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Quebec’s use of notwithstanding clause in language law opens constitutional debate

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MONTREAL — When federal Justice Minister David Lametti reacted last week to the adoption of Quebec’s language law reform, he took aim at the provincial government’s proactive use of the notwithstanding clause to shield the law from constitutional challenges.

Lametti and other critics of Bill 96 say the government’s use of that clause — Section 33 of the Canadian Charter of Rights and Freedoms — shuts down debate and prevents a proper judicial review of the legislation. The proactive use of Section 33, which permits a government to override certain provisions of the Constitution, is an “unintended negative consequence in our political system,” he said.

The Quebec government, meanwhile, says its use of the clause is legitimate and necessary to protect laws that are supported by the majority of Quebecers. The government calls Section 33 “the parliamentary sovereignty provision.”

Bill 96, among other things, limits the use of English — one of Canada’s two official languages — in the public service and permits inspectors to conduct searches and seizures in businesses without warrants. The proactive use of Section 33 means the courts cannot declare Bill 96 unconstitutional because of its potential violations of certain fundamental rights included in the Charter.

The two other recent cases where the notwithstanding clause was invoked outside of Quebec — by the Ontario government in 2021 and by Saskatchewan in 2017 — it was used to override court decisions. Quebec is the only province to invoke the clause before judicial review.

The notwithstanding clause, Lametti told reporters, “was meant to be the last word in what is, in effect, a dialogue between the courts and legislatures. It wasn’t meant to be the first word.”

Emmett Macfarlane, a political science professor at the University of Waterloo who studies the Supreme Court’s role in shaping public policy, said there’s nothing in the Charter that outlines when Section 33 can be used. He said, however, that he doesn’t think its pre-emptive use was envisioned when the Charter was drafted in 1982.

“Quebec is right to say, legally, we can use it pre-emptively and they’re at least partially right to say the notwithstanding clause is a parliamentary sovereignty provision, but it’s also an unprincipled use of the notwithstanding clause,” Macfarlane said in an interview Friday.

“It’s a political manoeuvre to avoid having that negative judicial ruling that would be inevitable if they hadn’t used the notwithstanding clause.”

Constitutional lawyer Julius Grey argued before the Superior Court against Quebec’s secularism law — known as Bill 21 — which bans certain government employees from wearing religious symbols at work. That case is before the Court of Appeal. He said in an recent interview that the question as to how Section 33 can be used will be decided when the case reaches the Supreme Court.

Grey said he hopes the high court will rule that provinces can’t use the clause as they please.

“Parliamentary sovereignty is precisely what the Charter wants to get away from,” Grey said. “We all understand that parliamentary sovereignty has certain dangers — the rule of the majority can turn into the tyranny of the majority.”

Benoît Pelletier, a cabinet minister in the Quebec Liberal government of Jean Charest, said he supports the Quebec government’s use of the notwithstanding clause, a tool he said is “at the heart” of the separation of powers in Canada’s legal system.

Section 33, he said, was included in the Charter to preserve parliamentary sovereignty but also to maintain the balance of power between the judiciary and the government.

For Pelletier, the proactive use of the provision isn’t a problem because the courts can still review the legislation — a Superior Court ruling on Bill 21 that upheld most of the law was more than 200 pages, he said. In that ruling, Superior Court Justice Marc-André Blanchard found that Bill 21 violates fundamental freedoms such as the freedom of religion, but he couldn’t strike those elements of the bill down because the law was shielded by Section 33.

Pelletier said he thinks the Quebec government is making “moderate” use of Section 33. “As a province, or as a nation, or as a political unit, it’s normal that Quebec makes collective choices that are different from those of the other provinces.”

Patrick Taillon, a constitutional law professor at Université Laval, said Quebec has been something of a “champion” of using Section 33. The province has used it more than others, he said in an interview Friday, “because it allows our elected officials to exercise a certain form of autonomy.”

The Supreme Court, he added, has already upheld the preventive use of the notwithstanding clause, in a 1988 decision involving Quebec’s French-language signage legislation. That decision made clear that the court’s role was not to decide whether it was right or wrong to use Section 33 but only whether it conformed to the Constitution.

Macfarlane said it’s not just Quebec’s use of Section 33 that concerns him. The Ontario government’s 2021 use of the notwithstanding clause to protect a campaign finance law was also problematic, he said.

“I don’t think other provinces are immune to these populist impulses,” he said. “But there obviously is something distinct about Quebec’s record with the notwithstanding clause relative to all the other provinces.

This report by The Canadian Press was first published May 29, 2022.

 

Jacob Serebrin, The Canadian Press

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Politics Report: The People Asked for Time and Now They Get Time Because What They Really Wanted Was Time – Voice of San Diego

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Early Monday, our Lisa Halverstadt learned that the City Council was not going to vote on a proposed settlement over 101 Ash St. after all. Serves us right for expecting a climax in any long-running San Diego political affair. 

Maybe the settlement didn’t have the five votes it needed, maybe some new information materialized, or maybe the mayor’s explanation that they heard the public’s call that it needed more time to process the terms of the agreement was all there was too it. That last explanation would perhaps be the most exciting, since it would mark the first time in city history that a proceduralist consideration wasn’t just poorly disguised cover for some substantive difference of opinion. 

Nonetheless, former Mayor Kevin Faulconer jumped on KUSI Thursday to say he was happy that Mayor Todd Gloria had decided to delay the vote for a month until the public had ample time to fully absorb the particulars of a settlement that would have ended some city lawsuits, continue others, and lead to the acquisition of two massive pieces of downtown real estate for a City Hall redevelopment that hasn’t been planned and won’t be within the next month. The public would also then have enough time to grok the city attorney’s dissenting opinion on the settlement, or both legal and policy reasons. 

“I think you have to make sure that any proposed settlement is going to be a benefit to the city, a benefit to taxpayers and it’s not something that should be rushed,” he said. “I think we’ll hear a lot more about that in the coming months.” 

Clearly, now that we’ve made the difficult, brave decision not to rush the matter, ignoring the screaming hordes from the pro-rush caucus, we don’t need to be in any hurry to articulate whether the deal actually is a benefit to the city and taxpayers or not. The important thing is that now we have time.  

Brief CAP Opposition from the Cap’s Top Champion 

Back in Gloria’s first stint in the mayor’s office – in an interim position that didn’t really exist – Nicole Capretz led the charge within his administration for what became his landmark achievement during that time, even though it wasn’t passed until Faulconer was in office: the city’s Climate Action Plan. 

The city adopted a plan that said it would half its carbon footprint by 2035 by, among other things, transitioning to 100 percent renewable energy and getting half of people who live near transit to bike, walk or take transit to work by that same year. San Diego basked in national praise from the New York Times and elsewhere.  

This week, though, Capretz – who now runs a nonprofit group that pushes San Diego and other cities to do more within their climate plans – came out as an opponent of the updated version of the same Climate Action Plan that Gloria is now trying to pass. Even though the plan is ramping up its goals – the city would now by 2035 reach “net zero,” when the level of its greenhouse emissions are equal to the level absorbed by the environment (or new technology that removes carbon from the atmosphere) – Capretz and her group urged a “no” vote from a Council committee, because the city lacked a timeline and cost estimates for its commitments. They eventually got on board when city staff agreed to provide that by February. 

Still, it was interesting to hear Capretz, maybe the city’s top salesperson for the climate plan, acknowledge that proponents had made mistakes with the first plan by not setting clear cost and time requirements for each of the policies included in it. 

“We did not insist on an implementation plan for the first Climate Action Plan,” she told our MacKenzie Elmer. “We’re not going to make that mistake again.”  

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Murphy's Logic: Politics trumps public interest | CTV News – CTV News Atlantic

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The initial reluctance of governments, federal and provincial, to appoint a public inquiry into the N.S. mass shooting, was difficult to understand. It took the heartfelt pleas of the victims’ families and the fast rising tide of public opinion to make the politicians act.

And now we likely know why they were so reluctant.

Imperfect though it may be, the inquiry eventually appointed has now exposed the obscene political considerations that were already at play in the days that followed the horror of April 2020.

The evidence reveals that political leaders, who should have been overwhelmed only with grief and concern for the trauma and misery wrought by a madman, instead seemed to seize an overwhelming opportunity to advance their own partisan interests in toughening gun control.

There is reason to believe the PM or his people, certainly his Ministers, were attempting to dictate, manipulate or at least influence parts of the RCMP the narrative. That’s unacceptable, a brazen display of politics put ahead of public interest, moreover, it’s heartless.

The Commissioner of the RCMP should not have been making promises to her political masters about the release of information about the sort of weapons used by the shooter but more pointedly, the politicians shouldn’t have been asking for such promises about that or anything else.

The Mass Causality Commission has already exposed many shortcomings on the part of the RCMP.

The force’s politically charged relationship with the government is yet another fault, yet another reason to demand changes in the way the RCMP operates.

The arrogance laid bare by the Trudeau government’s apparent willingness to interfere, to capitalize on the timing of a tragedy for crass political advantage, also suggests it may also be time to change the government.

   

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About 675,000 signed up to vote in federal Conservative leadership race: party

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OTTAWA — About 675,000 members have signed up to vote for a new leader of the Conservative Party of Canada — a staggering number that the Tories believe sets an all-time record for any federal political party.

The party said it sent a preliminary voter list to candidates on Thursday. The final number is subject to change, as leadership hopefuls will now be able to challenge the validity of any of those sign-ups or push for names to be added to the list.

Candidates have until the end of Monday to issue these challenges, which the party stressed must be “substantiated.” They will be reviewed by the party’s chief returning officer, whose decisions can be appealed to a dispute resolution committee before the voter list is finalized later in July.

However, the party said some 6,500 non-compliant sales have already been cut according to the Conservatives’ internal rules and those of the Canada Elections Act. 

These include memberships that were purchased for different addresses but using the same credit card or those bought with prepaid cards or corporate accounts.

Ian Brodie, chair of the leadership election organizing committee, said Thursday there are now more members of the Conservative party than people in Hamilton, Ont.

“Canadians are responding to the leadership race in unprecedented numbers. We have crushed all records for prior political participation in Canada,” he said.

To compare, in 2020, when former leader Erin O’Toole was elected in the Conservatives’ last leadership race, the party boasted an eligible voting base of 270,000.

At the beginning of this year, the party said it had 161,000 active and current members nationally, although about 48,000 of those were scheduled to expire by the membership deadline in June.

It said the vast majority of members signed up online, although some registered by mail or phone.

A provincial breakdown of memberships was not provided on Thursday.

The party is also not releasing how many members each individual candidate signed up, despite the urging of Ottawa-area MP Pierre Poilievre, who has claimed he sold nearly 312,000 memberships through his website.

Five other candidates are vying for the top job: Ontario Conservative MPs Scott Aitchison and Leslyn Lewis; former Quebec premier Jean Charest; Patrick Brown, the mayor of Brampton, Ont.; and Roman Baber, a former Independent member of the Ontario legislature.

The party also said the list had been cleaned up of duplicates, which it described as a normal part of any campaign. Anyone who signed up twice has simply been given a second year of membership.

Both Brown and Lewis had raised concerns about possible duplicates arising from an email sent by Poilievre’s campaign ahead of last month’s deadline to sell $15 memberships.

Brown and Lewis alleged members purchased new memberships after receiving what appeared to be an “official-looking warning” from Poilievre’s team that their status was incomplete.

A spokesman for Poilievre’s team has said the email in question went to people who, according to the campaign’s records, were not members.

The winner is to be announced in Ottawa on Sept. 10.

Brodie downplayed the revenue implications of selling so many memberships, saying that some of the money must be shared with riding associations.

Instead, he said the key takeaway is how candidates have mobilized supporters.

“I think what this shows is a level of engagement and enthusiasm for the race that will continue to pay dividends for us well past the end of the race, and I don’t see that diminishing on Sept. 11.”

This report by The Canadian Press was first published June 30, 2022.

 

The Canadian Press

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