis the likes of which I’d love to see on every election issue. Thank you
It's a choice in who has final say on everything legally in our society, the unelected, unaccountable judiciary, or the prone to populism elected legislative branch?
Who do you want with final say, the philosopher kings or the rabble? In a democracy it is the people who have final say, whether people like it or not.
Lets not forget that this admittedly half-arsed Charter was never actually voted on in a referendum.
If folks don't like Sec. 33 lets have a referendum to remove it.
https://substack.com/profile/91548269-callura-michael/note/c-109416518?r=1ii73h&utm_medium=ios&utm_source=notes-share-action
I fully support the court's position as the best of a tough lot, but I also think that a public discussion of the use of there Notwithstanding Clause in this case is worthwhile.
Seamus O'Shea