Lazy, impatient, vengeful fast track to fascism. Smith has every intention of exerting the maximum harm on Albertans. Like trump, cruelty and control is the point. Empathy is for humans, cruelty for cruelty sake is for psychopaths, a category they have both been upgraded to from sociopath based on their actions.
Thank you for this and the other articles on the notwithstanding clause. Very helpful to learn about and understand the implications of using it. Frankly, the implications of the UCP motivations are terrifying, and must be vociferously opposed.
Perhaps there is already authority to the contrary, but it seems to me that s. 33 remains subject to s. 1, and must be exercised in a manner that can be demonstrably justified in a free and democratic society.
S. 33 is supposedly there to prevent judicial overreach, for situations where the SCC arguably got it wrong. There are plenty of SCC decisions where reasonable people, including dissenting SCC justices, could disagree with how the Court balanced the rights involved. But I don't think anybody intended for s. 33 to be used where the SCC clearly got it right, but legislators just don't care because it doesn't support their interests.
Obviously merely meeting the Oakes test is insufficient to show that an exercise of s. 33 violates s. 1. But it seems to me that there are some applications that would be so fundamentally undemocratic or antidemocratic that they could not be justified. As an example (and ignoring any possible division of powers problems with the example), if a jurisdiction decided to do something as appalling as legalizing chattel slavery, I can't see the SCC not finding a way to undo the legislation.
People may say, "That just couldn't happen," but I think what we are seeing in the US right now - including Republican influencers musing that slavery wasn't that bad - shows what a weak argument that is.
The back to work legislation might not hit that high bar, but I think it gets close enough for the Courts to build a test around. Anti-trans legislation may well clear that bar, if it bans potentially life saving treatment for kids who are at a high risk of suicide if they don't get it. But if we don't start finding ways to limit the use of s. 33, we risk making s. 2 & 7-15 effectively meaningless.
What technological or societal change occurred for the Supreme Court to start reading the right to strike as an extension of the right to free association when it had explicitly decided not to do so prior to 2015? One of the justifications for the NWC is to constrain judicial activism.
Would the Supreme Court interpret Right to Work legislation as an extension of the of the right to free association? Unionized workplaces force employees to surrender to collective bargaining and to pay dues to the a pre-defined agent acting on their behalf. That could easily be positioned as forced association.
The Teachers were not bargaining in good faith. They had already rejected arbitration and were asking for the impossible with classroom caps.
I reread all of them. I probably should have prefaced my reply with the Province having backed itself into a corner. It cannot offer more money as that would be higher than the settlements with other unions and it can't act on class size as the physical school space does not exist. Binding arbitration would be pointless as it likely would have awarded something the Province can't give. The only option beyond the NWC would have been to starve out the teachers which would have harmed students. I absolutely agree with the sentiment that the Province was lazy, impatient and vengeful. It should have solved the problem months ago. I could say the same about the ATA. It seemed destined for a fight no matter what. I'm happy my kids are back in school and relieved that I won't have to deal with this nonsense again for several years.
Hi Jared! Really appreciate you covering this issue. I’ve noticed in several commentaries you made (west of centre, front burner, this blog), that you’ve said notwithstanding clause ousts judicial review. That is incorrect. That is what the Supreme Court is currently determining.
The judge explains why not ousting judicial review is important for democracy. i think this distinction is important because smith and Moe (and Ford) *want* the notwithstanding clause to oust judicial review, but that’s yet to be determined.
Thats an important part of the story— that our provincial governments are trying to remove court access of their citizens— which is missed when you state that it is already the case.
Well first things first. The concept of unions for government employees is ridiculous on its face. "We" as a collective employ the teachers. Why do the teachers (or any government employee) need to protect themselves from...themselves? Notwithstanding that, yes, pun intended, Canada screwed the pooch when the NWC was included in the Charter. Imagine in the US that their Bill of Rights said "...oh forget all that other stuff, do what you please". The NWC is there and exists the same as a 7th level subparagraph of law. When plotting political strategy, it should be taken into account that it may be used against you. If you don't like it, get rid of it.
Lazy, impatient, vengeful fast track to fascism. Smith has every intention of exerting the maximum harm on Albertans. Like trump, cruelty and control is the point. Empathy is for humans, cruelty for cruelty sake is for psychopaths, a category they have both been upgraded to from sociopath based on their actions.
Thank you for this and the other articles on the notwithstanding clause. Very helpful to learn about and understand the implications of using it. Frankly, the implications of the UCP motivations are terrifying, and must be vociferously opposed.
Because they don’t give a damn about real working Albertans, or anyone else for that matter.
For all their talk about freedom, they seem to be terrified when other groups have it.
Perhaps there is already authority to the contrary, but it seems to me that s. 33 remains subject to s. 1, and must be exercised in a manner that can be demonstrably justified in a free and democratic society.
S. 33 is supposedly there to prevent judicial overreach, for situations where the SCC arguably got it wrong. There are plenty of SCC decisions where reasonable people, including dissenting SCC justices, could disagree with how the Court balanced the rights involved. But I don't think anybody intended for s. 33 to be used where the SCC clearly got it right, but legislators just don't care because it doesn't support their interests.
Obviously merely meeting the Oakes test is insufficient to show that an exercise of s. 33 violates s. 1. But it seems to me that there are some applications that would be so fundamentally undemocratic or antidemocratic that they could not be justified. As an example (and ignoring any possible division of powers problems with the example), if a jurisdiction decided to do something as appalling as legalizing chattel slavery, I can't see the SCC not finding a way to undo the legislation.
People may say, "That just couldn't happen," but I think what we are seeing in the US right now - including Republican influencers musing that slavery wasn't that bad - shows what a weak argument that is.
The back to work legislation might not hit that high bar, but I think it gets close enough for the Courts to build a test around. Anti-trans legislation may well clear that bar, if it bans potentially life saving treatment for kids who are at a high risk of suicide if they don't get it. But if we don't start finding ways to limit the use of s. 33, we risk making s. 2 & 7-15 effectively meaningless.
Never blame malice when stupidity will suffice, said someone...
What technological or societal change occurred for the Supreme Court to start reading the right to strike as an extension of the right to free association when it had explicitly decided not to do so prior to 2015? One of the justifications for the NWC is to constrain judicial activism.
Would the Supreme Court interpret Right to Work legislation as an extension of the of the right to free association? Unionized workplaces force employees to surrender to collective bargaining and to pay dues to the a pre-defined agent acting on their behalf. That could easily be positioned as forced association.
The Teachers were not bargaining in good faith. They had already rejected arbitration and were asking for the impossible with classroom caps.
Do you even bother to read an article before posting a comment on it, Doug? None of what you said even remotely touches on what I covered.
I reread all of them. I probably should have prefaced my reply with the Province having backed itself into a corner. It cannot offer more money as that would be higher than the settlements with other unions and it can't act on class size as the physical school space does not exist. Binding arbitration would be pointless as it likely would have awarded something the Province can't give. The only option beyond the NWC would have been to starve out the teachers which would have harmed students. I absolutely agree with the sentiment that the Province was lazy, impatient and vengeful. It should have solved the problem months ago. I could say the same about the ATA. It seemed destined for a fight no matter what. I'm happy my kids are back in school and relieved that I won't have to deal with this nonsense again for several years.
Hi Jared! Really appreciate you covering this issue. I’ve noticed in several commentaries you made (west of centre, front burner, this blog), that you’ve said notwithstanding clause ousts judicial review. That is incorrect. That is what the Supreme Court is currently determining.
Quebec court of appeal said it does; Saskatchewan court of appeal said it doesn’t. You can read the sask appeals court ruling here… definitely don’t have to be a lawyer for it to make sense. : https://www.canlii.org/en/sk/skca/doc/2025/2025skca74/2025skca74.html
The judge explains why not ousting judicial review is important for democracy. i think this distinction is important because smith and Moe (and Ford) *want* the notwithstanding clause to oust judicial review, but that’s yet to be determined.
Thats an important part of the story— that our provincial governments are trying to remove court access of their citizens— which is missed when you state that it is already the case.
Well first things first. The concept of unions for government employees is ridiculous on its face. "We" as a collective employ the teachers. Why do the teachers (or any government employee) need to protect themselves from...themselves? Notwithstanding that, yes, pun intended, Canada screwed the pooch when the NWC was included in the Charter. Imagine in the US that their Bill of Rights said "...oh forget all that other stuff, do what you please". The NWC is there and exists the same as a 7th level subparagraph of law. When plotting political strategy, it should be taken into account that it may be used against you. If you don't like it, get rid of it.