A wicked and humourless friend suggested over yesterday's cappuccino that Alberta separatists should be sent to Habitat for Humanity projects on reserves. When pressed, he thought that Québec nationalists would benefit by working in immigrant daycare centres.
Any thoughts that Alberta and Saskatchewan may not have the right to secede since they were carved out of Canadian territory when they became provinces in 1905? One can argue that all of Atlantic Canada, Ontario, Quebec and BC came in of their own accord. I am on the fence about Manitoba.
Most of Northern Ontario north of Lake Nippigon Nirth Bay. as well as most of Northern Quebec were carved out of tbe same purchase, it was all former Hudson's Bay Company land that Canada bought in 1870.
This caused repeated chagin to Quebec Separatists as the title to Crown Land was conditional on a treaty being signed with the Indigenous Peoples, mostky the Cree, which Quebec never signed. Quebrc only begrudgingly signed the James Bay Agreement in the 1970's to solve the issue.
Any thoughts that Alberta and Saskatchewan may not have the right to secede since they were carved out of Canadian territory when they became provinces in 1905? One can argue that all of Atlantic Canada, Ontario, Quebec and BC came in of their own accord. I am on the fence about Manitoba.
Does the constitution distinguish between the legal rights of provinces that were "carved out" versus those that "came in of their own accord"? I'm guessing not.
The only provinces that weren't expanded by Parliament or created after Confederation are the Atlantic Provinces and British Columbia.
Then again the Constitution says absolutely nothing about separation and I still mainrain that the Suprene Court was making the whole ruling up out of whole cloth,
Paragraph 3 reads after that Day those Three Provinces shall form and be One Dominion under that Name (of Canada). and in Paragraph 5 Canada shall be divided into Four Provinces, named Ontario, Quebec, Nova Scotia, and New Brunswick. It would seem that the two eastern provinces entering and the two created by the Act have equal status. PEI and BC entered later as colonies, Manitoba was created by Order in Council, Newfoundland as a colony, and the two western provinces were created from three territories by the federal parliament.
Those who claim that Alberta and Saskatchewan entered into Confederation don't have a leg to stand on. The degree to which any separating entity receives a transfer of First Nations land automatically will likely be a matter of negotiation, and this is where FN assent will be politically if not constitutionally critical.
However, let's see if they get a vote out of it. In the meanwhile I can wonder what happened to conservatism in Canada that it adopts a republican stance....
Not to mention that the Governnent of Canada negotiated and paid for the treaties to secure all that Crown Land in the first place. Add in the money to secure the HBC claim, Alberta owes athe Feds a great deal of money as a divorce settlement,
Based on wikipedia, personal experience, and basic common sense, I'd wager that this is the first time in decades that Edmonton Riverbend or a predecessor riding has had a non-conservative MP. Not having lived in Edmonton for a long time, I'm wondering how the voters there will react to this floor-crossing.
Carney’s overall numbers seem good but I haven’t been following Terrebonne.
Any thoughts on the NDP race as it draws towards its conclusion?
Avi Lewis has it in the bag.
The only concern is that his election would make the NDP appear like a hereditary elective monarchy.
The last time someone in his ancestral line was federal NDP leader was 1975, and for the Ontario NDP, 1978. I don't think too many people besides boomers and hardcore political junkies are gonna make the connections.
You mean "hardcore political junkies"? Hey, that describes yours truly as well. In fact, I can remember Stephen Lewis as Mulroney's UN ambassador, thundering against Soviet actions in Afghanistan, and a few years later, I even got to hear him speak in person in Edmonton.
But I feel safe in saying that my level of awareness is rare, even among Gen Xers, to say nothing of people born in the 1980s. And twentysomethings? Forget about it.
I'm old enough to have met David Lewis. I think that he was enjoying his retirement. He declined an offer to mediate a dispute at a park in New Brunswick.
Still, an elective monarchy worked for the Habsburgs for a few centuries.
Stetson, what do you have against Boomers who are also political junkies? ;^) Although not as old as Augustine, I have fond memories of Avi's father and grandfather. I was actually interviewed by Avi's partner (Naomi Klein) when I was Ontario Federation of Students Chair and she was editor of The Varsity.
I suspect a lot of people will think of Naomi Klein in connection with Lewis before they think of his father or grandfather. I think there’s some risk here because not all of that name recognition is positive. On the other hand there’s probably a decent overlap between positive name recognition and potential NDP voters.
Caissa we must be of roughly the same vintage because I remember that Klein was the Varsity editor when I was at U of T.
The guy's just the master of petty law-and-order issues. See his comments a few days ago about how that homeownwer who shot the intruder shoulda fired a second round.
(Mind you, anti-scalping sentiment might not be as universal as anti-burglar sentiment, since buying scalped tickets is probably at least a tolerated activity among a lot of otherwise respectable people.)
Quebec's Bill 21 the vomit-inducing " Secularism" law is up for review at the Supreme Court.
I, for one, find it dreadful that Quebec, the jurisdiction which wrote a large part of British religious tolerance, forgets that history and passes this excuse for an Act.
Quebec's Bill 21 the vomit-inducing " Secularism" law is up for review at the Supreme Court.
I, for one, find it dreadful that Quebec, the jurisdiction which wrote a large part of British religious tolerance, forgets that history and passes this excuse for an Act.
I agree. Though I'm gonna call it now and say that the judges will NOT allow restrictions on the use of 33, beyond what is already set out by the section itself.
The pre-emptive use of the notwithstanding clause is something for which I would hope that lieutenant goveners apply the reservation provisions of the Constitution Act. But I fear that this would occasion too many chief minister coronaries....
Quebec's Bill 21 the vomit-inducing " Secularism" law is up for review at the Supreme Court.
I, for one, find it dreadful that Quebec, the jurisdiction which wrote a large part of British religious tolerance, forgets that history and passes this excuse for an Act.
I agree. Though I'm gonna call it now and say that the judges will NOT allow restrictions on the use of 33, beyond what is already set out by the section itself.
I don’t think they’re going to rewrite the section, but there are some things they could say that would make its use less attractive.
One of the live issues is whether section 33 goes so far as to prevent a court from even making a declaration the legislation is would be of no force and effect but for section 33 - ie. a declaration that it would be unconstitutional but for the override. I understand there is early jurisprudence of the SCC that suggests a complete immunity but it’s possible they will want to re-think that. The Saskatchewan Court of Appeal has already held otherwise and the SCC will be hearing that appeal probably later this year.
I haven’t tried to read all the materials filed on this appeal - it’s way too much - but I understand some of the interveners are proposing some kind of outer limit. I’ve seen commentary suggesting eg. that minimum human rights standards in international law should set some limits though it’s not clear to me how that would work in practice. Some years ago in a case called R v Hape the Court held that the Charter does not apply to the actions of Canadian officials outside Canada, but drew a limit at clear violations of international law. The logic of that decision doesn’t apply directly to the interpretation of section 33 but it’s possible that the court would at least suggest that such limits might exist even though I doubt that it would find the Quebec secularism law qualifies as such a clear violation.
The Court is not going to be able to take forever to decide this. The Chief Justice put Justice Martin on the panel even though she is about to retire, which AIUI gives them until about November to get a decision out. Justice Jamal recused himself because he had previously been counsel for one of the interveners, which means another judge had to be bumped from the panel so it remained an odd number of judges (to prevent the possibility of a tie). The CJ decided to bump Justice Moreau AIUI on the basis that she is the most junior judge on the Court.
One of the live issues is whether section 33 goes so far as to prevent a court from even making a declaration the legislation is would be of no force and effect but for section 33 - ie. a declaration that it would be unconstitutional but for the override.
Yeah. Not having read any of these bills, I've wondered if the inclusion of a pre-emptive 33 clause is meant to state that...
...if the bill is challenged in court and fails the challenge, the province is legally bound to invoke notwithstanding, OR...
...the bill can't be challenged in the first place.
One might think, I suppose, that it's ultimately a distinction without a difference, because if the law in question binds the legislature to invoke 33 against any eventual judicial quashing, there's really no practical point to anyone challenging the law on Charter grounds in the first place.
There is a a federal NDP resolution circulating calling for all invocations of s. 33 to be Disallowed.
So I guess they've written off Quebec as a source of substantial seat gains? Or is stuff like Bill 21 less popular in Quebec than the popular narrative would have one believe?
That one came from Sarnia. I doubt it will make it to the floor
I nod to your knowledge of the situation and the players.
It would still be interesting as a thought-experiment to see how an anti-33 NDP platform would play in the various provinces. At least in most of the anglo-majority provinces, I think it's something like provincial control of education, ie. people aren't screamingly possessive about it on an everyday basis, but if someone were ever to propose abolishing it, the various regionalist political-elites would yell something about "an assault on the rights of our province", and most voters would just instinctively think that sounds like an infamy and make pro-33 a sine qua non for their vote.
One of the live issues is whether section 33 goes so far as to prevent a court from even making a declaration the legislation is would be of no force and effect but for section 33 - ie. a declaration that it would be unconstitutional but for the override.
Yeah. Not having read any of these bills, I've wondered if the inclusion of a pre-emptive 33 clause is meant to state that...
...if the bill is challenged in court and fails the challenge, the province is legally bound to invoke notwithstanding, OR...
...the bill can't be challenged in the first place.
One might think, I suppose, that it's ultimately a distinction without a difference, because if the law in question binds the legislature to invoke 33 against any eventual judicial quashing, there's really no practical point to anyone challenging the law on Charter grounds in the first place.
Generally speaking as I recall there would be language in the statute that it operates notwithstanding the relevant provisions of the Charter. I think when section 33 is invoked pre-emptively they list all the relevant sections (which is not the whole of the Charter because some important rights - e.g., voting rights - are not subject to section 33). So the question becomes whether this stops any legal challenge in its tracks or whether it just means the legislation remains in effect regardless of the results of any legal challenge.
Practically speaking the view among people who bring these challenges seems to be that it is still worthwhile to get a declaration even if it doesn't render the legislation of no force and effect. One reason is that s. 33 can only be invoked for 5 years at a time. Constitutional litigation doesn't always move at lightening speed but if the challengers move quickly there's a decent change that SCC is going to be able to weigh in by then. So when it comes time to pass the legislation again politicians will know if the legislation is offside the Charter. If so the political cost of using the override is higher than if this were still merely a possibilty that hasn't been resolved one way or the other. Of course that assumes that the electorate generally cares about what the SCC thinks but if we get to the point where that's not the case then arguably we have bigger problems.
We do have some experience from other countries as to the effect of non-binding decisions on the constitutionalty of legislation. In the UK, the 1998 Human Rights Act empowers courts to make a declaration that an Act of Parliament is inconsistent with the European Convention on Human Rights (to which the UK remains a party), but it does not allow courts to invalidate an Act of Parliament on that basis (my understanding is that it *can* invalidate secondary legislation like regulations, and other executive acts). Once the UK Courts have finally weighed in on the issue, then it can go the Eurpoean Court of Human Rights. My understanding is that at some point along the road if the UK government is losing the argument it will amend the legislation to bring the UK into conformity with the Convention. So even though the UK Supreme Court cannot invalidate primary legislation there is a practical effect when the courts find against the government. (The last time I was seriously looking at this was 20 years ago when the HRA was in its infancy. I'm sure there's been a lot of water under the bridge since then.)
Also of interest, as part of the same research I was looking at the NZ Bill of Rights which has (or at least had) a general notwithstanding clause (or really an anti-supremacy clause) - the Bill of Rights applies to acts of the executive but cannot be used to invalidate legislation. Consequently, I didn't find a lot of cases where people had asked the NZ courts to weigh in on legislation but interestingly there was a major gay rights case (possibly gay marriage - if not that then something similarly consequential) that was heard and decided even though everyone understood that the Court could not invalidate the current law. So the claimants thought it was worth bringing the case to get a decision even though it could not have direct effect on the law. Again, I'm sure there's been a lot happening in the last 20 years and I couldn't tell you what the situation is now.
Comments
A wicked and humourless friend suggested over yesterday's cappuccino that Alberta separatists should be sent to Habitat for Humanity projects on reserves. When pressed, he thought that Québec nationalists would benefit by working in immigrant daycare centres.
This caused repeated chagin to Quebec Separatists as the title to Crown Land was conditional on a treaty being signed with the Indigenous Peoples, mostky the Cree, which Quebec never signed. Quebrc only begrudgingly signed the James Bay Agreement in the 1970's to solve the issue.
Does the constitution distinguish between the legal rights of provinces that were "carved out" versus those that "came in of their own accord"? I'm guessing not.
Then again the Constitution says absolutely nothing about separation and I still mainrain that the Suprene Court was making the whole ruling up out of whole cloth,
Those who claim that Alberta and Saskatchewan entered into Confederation don't have a leg to stand on. The degree to which any separating entity receives a transfer of First Nations land automatically will likely be a matter of negotiation, and this is where FN assent will be politically if not constitutionally critical.
However, let's see if they get a vote out of it. In the meanwhile I can wonder what happened to conservatism in Canada that it adopts a republican stance....
https://canlii.ca/t/1fqr3
(though I think this may be the decision that SPK is criticizing upthread)
I wonder how close they are to the needed 177,000 signatures.
Any thoughts on the NDP race as it draws towards its conclusion?
Even if they got the signatures and got their referendum, they'd be guaranteed to lose. The only question would be by how much.
Avi Lewis has it in the bag.
The only concern is that his election would make the NDP appear like a hereditary elective monarchy.
The last time someone in his ancestral line was federal NDP leader was 1975, and for the Ontario NDP, 1978. I don't think too many people besides boomers and hardcore political junkies are gonna make the connections.
You mean "hardcore political junkies"? Hey, that describes yours truly as well. In fact, I can remember Stephen Lewis as Mulroney's UN ambassador, thundering against Soviet actions in Afghanistan, and a few years later, I even got to hear him speak in person in Edmonton.
But I feel safe in saying that my level of awareness is rare, even among Gen Xers, to say nothing of people born in the 1980s. And twentysomethings? Forget about it.
Still, an elective monarchy worked for the Habsburgs for a few centuries.
(He had one of his characters say it in Lyre of Orpheus but it’s also somewhere in his writings in his own voice…)
I suppose Lewis definitely has the most name recognition beyond the party itself, so not a surprising choice.
He does have the asset that he can get attention, which is precisely what the federal NDP needs right now
Caissa we must be of roughly the same vintage because I remember that Klein was the Varsity editor when I was at U of T.
The guy's just the master of petty law-and-order issues. See his comments a few days ago about how that homeownwer who shot the intruder shoulda fired a second round.
(Mind you, anti-scalping sentiment might not be as universal as anti-burglar sentiment, since buying scalped tickets is probably at least a tolerated activity among a lot of otherwise respectable people.)
I, for one, find it dreadful that Quebec, the jurisdiction which wrote a large part of British religious tolerance, forgets that history and passes this excuse for an Act.
I agree. Though I'm gonna call it now and say that the judges will NOT allow restrictions on the use of 33, beyond what is already set out by the section itself.
I don’t think they’re going to rewrite the section, but there are some things they could say that would make its use less attractive.
One of the live issues is whether section 33 goes so far as to prevent a court from even making a declaration the legislation is would be of no force and effect but for section 33 - ie. a declaration that it would be unconstitutional but for the override. I understand there is early jurisprudence of the SCC that suggests a complete immunity but it’s possible they will want to re-think that. The Saskatchewan Court of Appeal has already held otherwise and the SCC will be hearing that appeal probably later this year.
I haven’t tried to read all the materials filed on this appeal - it’s way too much - but I understand some of the interveners are proposing some kind of outer limit. I’ve seen commentary suggesting eg. that minimum human rights standards in international law should set some limits though it’s not clear to me how that would work in practice. Some years ago in a case called R v Hape the Court held that the Charter does not apply to the actions of Canadian officials outside Canada, but drew a limit at clear violations of international law. The logic of that decision doesn’t apply directly to the interpretation of section 33 but it’s possible that the court would at least suggest that such limits might exist even though I doubt that it would find the Quebec secularism law qualifies as such a clear violation.
The Court is not going to be able to take forever to decide this. The Chief Justice put Justice Martin on the panel even though she is about to retire, which AIUI gives them until about November to get a decision out. Justice Jamal recused himself because he had previously been counsel for one of the interveners, which means another judge had to be bumped from the panel so it remained an odd number of judges (to prevent the possibility of a tie). The CJ decided to bump Justice Moreau AIUI on the basis that she is the most junior judge on the Court.
Yeah. Not having read any of these bills, I've wondered if the inclusion of a pre-emptive 33 clause is meant to state that...
...if the bill is challenged in court and fails the challenge, the province is legally bound to invoke notwithstanding, OR...
...the bill can't be challenged in the first place.
One might think, I suppose, that it's ultimately a distinction without a difference, because if the law in question binds the legislature to invoke 33 against any eventual judicial quashing, there's really no practical point to anyone challenging the law on Charter grounds in the first place.
So I guess they've written off Quebec as a source of substantial seat gains? Or is stuff like Bill 21 less popular in Quebec than the popular narrative would have one believe?
I nod to your knowledge of the situation and the players.
It would still be interesting as a thought-experiment to see how an anti-33 NDP platform would play in the various provinces. At least in most of the anglo-majority provinces, I think it's something like provincial control of education, ie. people aren't screamingly possessive about it on an everyday basis, but if someone were ever to propose abolishing it, the various regionalist political-elites would yell something about "an assault on the rights of our province", and most voters would just instinctively think that sounds like an infamy and make pro-33 a sine qua non for their vote.
Generally speaking as I recall there would be language in the statute that it operates notwithstanding the relevant provisions of the Charter. I think when section 33 is invoked pre-emptively they list all the relevant sections (which is not the whole of the Charter because some important rights - e.g., voting rights - are not subject to section 33). So the question becomes whether this stops any legal challenge in its tracks or whether it just means the legislation remains in effect regardless of the results of any legal challenge.
Practically speaking the view among people who bring these challenges seems to be that it is still worthwhile to get a declaration even if it doesn't render the legislation of no force and effect. One reason is that s. 33 can only be invoked for 5 years at a time. Constitutional litigation doesn't always move at lightening speed but if the challengers move quickly there's a decent change that SCC is going to be able to weigh in by then. So when it comes time to pass the legislation again politicians will know if the legislation is offside the Charter. If so the political cost of using the override is higher than if this were still merely a possibilty that hasn't been resolved one way or the other. Of course that assumes that the electorate generally cares about what the SCC thinks but if we get to the point where that's not the case then arguably we have bigger problems.
We do have some experience from other countries as to the effect of non-binding decisions on the constitutionalty of legislation. In the UK, the 1998 Human Rights Act empowers courts to make a declaration that an Act of Parliament is inconsistent with the European Convention on Human Rights (to which the UK remains a party), but it does not allow courts to invalidate an Act of Parliament on that basis (my understanding is that it *can* invalidate secondary legislation like regulations, and other executive acts). Once the UK Courts have finally weighed in on the issue, then it can go the Eurpoean Court of Human Rights. My understanding is that at some point along the road if the UK government is losing the argument it will amend the legislation to bring the UK into conformity with the Convention. So even though the UK Supreme Court cannot invalidate primary legislation there is a practical effect when the courts find against the government. (The last time I was seriously looking at this was 20 years ago when the HRA was in its infancy. I'm sure there's been a lot of water under the bridge since then.)
Also of interest, as part of the same research I was looking at the NZ Bill of Rights which has (or at least had) a general notwithstanding clause (or really an anti-supremacy clause) - the Bill of Rights applies to acts of the executive but cannot be used to invalidate legislation. Consequently, I didn't find a lot of cases where people had asked the NZ courts to weigh in on legislation but interestingly there was a major gay rights case (possibly gay marriage - if not that then something similarly consequential) that was heard and decided even though everyone understood that the Court could not invalidate the current law. So the claimants thought it was worth bringing the case to get a decision even though it could not have direct effect on the law. Again, I'm sure there's been a lot happening in the last 20 years and I couldn't tell you what the situation is now.
I was wrong. That motion on Disallowing all Notwithstanding Clause invocations by provinces made it to the floor of the NDP Convention. It passed.
This debate has to win this year's Canadian Constitutional Geekery Award.