Canadian Courts on Trial

June 1, 2024

HERE'S MY TAKE

You don’t have to go far to find an unpopular judicial decision. Typically these involve a sentence that doesn’t seem to match the crime or a human rights or constitutional case that seems to defy common sense. The justice system provides a steady stream of stories that can fly in the face of street logic.

In part, that’s a good thing. Justice, not revenge, is the standard we want our judicial system to uphold. Our constitutional structures are designed to protect the minority from unjust majority sentiment, to ensure that authorities respect the rule of law, and to protect everyone’s rights.

Despite all this, judges are fallible, and there are plenty of examples, both contemporary and historical, to demonstrate the point. This is why our legal system includes appeal mechanisms. But ultimately someone has to have the final word, and in this country, that is the Supreme Court of Canada. Even that "final word," however can get things wrong. Sadly, the Supreme Court of Canada decision to uphold the constitutionality of the mass internment and deportation of Japanese Canadians during the Second World War is not an isolated example of obvious injustice. 

Judges are top of mind for me because of a symposium I was privileged to attend this week. The Chatham House rule governs it, so I need to be discreet in not identifying or quoting the participants. The room was credible and included a half-dozen of the lawyer-types who had appeared before the Supreme Court of Canada or written legal articles for national media outlets. Over two days, participants identified plenty of examples of “bad” legal decisions, leading someone to muse about the “unaccountability of the courts” who seem to be “imposing” legal decisions designed to shape society in a particular ideological direction.

“So what’s our strategy to counter this?” some wondered. Of course, a change of government may result in a different kind of judicial appointment. Even so, judges sit until they are 75 with few effective tools to remove them. So, the evolution of the courts through appointments is a multi-decade process. 

The conversation evolved into a version of the debate Joanna Baron recently described in her article for The Hub regarding the role of the “notwithstanding clause.” That clause is formally known as Section 33 of the Charter of Rights and Freedoms. It emerged from the negotiations between the federal government and the provinces in the lead-up to the 1982 patriation of the Constitution and adoption of the Charter. Several provinces were concerned that the Charter as drafted would end up giving courts and judges too much power. They wanted Parliament to remain the ultimate decider. Section 33 allows an elected legislature to override a court’s constitutionality decision for a given law for a five-year period. (If a government wants to continue overriding a court decision, it must “renew” the exemption every five years.) While various provinces have invoked the clause almost 30 times, the federal government has never done so. Recently, provinces have used a new tactic when introducing legislation. Quebec preemptively invoked Section 33 for its bill banning religious symbols while Saskatchewan did the same for its bill regarding parental rights and children’s pronoun use at school. These governments didn’t wait for a court to decide their law was unconstitutional. These cases, plus the musings of Conservative leader Pierre Poilievre about possibly using this clause federally, have made the debate very current.

The issue is ordinarily framed as a stark choice. Who gets the final word? The judges on the basis of legal interpretation, or the legislators on the basis of politics? History tells us that both are imperfect and neither is a sure protection for minority rights. Decision-makers, be they politicians or judges, are more than capable of rationalising to justify unjust decisions in order to stay popular with the crowds. 

Would reframing the debate help? Liberal democracy is only reasonable when the rule of law is upheld. Judicial accountability is needed to ensure that happens. Usually, the debate gets framed as “who” gets the final word – the legislature or the courts. But what if more emphasis was placed on the “when” question? Using the notwithstanding clause, which requires renewal every five years, is an interim, not a final decision. So, instead of framing (and conducting) the debate as a tug-of-war over final authority between two branches of government, we could see the process as simply a provisional decision, with a more lasting decision still to be made. As Baron helpfully points out in her description of the “coordinate theory of Section 33,” the five-year limit on its use means that ultimately voters get the last word. After all, an election must take place before the application of Section 33 expires. 

In a political context of distrust, it might be useful to reduce the political toxicity of Section 33 by emphasising it is an interim tool in a process, not a final decision. It’s a five-year pause on permanently deciding a difficult matter to allow political listening and dialogue to take place. While I get the appeal of “get rid of the gatekeepers” (which in practice is just cover for replacing the current gatekeepers with new ones, since every system will have gatekeepers), what if the usage of Section 33 was framed as a way to involve a public debate? 

Many of the issues we debate aren’t black and white. They require judgement and prudence. Public debate is a messy place to achieve that, but at least there is a back and forth that comes with dialogue that the “final” pronouncements of court decisions or new legislation don’t permit. It provides space to appeal not just to the final options, but the underlying considerations that could lead us to different conclusions. The notwithstanding clause provides a structural way for debate to occur, with a five-year timeline forcing a decision point. 

Today the notwithstanding clause is seen as a suspension of the ordinary processes to impose a particular outcome. What if instead, it becomes a tool for a focused dialogue? Might Section 33 even be used to enhance, rather than suppress, public confidence in democracy?

WHAT I’M READING

A Chinese Shadow on USMCA

John Ibbitson reviews the 2026 sunset clause on the United States–Mexico–Canada Agreement (USMCA) in the context of emerging political realities. The expectation is that renewal will have political challenges and require concessions as the United States adopts a much more protectionist trade paradigm, less committed to the principle of global free trade in an increasingly polarised global environment. In the same issue of the Globe, an editorial urged the Canadian government not to succumb to US pressure on electric vehicle imports from China, demonstrating that Canada’s trade policy is also being driven by domestic political considerations other than trade. It would seem that while the agreement being negotiated involves three North American countries, China will also be a factor in whatever settlement emerges. The time for “picking sides,” not just in foreign and defence policy but also trade, seems to be emerging.

Serving the Public

A feature on the federal bureaucracy and evolving nature of public service, contrasting the era of the Harper government with that of the Trudeau government (with reference to a broader historical context) has lots of interesting tidbits. The article included a contrast. In part, one got a picture of a growing “Yes, Minister” impulse, with the bureaucracy less likely to warn “unschooled politicians off their half-baked ideas” out of self-preservation. It also tells of younger public servants “challenging long-standing rules about remaining neutral on the job” and seeing part of their public service duty “to be vocal advocates for specific social justice causes” as the protectors of “Canadian values.”

National Service

Britain’s Conservative leader Rishi Sunak has proposed that all 18-year-olds be required to complete a year of national service, either military or civilian. Tasha Kheiriddin proposed in her National Post column that Canada should do the same, promoting diversity and mutual understanding among young people to offset the “culture of division” being taught in Canada today. “Maybe if young people got a taste of what it is to serve their country, they would want to defend it. Maybe if they volunteered in the armed forces, in charities, in public service, they would want to build our country, instead of tearing it down. But it’s up to us to take the lead and make it happen.”

Bond Losses

I follow too many files to be an expert in them all, but I pay particular attention to stories that seem to have a “canary in a coal mine” feel. This Bloomberg story on bonds backed by New York real estate paying out at 74% exposes the challenges facing commercial real estate markets. The office arrangements for established companies in prime downtown spaces may seem several steps removed from most of our day-to-day realities, but they are likely a consequence of bigger trends that will hit closer to home.

MEANINGFUL METRICS

To Go or Not to Go

Kyla Ronellenfitsch is an innovative pollster who describes her work as a pollster, data scientist, and consultant as “using data to create progressive change.” Her recent poll (about which she chats at length in a recent podcast with David Herle) is well worth a listen if nerding about political numbers is your thing. Conventional political wisdom has held that the campaigns to stop Conservative momentum will focus on the “scariness” of Pierre Poilievre in particular, and Conservatives in general. Ronellenfitsch brings data which suggests that scary attributes are more associated with Prime Minister Trudeau than with Mr. Poilievre, and that such a campaign might be difficult to achieve successfully. What if Mr. Trudeau resigns and another Liberal leader takes his place before the next election? The data show the vote pool accessible to the Liberals increases from 38% to 52% in such a scenario, a significant 14-point increase. However, even those numbers suggest a much smaller pool of voters is ready to consider voting Liberal than has been the historic norm.

TAKE IT TO-GO

The Chaos

Regular readers know that I enjoy wordplay. Discovering opportunities to place words in a context that utilises the word differently than the dictionary says is right is a refined form of anarchy and has its own reward. The double reward comes from your audience, at first not getting it, and then having the “lightbulb” moment in which the double meaning becomes apparent, not being able to stop their reaction.

All of this to explain why I hit the link this week when social media drew my attention to a 1922 poem by Gerard Nolst Trenité called “The Chaos.” I read the whole thing… aloud…with no one else in the room. I stumbled over a few words, chuckled at a few others, and in the five minutes or so it took to read the 800 words, both laughed and groaned. So it only seems proper to share it in this space.

Except there are two problems. It needs to be read aloud to be appreciated. It’s also 800 words. I’d recommend reading it aloud even if there are others in the room–it will evoke both laughs and groans. It will also prompt a pronunciation stumble or two and you will leave with a greater appreciation for the English language that has been bequeathed to us:

Dearest creature in creation Studying English pronunciation, I will teach you in my verse Sounds like corpse, corps, horse and worse…..

Now I surely will not plague you With such words as vague and ague, But be careful how you speak, Say: gush, bush, steak, streak, break, bleak …

Don’t you think so, reader, rather, Saying lather, bather, father? Finally, which rhymes with enough, Though, through, bough, cough, hough, sough, tough??

Hiccough has the sound of sup… My advice is: GIVE IT UP!

So what’s left to say that’s not already been said?
Some may say it’s time to put this poem to bed.
I acknowledge Trenité’s advice is over a century old
But I’m convinced that in 2024, wordplay can still be sold.
Don’t view unique pronunciations as giving words blight.
They are a tool for playfulness and can bring great delight.
If you’ve made it this far, join me in shouting, "Hurray!"
And look for Insights in your inbox next Saturday, if we may.