The Smith Referenda In October

Albertans face a daunting prospect on October 19 - not one, but 10 referendum questions that they will vote on.  On the agenda are a passel of manufactured issues ranging from "control over immigration" to "appointing judges", all topped off with a whipped turd froth of a separation question. 

There are good reasons to be skeptical of all of these referendum questions.  Not the least of which is the complexity of them.  Each one is lengthy reading on its own, and is crafted to confuse the average person reading them.  My intuitive reaction is to suggest that on the basis of the wording being less than clear, that it is utterly appropriate to vote 'No' on the first 9 questions and "A" on the separation question.   That is basically voting for status quo. 

No, The SCC Won't Rule Along The Lines Alberta Wants

 I've seen a few people arguing that the Supreme Court of Canada (SCC) is obliged to rule in favour of the Provinces like Alberta (the ones that want to use the Notwithstanding Clause (NWC, S33) any old way they wish).  The argument generally relies on the idea that the NWC is very broadly written and there are no explicit limits to its application in the text.  

Both of those claims are true.  I don't think any reasonable lawyer or judge would argue otherwise.  That analysis is also a very narrow analysis and ignores the rest of The Charter, as well as the role of The Constitution as a whole in Canadian law and government.  

Alberta argues that the NWC does not require any "substantive requirements" and that the courts have no role once it is invoked.  The Alberta argument depends heavily on the case Ford v. Quebec (Attorney General) 1988 (Ford).  However, the Ford case talks about the invocation of S33, and does not interrogate the questions that are before the court in Montreal English School Board et al v. Quebec Attorney General.  The questions before the court now are much bigger in scope, and the impact of those questions is much greater. 

Alberta relies heavily on the notion of "Legislative Sovereignty".  As I argued back here, this concept is an unwritten convention in Canadian law, and while important, not one that is laid out in any meaningful way in The Constitution.  While the legislatures are sovereign in that they are the only body which may enact laws, that doesn't extend to being able to arbitrarily rewrite laws further up the hierarchy of Canadian law.  The Constitution has amending formulas specifically for that purpose.  

Alberta's argument extends the conventions in Ford for using the NWC to argue that not only is there no cause for the courts to examine an invocation of the NWC, but in fact the court has no power to examine a law that is protected by the invocation of S33.  While Ford does set out a set of legal requirements for the "proper legal invocation of the NWC", the case itself did not raise the questions that are now before the court in Montreal English School Board et al - those questions are much more about not merely the invocation of the NWC, but they go more fundamentally to the intended role of the NWC, and the fundamental purpose of The Charter and Constitution, as well as the role of the courts and legislatures in our system of government. 

Alberta in particular seems to argue that "Legislative Sovereignty" is so broad that it actually extends well into the domain of arbitrarily ignoring The Constitution if it so chooses.  The Alberta argument demands that the SCC reject what it calls "Creative Arguments" regarding the NWC.  Unfortunately for Alberta, this requires demanding the SCC ignore contextual and purposeful readings of The Constitution, as well as decades of important precedent cases that guide the manner in which the courts interpret The Constitution, and in particular The Charter.

Questions Before The Court

I have examined this case in depth, and I continue to do so.  Unlike in Ford, the SCC is now having to weigh multiple questions that are arguably much more important: 

1.  What is the context of The Charter as a whole?

Before you say "nah, that's not an issue", consider the arguments put forward by The Attorney General of Canada which argues that the NWC is limited by its context within The Constitution.  Since the Constitution has an amending formula, that the NWC should not be used to arbitrarily amend The Charter through legislation.  This is a huge issue, and the court has never been asked to examine The Charter (and the NWC in particular) in such a manner before.

13.  The text of s. 33 must then be interpreted in light of its context and the scheme of the Charter and the Constitution as a whole. This interpretation, it is submitted, brings to light the constitutional limits on the use of s. 33.

2.  Does the context of The Charter place "natural" limits on the application of the NWC?

Again, the courts haven't really been asked to engage with this question previously.  Legislators have not used the powers in the NWC in the manner that Quebec, Alberta, and Saskatchewan have in the last few years.  All three provinces have used the NWC in a manner which narrows rights in some political social engineering - in Quebec, it's to quash religious symbols; in Alberta and Saskatchewan, it's to quash the existence of transgender people. 

3. In the Canadian hierarchy of law does the NWC allow provinces to place their laws outside the framework of the Constitution?

This is a much more insidious question to consider.  If we accept the Alberta position that the NWC is an all purpose "sledgehammer", then legislation like Alberta's so-called "Sovereignty Act" suddenly moves from being ultra vires to being normal and understandable.  More concerning is that it effectively undermines The Constitution and Charter as defining the legal framework of the country.  

This question itself isn't directly before the courts, but it is a matter which arises from whatever ruling the court does come up with.  However, the way that Alberta and Quebec are utilizing the NWC places laws written in those provinces outside the framework of Canadian law - a reality which could result a much more dangerous context for Canada where the provinces redefine themselves as highly fractured fiefdoms all with dramatically different approaches to law and rights in Canada.

Consider the prospect of a province writing its own "Charter of Rights and Freedoms" which is much narrower and more hierarchical than The Charter, and simply invoking the NWC to insulate their "unique" Charter from scrutiny.  Alberta has already demonstrated that it takes a very different view of rights and law (or at least the current UCP government does), and would quite happily use the NWC to legislate away the rights of many, or make rights conditional on compliance with some religious standard (depending on who has what beliefs). 

4. Does the use of the word "Guarantee" throughout The Charter have any practical weight?

Central to the wording of The Charter is the word guarantee, and it is used a dozen times throughout The Charter.  I've argued previously that this is a very important aspect of the discussion around the NWC.  The repeated use of the word Guarantee provides key insights into the intent of the authors of The Charter.  As the intervener Egale Canada argues, the principle of Minority Protection suggests strongly that in fact there can be limits on the application of the NWC: 

Just as, outside the public law context, discretionary powers may not lawfully be exercised for an improper or extraneous purpose, so too may the extraordinary power of the notwithstanding clause not be used to protect the operation of a law the very purpose of which is incompatible with the principle of minority protection — and thus with the core commitments of a liberal, democratic society.

If, as Alberta seems to desire, the NWC operates without limits, then effectively the courts will have discarded not only the principle of Minority Protection, but more seriously it will have rendered the meaning of the word guarantee moot within the Canadian Constitution.  I cannot emphasize enough how this reaches beyond The Charter and into the broader world of Canadian constitutional law by effectively changing the meaning and importance of a word. 

5.  To what extent do provinces have the power to further constrain the rights enjoyed by their citizens, and for what reasons?

I don't see this as an explicit aspect of this case, it is an implicit one.  The provinces are arguing that the NWC grants them sweeping powers in this regard, and in doing so they appear to be engaging in a serious power grab.  If the NWC is allowed to function without boundaries on it, then we find ourselves in a situation where both The Charter and the courts are rendered moot.

It's this last point that makes me think the courts are unlikely to simply lob the ball to the politicians.  Why would the courts choose not only to negate The Charter, but also to make themselves irrelevant in the interpretation of The Charter, and potentially The Constitution itself?  Doing so would fundamentally change the role of the courts in our system of government - rendering the courts completely unable to make any kind of ruling on legislative violations of The Constitution, and opening all Canadians up to laws which violate their fundamental rights simply because some politician decides they want to. 

How Do I Think The Court Will Rule?

This one is complicated, because there's the answer I'd like to see, and then there's the probability that the SCC will rule somewhat away from that ideal. 

The ruling I'd like to see is for the SCC to adopt the arguments made by the Federal Attorney General fully.  That would restrain provinces from many of the more abusive applications of the NWC that we have seen, if not render the NWC functionally moot. 

Of course, I expect the SCC to be quite circumspect in its analysis, threading something of a line between the provincial notions of "legislative sovereignty" and creating a formula surrounding the NWC that is almost impossible to navigate.  

Across the submissions to the SCC in this matter, the absolute floor ruling will be that even when the NWC has been invoked, that the courts will have the power to examine and make a declaratory ruling on the legislation itself.  While provinces might argue that such cases are moot, I do not see the court taking the position that no law protected by the NWC can be inspected as that would make the courts irrelevant in the processes around rights law in Canada. 

I further anticipate that the court will find that a renewal of an invocation of the NWC is really starting the process of an amendment, and therefore a renewal itself could in fact be subject to direct challenge in the courts on those grounds.  This still creates significant problems for people who find themselves under attack by government laws that infringe upon their rights for at least 5 years.  

As poetic as it is, the Federal argument around long lasting harm caused by the invocation of the NWC may not garner the attention from the SCC that perhaps it actually deserves:

3. ... Accordingly, any right or freedom referred to in an express declaration made under s. 33 must retain its integrity so that it can be fully exercised when the declaration expires—just as a lightbulb should shine as brightly as it did before being temporarily turned off.

5. The constitutional limits of the s. 33 power preclude it from being used to distort or annihilate the rights and freedoms guaranteed by the Charter, or to reduce them to des peaux de chagrin, that is, to shrivel them beyond recognition, if not transform them into mere legal fictions. Courts have the responsibility to ensure that these limits – which were neither considered nor rejected by this Court in Ford – are respected.

As much as I personally think this is a brilliant piece of legal reasoning, it could rely a little too heavily on the arguments around the application of the NWC being an instrument for temporary situations.  I think that the SCC may well sidestep the issue somewhat, and push it back to the politicians to sort out.  Given the current provincial legislative picture, this would not be a good thing. 

The flip side is that the Attorney General of Canada does tie this argument back to the 1998 reference ruling on Quebec Secession, which specifically addresses matters of both rule of law, and protection of minorities.  The SCC may choose to recognize that link to the Quebec Secession reference as significant and be unwilling to discard one of the court's seminal rulings in Canadian constitutional law.  

A final possibility in how the SCC might rule is basically to declare the NWC to be too ambiguous in its role relative to the rest of the Constitution that there is no apparent valid test that the court can come up with that would reasonably guide its application, and therefore it is inoperative until such times as Canada's political leadership is able to agree upon a framework in which it could operate.  

A ruling of this nature would basically be throwing the entire thing back into the hands of politicians, and potentially is even more destructive to Canada's constitutional system than a highly restrictive ruling such as what the Attorney General of Canada is seeking.  If you will, consider the uproar over aspects of both the Meech Lake and Charlottetown accords, and then apply it to today's context where a sizeable number of premiers seem disinclined to actually engage in any kind of good faith negotiation.

How Will The Provinces React?

While I have no doubt that most provinces will be less than happy with any constraints on the NWC, it will be Alberta that makes the most noise about it.  Danielle Smith has already signalled her likely reaction and avenues of response.  

First, she will attack the courts, complaining that "unelected judges" are "making law".  This is a reprise of the "activist judge" meme that gets dragged out every time conservatives don't like a court ruling.  It's not new, nor is it particularly noteworthy.  She will no doubt extend this to claim that the judges are "frustrating the will of the majority" - in spite of the fact that the legislation she has used the NWC to protect is a "concern" only to a small group of people, with most of the public unaware of the topic, much less having any real opinion on it.  

Smith has already begun attacking the judiciary and the courts.  Demanding more political control over judicial appointments, and complaining loudly about not being able to "direct the courts".  As a citizen of Canada, the idea of a politician "directing the courts" is horrifying to me.  The potential for gross miscarriages of justice is enormous when a politician decides that a particular case should be used to their advantage in getting re-elected. 

On the matter of "an elected judiciary", I am firmly opposed to the concept.  The idea of a judge interpreting/applying the law whilst simultaneously having to concern themselves with how "the public" might perceive what they do is simply putting the judge in a position of a direct conflict of interest between their job and their desire to keep that job.  As I have learned in my own relatively casual study of law and in particular constitutional law in Canada, it is a job far more akin to that of a surgeon than it is that of an elected politician.  Surgeons often do things which "the average person on the street" would see as unpalatable, but they do it because it's necessary in the moment for the patient.  Likewise, judges have to read and apply law in a manner that much of the public will not fully understand.  I don't "vote" on who becomes a surgeon, nor do I think it wise to vote on who gets to be a judge. 

I would not be surprised to see Smith pull out her much vaunted "Alberta Sovereignty Act" and declare that Alberta will simply disregard The Charter because it infringes on her "legislative sovereignty".  I have long argued that this legislation is ultra vires - the province of Alberta does not possess the power to simply declare itself exempt from a federal law that it doesn't like.  There is nothing in our Constitution which permits that kind of "I turn my back on you" action.  The province always has the right and resources to challenge a Federal law that infringes on its powers in the courts. That is the correct path for these issues.  

Smith has already begun lobbying other Premiers to garner support to push for revisions to the current judicial appointments processes.  This will create pressure on the Federal Government to open a Constitutional Amendment process, which is no doubt where provinces like Alberta would demand expanding the scope of the NWC, as well as seizing further powers for themselves in an effort to make any kind of federal oversight of the provinces even more difficult. 

Addendum

I would like to draw your attention to the above quote from paragraph 40(iii) of the Attorney General of Canada's submission.  It raises several very extreme, but important hypotheticals that the Attorney General of Canada wishes the court to consider in its deliberations over the NWC.  These might seem extreme today, but they are important analogues to very real situations emerging today.  

Let's consider the prospect of a province tabling a US-style "bathroom bill" excluding trans women from using female gendered washrooms and locker room facilities.  These types of bills are very much "Jim Crow Laws" - designed to separate, segregate, and humiliate their targets.  They are not just laws in any real sense of the word "just".  These are laws with a particular social engineering goal in mind, and it is a goal that attacks a group on the basis of assumed characteristics rather than demonstrable characteristics. 

The SCC has a very real issue to consider here.  If they rule that the NWC is an unbounded tool, the question becomes "what is there to stay the hand of a government that chooses to pass any law it wishes, no matter how much damage it does to the notion of Canada as a Free and Democratic Society?". 

In particular, given Alberta's recent heavy handed applications of the NWC, the SCC should be considering this type of hypothetical scenario very carefully - because it's really not that hypothetical. 

The SCC Ruling On Quebec's Secularism Law Will Be More Profound Than You Think

We've had a few weeks now since the hearings at the Supreme Court of Canada (SCC) in the matter of Montreal English School Board, et al v. Quebec Attorney General, and I expect that it will be some months before we see a ruling from the SCC.  

However, the importance and scope of the ruling in this case needs to be discussed, because this case may fundamentally change our understanding of The Charter, as well as the powers of legislatures.  Much has been made of the impact this case may have on the rules around the application of the Notwithstanding Clause (S33).  I've written at length about it on this blog. 

However, while its impact on the ability of legislature to use S33 will undoubtedly be profound, it also will have significant implications for the concept of "legislative/parliamentary sovereignty" or "legislative supremacy" (pick your term - they seem to be used somewhat interchangeably).  

Now She Wants To Amend The Constitution

 So, having had her public temper tantrum over appointing judges, Smith now wants to amend the Constitution so that the decision about who gets to sit as a judge is made by her alone. 

To be abundantly clear - painfully so - this is a power grab.  Worse, given Smith's track record, this would ultimately turn out to be nothing less than the politicization of the judiciary.  

She claims that Alberta doesn't have a say in appointing judges to the senior courts in Alberta.  This is false - Alberta very much has a seat at the table, but the political seat at the table is not the controlling seat, and that's what Smith is actually upset about.  

Unjust Laws and Restricting Rights Unnecessarily

Alberta has already begun restricting transgender rights, and in the wake of the shooting in Tumbler Ridge this week,  I fully expect that the UCP government will move to further restrict transgender rights in Alberta - there's already plenty of noise on various conservative discussion forums demanding "action", and if there's one thing that Danielle Smith is good at, it is doing her party's bidding when it is at its most loathsome.  

I have spent considerable time analyzing those laws, and at best they are ill-thought out reactionary responses to imagined problems rather than actual issues.  However, in a country where politicians can legitimately override rights by invoking the Notwithstanding clause, what can we the public do to undo the damage done by a reactionary government?  

We Are In A Constitutional Crisis

We Are In A Constitutional Crisis

Lots of people are arguing that if the Supreme Court of Canada (SCC) rules to restrict the Notwithstanding Clause (S33) or the Governor General dusts of the disallowance powers, that it wil trigger a constitutional crisis in Canada.  They are mistaken.

The minute Alberta and Quebec decided to legislate to unreasonably restrict or eliminate rights guaranteed under the Charter, they thrust a constitutional crisis upon all of us.

Quebec, with its "Bill 21" has imposed an unreasonable limitation on religious freedoms for those who work in the civil service of that province.  Quebec’s CAQ government has wrapped a thinly veiled attack on non-Christian faiths in a blanket ban on religious symbols and public prayer.  I don't care how much you want a "secular society", this is going way beyond anything that is defensible under S1 of The Charter. 

In comparison to Quebec, Alberta has been much more aggressive, using S33 to strip workers of rights to collective bargaining, labour action, etc. and to attack transgender people in Alberta.  Further, several of the UCP's more recent actions involve "invoking" Smith's so-called "sovereignty act" - a piece of legislation where the government claims it can simply ignore laws from Ottawa that it doesn't like.  Arguably, that law is on its face unconstitutional - it's little more than a power grab on Alberta's part. 

Make no mistake about it, we are in a constitutional crisis right now.  The minute that two provinces decided that they could redefine what rights citizens in their provinces could enjoy for purely ideological reasons, we were thrust into a crisis. 

Quebec's use of S33 with Bill 21 does not stand up to scrutiny - especially not when it came out in the wake of a failed bid to ban hijabs and other "traditional" headwear.  Bill 21, although it doesn't say it, attacks those whose religiosity is publicly visible - to what end?  What crisis is this addressing that makes the invocation of S33 justified?  As far as I can tell, there is none.  

Similarly, Alberta's use of S33 are indefensible.  The teacher's strike issue might contain a shred of justification in that it is important to resolve the strike quickly.  However, it fails on a subsequent test of whether the government had used (and failed) all of its statutory options - however the government left any number of instruments on the table, up to and including binding arbitration, and went straight to the nuclear option.  

The Alberta government's anti-trans legislation is based on a horrendous amount of disinformation, lies, and hysteria.  It does not stand up to any kind of scrutiny - the evidence it is based on is largely the same pseudo-science evidence that gave us The Cass Review in the UK.  I cannot imagine any aspect of Bills 26, 27 and 29 standing scrutiny under S1 of The Charter.  Smith went to the Notwithstanding option when it was becoming clear that those laws would collapse in the courts under Charter review.

How exactly does Alberta and Quebec end up in what seems like a most unlikely alliance?  Well - truthfully, I don't know the exact answer to that, but we do have some clues.  Really, it stems back to Kenney courting Alberta's extremist fringes, and then musing out loud about "the flames of separatism".  Kenney would go on to provide political support to the "Yellow Vest Convoy" and the subsequent "Freedom Convoy" protests.  Kenney definitely set the UCP on course to align with a separatist/isolationist government in Quebec. 

It should not come as any surprise that a separatist leaning government in Alberta would pivot towards asking Quebec for advice.  It's an old saw in Alberta politics that Quebec receives unmerited "special treatment".   So, an Alberta government desiring to "have more influence" might well look to Quebec for ideas and political strategy.  

Make no mistake about it, Danielle Smith has played a central role in pushing things to where they are.  It is a crisis, and it is a constitutional crisis.  Just because you aren't directly affected by the rights that have been revoked by the UCP in the last 2.5 months, the fact is that the UCP has declared that they see themselves as the final arbiters of what rights you are allowed in Alberta.  If this is allowed to stand, the use of the language "guarantees" in The Charter becomes meaningless, and that would be the most significant change to human rights in Canada since 1982. 

Consider the implications of major cases before the SCC now:

S33 has been used to limit rights without any kind of urgent situation in play.  Sure, Smith and the UCP will argue that there is "urgency" around Bill 26 because "there might be harm to children", and Legault's government no doubt argues that there is "urgency" in fostering a "secular society" that is free from religious symbolism.  Neither party has shown that they are responding to an actual emergency situation.  The governments in both cases could have taken far less drastic steps than they have to develop a basis upon which to act.  

Having taken the actions that they have, Alberta and Quebec have essentially taken the position that "provincial legislatures get to decide your rights".  Think about that carefully for a few moments.  This means that the entire civil rights regime in Canada for the last 40+ years has just been upended and is now very much in limbo.  Your fundamental rights under The Charter at this point are no longer guaranteed as a Canadian.

I want to be very clear about how dangerous that really is.  The approach being taken by the provinces is essentially "we can legislate however we like, and you have to just suck it up".  This is extremely dangerous for minority rights in Canada - especially gender and sexual minorities who are already subject to significant discrimination and marginalization.  Looking at Quebec's actions, even religious freedoms are subject to arbitrary limitations made by governments who decide that they don't like one religion's practices.  

Pick any other right you can think of, including matters of justice.  A province could decide that it is going to legislate that "anyone accused of a certain class of crime must be held in custody", and presto, there goes your right to bail.  Again, even though that is technically criminal law, the province could still invoke S33 to enforce it.  Similarly, a province could decide that a people with particular characteristics need to be held in custody "for their own good" (see Alberta's approach to addictions), and invoke S33 to prevent challenges based on "security of the person" and other individual freedoms.  

This is very much a crisis.  It might not affect your rights today, after all trans people are only a fraction of a percent of the overall population, and likewise, members of the Quebec civil service are also a relatively small fraction of the population of the province.  You probably know people who are affected by these changes directly, but because they don't affect you directly, it may seem a little abstract.  I encourage you to look through history where governments have chosen to strip people of rights for political reasons, and consider the idea that a government willing to strip one group of rights is more than willing to strip you of yours. 

If allowed to stand unchallenged, Danielle Smith and François Legault may well have ended the ordered constitution of Canada. 

May I Introduce The Phrase "Ultra Vires"?

Alberta plans to invoke its "Sovereign Alberta" legislation as part of "fighting back" against federal firearms legislation that bans firearms that are commonly seen as "military-style".  As the first application of the "Sovereign Alberta in a United Canada" legislation, you can expect to hear a lot about this subject in the coming months.  

I'm not going to opine on the merits of the federal legislation/regulations at issue here.  Gun control and rights around firearms in general are contentious at the best of times, and I think that people who are on either side of the issue already have their opinions and arguments set out.  

This post is going to be about the "Sovereign Alberta" legislation and what it purports to do.

Deep Dive: Intervenor Arguments Regarding S33

 With some 60 or more intervenors in English Montreal School Board, et al. v. Attorney General of Quebec, et al. before the Supreme Court of Canada (SCC), there is a ton of material to delve into - that's far beyond this writer's time and scope of knowledge.  However, there are lines of reasoning that I do wish to explore in some more depth - especially as regards the nature of S33, and how its application might be limited in the future.  

In particular, I want to examine arguments put forward by: 

• The Attorney General of Canada
• EGALE
• The Attorney General of Alberta

This is, of course, far from a complete list of interesting submissions, but a representative sampling of the ones I found the most relevant to the issue of legislatures applying S33 (The Notwithstanding Clause) pre-emptively to shield legislation from scrutiny.  Let's dive in. 

What Is The Goal of the Alberta Sovereignty Act?

Since Danielle Smith first started advocating for the so-called "Alberta Sovereignty Act", much digital ink has been spilled over how it's unconstitutional, if not downright illegal under Canada's laws today. 

In general I agree with this perspective, but I also do not think the intent is "to play within the rules" here. After the CPC lost the 2015 election, and Harper effectively "rage quit" elected politics, I suspected that we had not seen the last of his shadow in Canada's politics. 

To be sure, he has remained a controlling influence in the CPC, and I'm fairly certain that his machinations led ultimately to the hamstringing and downfall of both Andrew Scheer and Erin O'Toole. When Poilievre stepped back from running to replace Andrew Scheer, I wondered what was up.  There was no question in my mind that he had more than a good chance of defeating the rest of the field of candidates - I concluded at the time that Poilievre's sudden "step back" was coordinated by someone close to Harper who rightly figured that the odds of defeating Trudeau were slim, a matter of "keeping one's powder dry" so to speak. 

In 2015, I commented to a sibling that now that voters have made it clear that Harper wasn't going to "rule over them for life", that conservative backrooms were now trying to figure out how to "blow Canada up" politically.  

Since then, we have been bombarded by a series of initiatives. That has been everything from the formation of the UCP (Harper was heavily involved in organizing this) in Alberta, to increasing the coordination across conservative Premiers (it's been fascinating to watch them all start singing from the same song sheet during the COVID pandemic), to a series of political pseudo-separatist initiatives like the so-called "Buffalo Declaration" and the "Free Alberta Strategy". 

The intent is basically to drive division in Canada.  Play up old grievances from the Prairies - which are nursed and fed in Alberta to this day, claim that Ottawa is out to screw Alberta over, and so on. The underlying goal all stems back to Harper's anger over being defeated in 2015 - he was angry at that, and as one might expect, there's a certain amount of "If I can't have Canada, nobody can" thinking going on. 

This looks a lot like the classic domestic abuse strategem - isolate the victims, and convince them that only their abuser actually "understands" them.  

Bill C4 - Conversion Therapy Passed - Now What?

To my surprise, Bill C4 made it through parliament in record time.  Personally, I think this is a good thing.  However, I also know that Social Conservatives and Gender Critical factions will ally with each other to challenge the legislation in the courts.  

I suspect there was an agreement drawn up in the CPC caucus to allow the bill through with a minimal amount of fuss because they have finally figured out that pushing attitudes that go back to the 1950s probably isn't going over well with Canadian voters.  In a minority parliament, the last thing a party that has lost 3 elections in succession wants is to be tainted again with various members engaging in bozo eruption moments over a hobby horse issue.  

However, let's put political strategy aside and take a look at the likely avenues of attack that will be used in the courts to argue that Bill C-4 is either too broad, or overly intrusive into the lives of Canadians.  

Senator Plett Reprises His Complaints on Bill C-16

Whether we are talking about Bill C-16, Bill C-279 or Bill C-389, there has been one consistent thing in the Senate - the voice of Senator Plett droning on about how terrible this legislation is.  This week, second reading of Bill C-16 happened in the Senate, and sure enough Senator Plett had to stick his oar into the waters (audio here ... if you can stomach it).

I'm not going to dwell overly much on the whining note that Senator Plett starts off with:

Further Analysis On Marc Nadon's Appointment

Marc Nadon is, for now at least, out of the picture as far as Canada's Supreme Court is concerned.

Frankly, I know very little about Justice Nadon's beliefs and history as a judge.  I wouldn't be at all surprised if he happened to lean towards Mr. Harper's "hang-em-high" approach to justice - generally speaking Harper is far more prone to basing his appointment decisions on ideology and politics than other Prime Ministers in our history.

However, the Supreme Court's ruling on Nadon's appointment is not about Mr. Nadon or Mr. Harper's views on justice.

The Supreme Court's ruling is very interesting as it went after many of the same issues that I suspect strongly affect Harper's desires to unilaterally amend the Senate.  In effect, in appointing Mr. Nadon, Harper was ignoring a set of rules that had been clearly established for over a century.

The government does not have the authority to amend the Act, wrote six of seven judges, saying "the unanimous consent of Parliament and all provincial legislatures is required for amendments to the Constitution relating to the 'composition of the Supreme Court.'"

Frankly, it comes to me as no great surprise that Mr. Harper and his gang are once again attempting to modify the structure of government without regard for the laws of Canada and the Constitution of this nation.  First, Harper is not a lawyer.  He never has been, nor has he shown any particular interest in coming to understand the finer points of law.

Second, and more concerning, is that Harper is an ideologue.  His government has repeatedly pushed through laws only to have them struck down by the Supreme Court time and again - often on Constitutional grounds.  He doesn't guide his ministers to legislate effectively and within the framework of Canada's legal systems, but rather is attempting to forge an entirely new system by writing tons of laws and hoping that they stick.

Fundamentally, he's using the same tactics that we see the far right in the United States using - throw tons of obviously ridiculous legislation into the system, and hope that enough manages to survive to fundamentally change the underlying structures beyond recognition.

At this point, I'm beginning to suspect that the first step in undoing the appalling damage that this government is doing to Canada and its legal systems is going to have to be an omnibus bill that rescinds 95% of the legislation pushed through since 2006.  Most of it is unconstitutional, and of the remainder, much of it is just plain cruel and punitive.