For the extra point: the Trans community at Convention was arguing passionately for using Disallowance to preserve Trans Rights as against the Quebec Caucus who did NOT want that millstone around their neck.
For the extra point: the Trans community at Convention was arguing passionately for using Disallowance to preserve Trans Rights as against the Quebec Caucus who did NOT want that millstone around their neck.
Stranger opponents I cannot think of.
So IOW the debate was...
NDP TRANS ACTIVISTS: The Crown should disallow any laws that restrict Trans rights.
NDP QUEBEC ACTIVISTS: No. Regardless of the purpose, over-ruling 33 is an evil that must never be endorsed.
With Danielle Smith back in Edmonton quietly nodding along with Quebec's homily.
And Toronto city council just decided to open government-run grocery stores. Another attempt to make Canadians more dependent on government.
Government involvement in the market place is never a good thing. They do not have to compete economically. They can undercut regular grocery stores, because they will be funded by the government.
I’m a bit skeptical that the city can run grocery stores on a cost-recovery basis that will actually be competitive - they’re talking about opening something like four stores as a pilot project which probably won’t give them anything like the purchasing power of the big chains. Not to mention the city has no expertise in this area. If they actually manage to improve food availability in some underserved areas all the better but practically speaking I doubt the chains have anything to worry about.
And I assume there are few remaining takers in the NDP for an asymmetrical-federalist approach along the lines of "Quebec can invoke 33 if they want, because they have a culture to protect, but the rest of the provinces need to fall in line and honour the Charter as the final authority" ?
No, the Quebec Section knows it will go over like a lead balloon.
Yeah. It's not quite clear to me where general public opinion is on 33, but I'm pretty sure that at least outside Quebec, there's next to zero market for "Everyone has to shut up and follow the Charter, except Quebec."
And even in Quebec, I suspect there's at least a section of pro-33 opinion that, if promised that Quebec would be allowed an exemption to judicial supremacy, would still consider it an ominous precedent that a major party was willing to impose it on everyone else.
Sorry to hear about Stephen Lewis. He lived a long full life.
I admit I think there’s something fundamentally weird about a party that has never been in power federally debating the use of the federal disallowance. Even in a section 33 world, there are practical strategies for trying to counter anti-transgender policies in Saskatchewan and Alberta - they go by the names of the Saskatchewan and Alberta NDP. Getting either party into power in the next provincial election would not be a simple task but they are both official opposition parties that have been in power in living memory.
Our constitution has legitimate counter-majoritarian tools in the Charter and generally in section 52 of the Constitution Act. But there are risks in getting in the habit of using the Charter as a solution to all problems - politicizing the judiciary being one of them and losing the habit of making one’s case to voters as part of the ordinary democratic process being another. With the result that at a purely functional empirical level there’s a risk of the system becoming unstuck. We may well be starting to see the effects of this in the current rash of section 33 at the provincial level. I’m not sure that doubling down on unruly provincial governments with federal disallowance is actually a solution to that problem.
The Disallowance Power gets talked about when everything else fails. See the history Bill 101 where it was discussed extensively. It has been a constitutional Hail Mary play for a century now.
Though I do find Marsupial's assertion on Charter litigation incongruent as it changes the goalposts on the primary function of any Charter or Bill of Rights: to protect a minority from the tyranny of the majority, which is explicitly anti-majoritarian and a limit on democracy,
I admit I think there’s something fundamentally weird about a party that has never been in power federally debating the use of the federal disallowance.
Well, the NDP has all sortsa policies meant for the federal level, all of them adopted without the party ever having been in power federally.
But, yeah, given that federal-provincial relations are probably the most fraught aspect of the Canadian polity, there might be a slightly comical bravado in a party with six seats announcing "We are going to smack down any and all invocations of 33 wherever they're attempted!!"
The Disallowance Power gets talked about when everything else fails. See the history Bill 101 where it was discussed extensively. It has been a constitutional Hail Mary play for a century now.
Though I do find Marsupial's assertion on Charter litigation incongruent as it changes the goalposts on the primary function of any Charter or Bill of Rights: to protect a minority from the tyranny of the majority, which is explicitly anti-majoritarian and a limit on democracy,
I understand how the Charter works in theory but how these instruments work in practice is a whole other topic. Practically speaking I think keeping popular opinion onside over the long run is crucial to the system not falling apart. As I said, when we see a rash of section 33 being invoked it’s a sign that things may be starting to come unstuck. I think doubling down by invoking another counter-majoritarian tool like disallowance may be counterproductive in the long run.
And your response to the Trans community would be what then, marsupual? It was very much their motion. I had dinner with one guy who described the Trans movement in Albera as five people in a trench coat. He was one of the five.
The rubber only hits the road for charters when they protect the weak and unpopular. Otherwise it's just inconsequential fluff.
I would say that that the recent spat of s.33 invocation we've seen is not an example of the system becoming unstuck as much as polutical grandstanding run amok. I was at the general strike called in Ontario after Ford ordered the educational assistant back to work and invoked s. 33. He was forced to retract and negotiate.
Carney's foible with s. 107 of the Canada Labour Code was along the same lines.
Very credible arguments, and as a constitutional just-societiest who now REGRETS his vote for Charlottetown, ones I can probably get behind. But in terms of the feasibility of it all...
Let's assume the NDP can get an ideologically unified majority, but one that corresponds with a period in which a few provinces are running amuck with 33: Alberta's banning drag shows, Quebec's outlawing crucifixes in strip clubs, some Newfoundland Liberal demagogues are trying to symbolically prohibit the flying of the Maple Leaf for one day to protest whatever unfairness they think Ottawa is visiting upon their province etc, all under the protection of Notwithstanding.
How easily would you say the federal government could just start handing out the Disallowances like parking tickets, without it becoming a major impediment to the smooth maintenance of federal-provincial relations and, ultimately, national unity? Do you posit that after one or two smackdowns, those provinces and all the potential recalcitrants will just shrug and say "Oh well, I guess Ottawa means business. No more 33 for us!"
In fairness, the NDP got the idea from Andrew Coyne, who posted it in an editorial 18 months ago.
s. 33 was never about the smooth functioning of Confederation. It was an instance of political sausagemaking and a deeply flawed concept. It was hardly used for 35 years, even Quebec gave up its practice of regularly asserting it just because it didn't like the idea of the Charter overturning its legislation. And then it sprang back to life five years ago.
The only thing that justified s. 33's existence was that it was supposed to be rare. Again, a deeply flawed and uneforceable concept. What's coming unstuck is not Charter rulings but the muddle over the Notwithstaning Clause that kept the Charter going.
Coyne's thesis is that you fight fire with fire and to be fair to everyone you invoke it every time s. 33 is used, no exceptions. Not for language, not for parent's rights, not for labour relations. It's the only way you can maintain credibility that you are enforcing a principle.
Quebec would scream bloody blue murder, so would Alberta but it would engender a serious conversation about rights enforcement that this country has avoided for forty years.
And your response to the Trans community would be what then, marsupual? It was very much their motion. I had dinner with one guy who described the Trans movement in Albera as five people in a trench coat. He was one of the five.
The rubber only hits the road for charters when they protect the weak and unpopular. Otherwise it's just inconsequential fluff..
I should start with the observation that nobody in the NDP has ever asked me for my opinion on these issues and I’m not in the habit of showing up at political conventions and offering unsolicited advice on sensitive topics. But if somebody did ask me my opinion, these are my concerns.
First, disallowance hasn’t been used for over 80 years and the Supreme Court has expressed doubt over whether it’s still an effective power. I know you disagree with the SCC but Canadian law is what the SCC says it is and ultimately the fact that you or I or Andrew Coyne may disagree is neither here nor there. It’s entirely possible the Court would uphold the power if feds decided to force the issue - there’s been a lot of water under the bridge since the Court last opined on the issue - but it’s possible they wouldn’t. The certainty is that there would be litigation and it would be long and complicated.
The other issue is that this is all occurring on the broader context of the politics of Western alienation, federal-provincial relations, and broad East/west urban/rural cultural politics. Which is to say there is a risk of trans and nonbinary people becoming collateral damage in a battle that is not being framed as about what is in the best interests of gender minorities and is to a large extent really about something else. Whatever happens after a successful disallowance it’s not going to be Danielle Smith coming into line and admitting the error of her ways. Pierre Poilievre came within an inch of becoming prime minister in the last electoral process and his electoral debts are to the same kinds of people who put Danielle Smith in power. Not only has he threatened use section 33 but also, completely uncontroversially, he would have the right to appoint (though not dismiss) federally appointed judges including the judges of all the appellate courts in the country.
This is feeling a bit like a debate between a theist and an atheist - you’re saying there should be some sure fire way of overturning bad law when legislatures go off the rails, and I’m not necessarily disagreeing with you in the abstract. I’m saying that in reality there is no sure fire way of doing this if push really comes to shove, and political strategies need to reflect this.
The fact that the disallowance power is written in to the Constitution and somehow 'doubtful' in legality is a frightfully disturbing assertion for a Court.
Just because it makes the Court uncomfortable doesn't not make it illegal.
Quite simply, this is a case of making up the law to suit the court's fancy. There are zero, zip, zilch grounds for litigation on its use. There is no case to answer and to think that there is conflate politics with law.
Gladu likely just ended her political career in Sarnia. I expect Carney has compensated her well for this.
Just 3 months ago, she said MPs crossing the floor should be forced to resign.
"Back in January, Gladu notably backed a Conservative colleague’s petition that called for automatic byelections when a member of Parliament defects to another party." From the National Post.
She is apparently quite the social conservative too, so this is quite the awkward fit.
So, the Jack Horner saga, eternally-returned with a Sarnia soccer-mom(*).
(*) 1979 was the first election I followed in real-time, but I had zero political sophistication, and knew only that Trudeau and the Liberals were bad, Clark and the PCs were good, and that Jack Horner had been a PC and was now a Liberal and that a lotnof people in Alberta were VERY angry about that.
I'm not sure how much Trudeau's embrace of the redneck Horner outraged progressive Liberal opinion at the time, but I'm guessing that Carney, now established in the collective mind of the centre-left as the indispensable bulwark against the trumpification(peaceful or otherwise) of Canada, can get away with high-fiving an anti-weed, transphobic, vaccine-denialist and "Christian heritage" dog-whistler of relative obscurity.
Ideally, the NDP would be able to call out the Liberals for hosting such dubious company, but "ideal" likely doesn't describe much about that party's situation right now.
Gladu likely just ended her political career in Sarnia. I expect Carney has compensated her well for this.
Just 3 months ago, she said MPs crossing the floor should be forced to resign.
"Back in January, Gladu notably backed a Conservative colleague’s petition that called for automatic byelections when a member of Parliament defects to another party." From the National Post.
Yeah. I haven't done a formal study of this, but my casual overview would be that floor-crossers are NOT universally punished for their infidelity and/or accompanying hypocrisy. Though electoral reprimands do sometimes happen, eg. the aforementioned Horner.
It really speaks for itself. This is one I believe Carney will rue as Gladu will be a loose cannon and a thorn in his side.
A leopard does not change its spots.
I guess it depends whether she's more of an ideologue than an opportunist.
FWIW, I think pot-shops are a dead issue in Canadian politics, and are provincially regulated anyway. Not sure how likely a significant anti-vax controversy is to arise in the near future.
Apparently, Carney has assured everyone that Gladu will be voting with the government on abortion and LGBQT-rights. But in her own speech, she used language that seemed to praise Carney as tough on crime, so maybe that's a direction she could try to push him further in?
Just watched CTV's The Front Bench on the Gladu defection. Christy Clark framed Gladu's motivation as "want[ing] to be part of building Canada", and the Liberal Party's basic characteristic as "a party that welcomes everyone, regardless of ideology", which the Conservative panelist pointed was just another way of saying they're opportunists.
The reason Canada abandoned this strategy in favour of tighter party control is that it led to incredible instability in the pre-Confederation Legislative Assembly of the Province of Canada. Governments came and went with nary an achievment to their name.
The reason Canada abandoned this strategy in favour of tighter party control is that it led to incredible instability in the pre-Confederation Legislative Assembly of the Province of Canada. Governments came and went with nary an achievment to their name.
I doubt we want to return to to that time.
By "this strategy", do you mean parties being basically loosely organized factions, which members were more or less free to move between, depending on what issues were relevant at a given time?
Yes, including the connected effort of providing whatever bribe, career goodie or riding perk to facilitate the transaction. Often they were called 'Loose Fish'.
Yes, including the connected effort of providing whatever bribe, career goodie or riding perk to facilitate the transaction. Often they were called 'Loose Fish'.
That is the kind of outcome I always envision when someone engages in cheap anti-Westminster populism along the lines of "Why is everything so adversarial? Can't the parties stop screaming at each other like eternal enemies and start co-operating together?"
Apparently, Gladu's constituency office got plastered with a few signs late last week, vilifying her for crossing over.
Not sure how representative that is of opinion in her riding. I was living in Dave Kilgour's riding when he crossed over to the Liberals, and while I did hear some people complaining about it, he managed to remain in parliament as a Liberal for 15 years, and a couple after that as an independent.
To that end the Liberal Caucus should strongly consider a programme for its members of smoking cessation, regular physical exercise and mandatory vegan meals at tbe Parliamentary Restaurant.
Comments
Stranger opponents I cannot think of.
So IOW the debate was...
With Danielle Smith back in Edmonton quietly nodding along with Quebec's homily.
Government involvement in the market place is never a good thing. They do not have to compete economically. They can undercut regular grocery stores, because they will be funded by the government.
I am struggling to see the problem.
And I assume there are few remaining takers in the NDP for an asymmetrical-federalist approach along the lines of "Quebec can invoke 33 if they want, because they have a culture to protect, but the rest of the provinces need to fall in line and honour the Charter as the final authority" ?
It was an interesting battle between two causes near and dear to the NDP's heart.
Yeah. It's not quite clear to me where general public opinion is on 33, but I'm pretty sure that at least outside Quebec, there's next to zero market for "Everyone has to shut up and follow the Charter, except Quebec."
And even in Quebec, I suspect there's at least a section of pro-33 opinion that, if promised that Quebec would be allowed an exemption to judicial supremacy, would still consider it an ominous precedent that a major party was willing to impose it on everyone else.
But the corporate welfare bums reign on.
I admit I think there’s something fundamentally weird about a party that has never been in power federally debating the use of the federal disallowance. Even in a section 33 world, there are practical strategies for trying to counter anti-transgender policies in Saskatchewan and Alberta - they go by the names of the Saskatchewan and Alberta NDP. Getting either party into power in the next provincial election would not be a simple task but they are both official opposition parties that have been in power in living memory.
Our constitution has legitimate counter-majoritarian tools in the Charter and generally in section 52 of the Constitution Act. But there are risks in getting in the habit of using the Charter as a solution to all problems - politicizing the judiciary being one of them and losing the habit of making one’s case to voters as part of the ordinary democratic process being another. With the result that at a purely functional empirical level there’s a risk of the system becoming unstuck. We may well be starting to see the effects of this in the current rash of section 33 at the provincial level. I’m not sure that doubling down on unruly provincial governments with federal disallowance is actually a solution to that problem.
Though I do find Marsupial's assertion on Charter litigation incongruent as it changes the goalposts on the primary function of any Charter or Bill of Rights: to protect a minority from the tyranny of the majority, which is explicitly anti-majoritarian and a limit on democracy,
Well, the NDP has all sortsa policies meant for the federal level, all of them adopted without the party ever having been in power federally.
But, yeah, given that federal-provincial relations are probably the most fraught aspect of the Canadian polity, there might be a slightly comical bravado in a party with six seats announcing "We are going to smack down any and all invocations of 33 wherever they're attempted!!"
I understand how the Charter works in theory but how these instruments work in practice is a whole other topic. Practically speaking I think keeping popular opinion onside over the long run is crucial to the system not falling apart. As I said, when we see a rash of section 33 being invoked it’s a sign that things may be starting to come unstuck. I think doubling down by invoking another counter-majoritarian tool like disallowance may be counterproductive in the long run.
The rubber only hits the road for charters when they protect the weak and unpopular. Otherwise it's just inconsequential fluff.
I would say that that the recent spat of s.33 invocation we've seen is not an example of the system becoming unstuck as much as polutical grandstanding run amok. I was at the general strike called in Ontario after Ford ordered the educational assistant back to work and invoked s. 33. He was forced to retract and negotiate.
Carney's foible with s. 107 of the Canada Labour Code was along the same lines.
Very credible arguments, and as a constitutional just-societiest who now REGRETS his vote for Charlottetown, ones I can probably get behind. But in terms of the feasibility of it all...
Let's assume the NDP can get an ideologically unified majority, but one that corresponds with a period in which a few provinces are running amuck with 33: Alberta's banning drag shows, Quebec's outlawing crucifixes in strip clubs, some Newfoundland Liberal demagogues are trying to symbolically prohibit the flying of the Maple Leaf for one day to protest whatever unfairness they think Ottawa is visiting upon their province etc, all under the protection of Notwithstanding.
How easily would you say the federal government could just start handing out the Disallowances like parking tickets, without it becoming a major impediment to the smooth maintenance of federal-provincial relations and, ultimately, national unity? Do you posit that after one or two smackdowns, those provinces and all the potential recalcitrants will just shrug and say "Oh well, I guess Ottawa means business. No more 33 for us!"
s. 33 was never about the smooth functioning of Confederation. It was an instance of political sausagemaking and a deeply flawed concept. It was hardly used for 35 years, even Quebec gave up its practice of regularly asserting it just because it didn't like the idea of the Charter overturning its legislation. And then it sprang back to life five years ago.
The only thing that justified s. 33's existence was that it was supposed to be rare. Again, a deeply flawed and uneforceable concept. What's coming unstuck is not Charter rulings but the muddle over the Notwithstaning Clause that kept the Charter going.
Coyne's thesis is that you fight fire with fire and to be fair to everyone you invoke it every time s. 33 is used, no exceptions. Not for language, not for parent's rights, not for labour relations. It's the only way you can maintain credibility that you are enforcing a principle.
Quebec would scream bloody blue murder, so would Alberta but it would engender a serious conversation about rights enforcement that this country has avoided for forty years.
I should start with the observation that nobody in the NDP has ever asked me for my opinion on these issues and I’m not in the habit of showing up at political conventions and offering unsolicited advice on sensitive topics. But if somebody did ask me my opinion, these are my concerns.
First, disallowance hasn’t been used for over 80 years and the Supreme Court has expressed doubt over whether it’s still an effective power. I know you disagree with the SCC but Canadian law is what the SCC says it is and ultimately the fact that you or I or Andrew Coyne may disagree is neither here nor there. It’s entirely possible the Court would uphold the power if feds decided to force the issue - there’s been a lot of water under the bridge since the Court last opined on the issue - but it’s possible they wouldn’t. The certainty is that there would be litigation and it would be long and complicated.
The other issue is that this is all occurring on the broader context of the politics of Western alienation, federal-provincial relations, and broad East/west urban/rural cultural politics. Which is to say there is a risk of trans and nonbinary people becoming collateral damage in a battle that is not being framed as about what is in the best interests of gender minorities and is to a large extent really about something else. Whatever happens after a successful disallowance it’s not going to be Danielle Smith coming into line and admitting the error of her ways. Pierre Poilievre came within an inch of becoming prime minister in the last electoral process and his electoral debts are to the same kinds of people who put Danielle Smith in power. Not only has he threatened use section 33 but also, completely uncontroversially, he would have the right to appoint (though not dismiss) federally appointed judges including the judges of all the appellate courts in the country.
This is feeling a bit like a debate between a theist and an atheist - you’re saying there should be some sure fire way of overturning bad law when legislatures go off the rails, and I’m not necessarily disagreeing with you in the abstract. I’m saying that in reality there is no sure fire way of doing this if push really comes to shove, and political strategies need to reflect this.
Just because it makes the Court uncomfortable doesn't not make it illegal.
Quite simply, this is a case of making up the law to suit the court's fancy. There are zero, zip, zilch grounds for litigation on its use. There is no case to answer and to think that there is conflate politics with law.
Just 3 months ago, she said MPs crossing the floor should be forced to resign.
"Back in January, Gladu notably backed a Conservative colleague’s petition that called for automatic byelections when a member of Parliament defects to another party." From the National Post.
I have to think that Polievre is going to walk the plank soon.
So, the Jack Horner saga, eternally-returned with a Sarnia soccer-mom(*).
(*) 1979 was the first election I followed in real-time, but I had zero political sophistication, and knew only that Trudeau and the Liberals were bad, Clark and the PCs were good, and that Jack Horner had been a PC and was now a Liberal and that a lotnof people in Alberta were VERY angry about that.
I'm not sure how much Trudeau's embrace of the redneck Horner outraged progressive Liberal opinion at the time, but I'm guessing that Carney, now established in the collective mind of the centre-left as the indispensable bulwark against the trumpification(peaceful or otherwise) of Canada, can get away with high-fiving an anti-weed, transphobic, vaccine-denialist and "Christian heritage" dog-whistler of relative obscurity.
Ideally, the NDP would be able to call out the Liberals for hosting such dubious company, but "ideal" likely doesn't describe much about that party's situation right now.
Yeah. I haven't done a formal study of this, but my casual overview would be that floor-crossers are NOT universally punished for their infidelity and/or accompanying hypocrisy. Though electoral reprimands do sometimes happen, eg. the aforementioned Horner.
A leopard does not change its spots.
I guess it depends whether she's more of an ideologue than an opportunist.
FWIW, I think pot-shops are a dead issue in Canadian politics, and are provincially regulated anyway. Not sure how likely a significant anti-vax controversy is to arise in the near future.
Apparently, Carney has assured everyone that Gladu will be voting with the government on abortion and LGBQT-rights. But in her own speech, she used language that seemed to praise Carney as tough on crime, so maybe that's a direction she could try to push him further in?
I doubt we want to return to to that time.
By "this strategy", do you mean parties being basically loosely organized factions, which members were more or less free to move between, depending on what issues were relevant at a given time?
That is the kind of outcome I always envision when someone engages in cheap anti-Westminster populism along the lines of "Why is everything so adversarial? Can't the parties stop screaming at each other like eternal enemies and start co-operating together?"
Not sure how representative that is of opinion in her riding. I was living in Dave Kilgour's riding when he crossed over to the Liberals, and while I did hear some people complaining about it, he managed to remain in parliament as a Liberal for 15 years, and a couple after that as an independent.