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What a Justice’s leave of absence reveals about politics and the Supreme Court by ALLAN C. HUTCHINSON The Globe and Mail

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Allan C. Hutchinson is a distinguished research professor at Osgoode Hall Law School and the author of The Companies We Keep: Corporate Governance for a Democratic Society.

The controversy surrounding Justice Russell Brown’s leave from the Supreme Court, which began in February and is under investigation by the Canadian Judicial Council, has many different dimensions and implications. Apart from the question of whether he will or should return to the court following a confidential complaint from a member of the public, one issue occupying observers’ minds is what this means for the handling of cases presently before the court.

There are differences of opinion on whether the court should sit as a group of eight (and allow for the possibility of a tied vote) or seven (and face the dilemma of whom to leave out). This is a pressing issue, especially in regard to an important case to be heard this week on federalism and environmental legislation.

However, within and behind this debate is a much more fundamental matter – the relationship between constitutional law and politics. In particular, whether sensitive and contested issues of federalism are being decided in line with the dictates of constitutional law or by reliance on partial political stands and values.

The central bone of contention seems to be that the Albertan Justice Brown is considered to be a strong proponent of provincial rights and was almost certain to rule against the constitutionality of the federal government’s wide-ranging legislation to tackle pollution problems. So, if there is to be a bench of seven, the identity and federalism leanings of the justice who sits out the case must be treated as a matter of some delicacy and importance.

The premise on which this debate is based is troubling for those who maintain that constitutional law should and must trump constitutional politics. Traditionally, it is usually insisted that the legitimacy of the Supreme Court rests on its capacity to transcend political contestation by acting with measured, rational and non-ideological level-headedness. Judges deal in principles, not politics.

The received wisdom is that, while there are underlying and sharp ideological differences between different governments about climate change and the best response to be made, there exists a deeper and more unifying commitment to the idea that the Canadian Constitution stands apart from prosaic politics. While Prime Minister Justin Trudeau and his provincial colleagues play politics and get their hands dirty, Supreme Court Chief Justice Richard Wagner and his puisne associates are expected to keep their hands clean of any political dirt.

But the general acceptance that Justice Brown is pre-disposed to be pro-provincial and that some of his colleagues, including Chief Justice Wagner, are more than likely to be pro-federal, has massive ramifications. Any notion that these judges are somehow neutral and impartial goes out the window. They are involved in the same ideological game as their political counterparts.

The fact is that, while courts may well be impartial to the competing claims of the present federal and provincial governments in terms of party politics, they are not and cannot be impartial between competing visions and versions of federalism. Although viewed as being more technical than political, federalism disputes involve deep-seated and contested accounts of governmental arrangements, social values, institutional power and democratic accountability.

So, while courts and legislatures may have different discourses, different styles and different legitimacies when talking about a fair allocation of powers between the federal and provincial governments, they are no less political for that. In other words, judges can hide their views, but they cannot avoid making political choices.

The whole debacle over Justice Brown’s absence draws attention to this state of affairs. Perhaps inadvertently, but still revealingly, the ensuing debate has demonstrated that judges do have politics and that, more significantly, they do rely on them to animate their decisions and reasonings. Otherwise, why would it matter who sits and who doesn’t?

Both judicial sides of the federalism debate can claim support for their positions; the doctrines of constitutional law are so capacious, so inconsistent and so accommodating in their reach and substance that they can confer a necessary baseline of legal validity on either a pro-provincial or pro-federal approach. Understood this way, the rule of law becomes little more than the rule of five: the stand that garners the support of five judges wins.

None of this is to suggest that the judges act in bad faith or are decidedly manipulative in fulfilling their judicial duties. It is that there is no way to engage with and resolve federalism issues in a way that can claim to be acting in the neutral and detached way that the judges and their traditional allies suppose. Constitutional law is politics. And Canadians need to appreciate that.

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Bloc Québécois ready to extract gains for Quebec in exchange for supporting Liberals

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MONTEBELLO, Que. – The Bloc Québécois is ready to wheel and deal with Prime Minister Justin Trudeau’s government in exchange for support during confidence votes now that the Liberal government’s confidence and supply agreement with the NDP has ended.

That support won’t come cheap, the Quebec-based Bloc said, and the sovereigntist party led by Yves-François Blanchet has already drawn up a list of demands.

In an interview ahead of the opening of Monday’s party caucus retreat in the Outaouais region, Bloc House Leader Alain Therrien said his party is happy to regain its balance of power.

“Our objectives remain the same, but the means to get there will be much easier,” Therrien said. “We will negotiate and seek gains for Quebec … our balance of power has improved, that’s for sure.”

He called the situation a “window of opportunity” now that the Liberals are truly a minority government after New Democratic Party Leader Jagmeet Singh tore up the confidence and supply deal between the two parties last week, leaving the Bloc with an opening.

While Pierre Poilievre’s Conservatives have promised multiple confidence votes in the hope of triggering a general election, the Bloc’s strategy is not to rush to the polls and instead use their new-found standing to make what they consider to be gains for Quebec.

A Bloc strategist who was granted anonymity by The Canadian Press because he was not authorized to speak publicly stated bluntly that the NDP had officially handed the balance of power back to the Bloc. The Bloc is taking for granted that when a federal election is held in about a year or less, it will be a majority Conservative government led by Poilievre, whose party has surged in the polls for over a year and has been ahead in the rest of Canada for over a year.

Quebec won’t factor so much in that win, the source added, where the Bloc will be hoping to grab seats from the Liberals and where the Conservatives hope to gain from the Bloc.

“It’s going to happen with or without Quebec,” the source said. “They (the Conservatives) are 20 points ahead everywhere in Canada, with the exception of Quebec, and that won’t change … their (Conservative) vote is firm.”

It is not surprising that the Bloc sees excellent news in the tearing up of the agreement that allowed the Liberals to govern without listening to their demands, said University of Ottawa political scientist Geneviève Tellier.

“The Bloc only has influence if the government, no matter which one, is a minority,” she explained. “In the case of a majority government, the Bloc’s relevance becomes more difficult to justify because, like the other parties, it can oppose, it can hold the government to account, but it cannot influence the government’s policies.”

On the Bloc’s priority list is gaining royal recommendation for Bill C-319, which aims to bring pensions for seniors aged 65 to 74 to the same level as that paid to those aged 75 and over.

A bill with budgetary implications that comes from a member of Parliament, as is the case here, must necessarily obtain royal recommendation before third reading, failing which the rules provide that the Speaker of the House will end the proceedings and rule it inadmissible.

The Bloc also wants Quebec to obtain more powers in immigration matters, particularly in the area of ​​temporary foreign workers, and recoup money it says is owed to the province.

The demands concerning seniors’ pensions and immigration powers are “easy, feasible and clear,” Therrien said.

“It’s clear that it will be on the table. I can tell you: I’m the one who will negotiate,” he added.

The Bloc also wants to see cuts to money for oil companies, more health-care funds for provinces as demanded by premiers and stemming or eliminating Ottawa’s encroachment of provincial jurisdictions.

This report by The Canadian Press was first published Sept. 8, 2024.

The Canadian Press. All rights reserved.

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N.B. Liberals officially launch election bid before official start of fall campaign

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FREDERICTON – New Brunswick‘s Liberals got a jump on the province’s coming fall election today with the official launch of their party’s campaign.

The kickoff, which took place in the Fredericton riding where Liberal Leader Susan Holt plans to run this time, came before the official start of the general election set for Oct. 21.

The Liberal platform contains promises to open at least 30 community care clinics over the next four years at a cost of $115.2 million, and roll out a $27.4 million-a-year program to offer free or low-cost food at all schools starting next September.

The governing Progressive Conservatives, led by BlaineHiggs, have so far pledged to lower the Harmonized Sales Tax from 15 per cent to 13 per cent if re-elected.

Political observers say the issues most affecting people in New Brunswick are affordability, health care, housing and education.

Recent polls suggest Higgs, whose leadership style has drawn critiques from within his caucus and whose policies on pronoun use in schools have stirred considerable controversy within the province, may face an uphill battle with voters this fall.

This report by The Canadian Press was first published Sept. 8, 2024.

The Canadian Press. All rights reserved.

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Trudeau to face fretful caucus ahead of return to the House

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OTTAWA – Prime Minister Justin Trudeau will face a fretful and strained caucus in British Columbia Monday, with MPs looking for him to finally reveal his plan to address the political purgatory the party has endured for months.

Several Liberal MPs privately and publicly demanded they meet as a team after the devastating byelection loss of a longtime political stronghold in Toronto last June, but the prime minister refused to convene his caucus before the fall.

Their political fortunes did not improve over the summer, and this week the Liberals took two more significant blows: the abrupt departure of the NDP from the political pact that prevented an early election, and the resignation of the Liberals’ national campaign director.

Now, with two more byelections looming on Sept. 16 and a general election sometime in the next year, several caucus members who are still not comfortable speaking publicly told The Canadian Press they’re anxiously awaiting a game plan from the prime minister and his advisers that will help them save their seats.

The Liberals have floundered in the polls for more than a year now as Pierre Poilievre’s Conservatives have capitalized on countrywide concerns about inflation, the cost of living and lack of available housing.

Though Trudeau hasn’t yet addressed all of his MPs en masse, he has spoken with them in groups throughout June and July and stopped in on several regional caucus meetings ahead of the Nanaimo retreat.

“We’re focused on delivering for Canadians,” Trudeau said at a Quebec Liberal caucus meeting Thursday.

He listed several programs in the works, including a national school food program and $10-a-day childcare, as well as national coverage for insulin and contraceptives, which the Liberals developed in partnership with the NDP.

“These are things that matter for Canadians,” he said, before he accused the NDP of focusing on politics while the Liberals are “focused on Canadians.”

Wayne Long, a Liberal MP representing a New Brunswick riding, says the problem is that Canadians appear to have tuned the prime minister out.

Long was the only Liberal member to publicly call for Trudeau’s resignation in the aftermath of the Toronto-St. Paul’s byelection loss, though several other MPs expressed the same sentiment privately at the time.

Long shared his views with the prime minister again at the Atlantic caucus retreat ahead of Monday’s meeting.

“I’m really worried the old ‘stay calm and carry on,’ which effectively is where we are, is not going to put us on a road to victory in the next election,” said Long, who does not plan to run again.

“If we’re going to mount a campaign that can beat Pierre Poilievre, in my opinion that campaign cannot be led by Justin Trudeau.”

Long fears a Trudeau campaign could lead to a Poilievre government that dismantles the prime minister’s nine-year legacy, piece by piece.

Long is one of several Liberal MPs who confirmed to The Canadian Press they do not plan to go the meeting in Nanaimo. But Mark Carney, the Bank of Canada governor whose name is routinely dropped around Ottawa as a possible successor to Trudeau as Liberal leader, will be in attendance.

He’s expected to address MPs about the economy and a plan for growth.

NDP Leader Jagmeet Singh’s decision to back out of the supply and confidence deal certainly complicates any calls for the prime minister to step aside and allow a new leader to face off against Pierre Poilievre in the next election, since that election could now come at any time.

“It makes a much more precarious situation, because Singh probably holds the keys to when that election could be,” said Andrew Perez, a longtime Liberal with Perez Strategies, who also called for Trudeau’s resignation earlier this summer.

“Maybe it presents an argument for the pro-Trudeau side to say that we need to stick with Trudeau, because there’s no time.”

But while some caucus members describe feeling frustrated by the political tribulation, Long insists that those who are running again aren’t yet feeling defeated.

Speaking about those in the Atlantic caucus, he said “to a person, they’re ready to fight. They’re they’re ready to go.”

This report by The Canadian Press was first published Sept. 8, 2024.

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