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How did Canada get stuck with Doug Ford? Blame activist judges.

How did Canada get stuck with Doug Ford? Blame activist judges.


Ontario Premier Doug Ford speaks at the Ontario Legislature in Toronto last week. (Chris Young/The Canadian Press via AP) September 19 at 3:43 PM As Americans s…

How did Canada get stuck with Doug Ford? Blame activist judges.


Ontario Premier Doug Ford speaks at the Ontario Legislature in Toronto last week. (Chris Young/The Canadian Press via AP) September 19 at 3:43 PM

As Americans sit captivated by the uncertain fate of Supreme Court nominee Brett M. Kavanaugh, Canadians are forced to grapple with an uncomfortable fact: If any recent nominee to their own Supreme Court had skeletons in his closet, they likely went unknown.

The U.S. system of judicial appointment subjects federal nominees to an adversarial screening process in which legislators are given the opportunity to investigate, question or even reject candidates. By contrast, the Canadian system â€" which in 2010 received a failing grade from the good governance w atchdog Global Integrity â€" is crude and unilateral. The prime minister appoints judges he wants, subject to no cross-examination or veto.

Frustration over judicial unaccountability reached new heights last week after Ontario Premier Doug Ford’s decision to evoke the Canadian constitution’s Section 33, also known as “the notwithstanding clause,” to shrink the size of Toronto’s city council. The rarely used power allowed him to overrule a judge who had declared such legislation unconstitutional.

“We’re taking a stand,” Ford said. “If you want to make new laws in Ontario or in Canada, you first must seek a mandate from the people and you have to be elected.” On Wednesday, Ford received a victory when the initial court ruling was stayed, pending appeal. Yet in declaring his government “prepared to use Section 33 again in the future,” a precedent had nevertheless been set.

When Canada added a Charter of Rights and Freedoms to its constitution in 1982, based on the U.S. Bill of Rights, some grumbled about “Americanizatio n.” Out went traditional English notions of “parliamentary supremacy,” in came the U.S. concept of judicial review.

But the Americanization stopped halfway. In the United States, the judicial branch is empowered to declare the actions of other branches unconstitutional, but the executive and legislature also exert democratic oversight of the judiciary by controlling who gets on the bench. No such checks came to Canada.

Judge Kavanaugh is a man with a political philosophy, and President Trump is not oblivious to it. Scorn for such “politicization” of the judiciary has long been a favored tactic of Canadian defenders of the status quo. Yet in any system of judicial review, judges cannot help but act politically, given that much of their job is interpreting ambiguous constitutional text.

Apologists cite the fact that Canadian judges easily reach consensus as proof that Canada’s judiciary has no guiding ideology beyond neutral interpretation of law. Canada’s Supreme Court in particular rules unanimously on virtually everything. Such rulings have hardly been neutral in outcome, however.

High court decisions reliably adhere to the platform of mainstream Canadian liberalism, if not the Liberal Party proper. This includes a permissive attitude on matters of drugs and sex, a skepticism of unrestrained free speech and religious liberty, sympathy to expansive assertions of indigenous rights, a bias toward compassion over punishment, and hostility to reform of governing institutions.

Wildly different forms of judicial logic are used to arrive at these outcomes. Sometimes, as in a recent ruling upholding interprovincial barriers to liquor trade, broad deference is given to the legislature. On other occasions, the court shows little hesitation dismissing the objectives of elected politicians, as in a 2013 ruling overturning Ottawa’s prostitution laws. Sometimes the constitution’s words must be interpreted with changing times, as when the document’s promise of a “right to life” was read to allow assisted suicide. Other times strict “originalism” is in vogue, as when the Supreme Court said it would be unconstitutional to hold Senate elections as that would defy the framers’ elitist wishes.

The predictability of such rulings is best blamed on ideological uniformity within Canada’s legal establishment. Judges appointed by Conservative prime ministers, after all, seem to rule in a fashion indistinguishable from those chosen by Liberals. It is unclear to what extent prime ministers are even in full control of the appointment process these days, given the degree their judicial choices are puppeteered by “Judicial Advisory Committees” dominated by elite representatives of Canada’s lawyer community.

Conservatives deserve ample blame for this state of affairs. When a 2015 story in the Globe and Mail alleged (on rather thin evidence) that Prime Minister Stephen Harper had “remade” the federal judiciary in his ideological image, many conservatives were aghast that any journalist would make such a nasty allegation. Republicans would consider it a compliment. Since there is no Canadian Federalist Society seeking to bring a conservative perspective to Canadian legal questions, conservatives often internalize the narrative that an identifiably conservative legal philosophy shouldn’t exist.

Amid such malaise on the right, Premier Ford’s decision to evoke Section 33 of the constitution was inevitable. Legislative vetoes of judicial rulings remain the last hope of conservatives seeking reprieve from progressive judicial activism, of which the Toronto council ruling was a particularly appalling case study.

Aware of this, Canada’s legal hive mind has spent decades attempting to paint the “notwithstanding clause” as taboo or de facto lapsed. An open letter signed by 80 Canadian law professors predictably declared Ford’s move “deeply troubling.” As the Macdonald-Laurier Institute’s Sean Speer noted, this “says more about the state of legal education in the country than it does about the origins and purpose of S.33.”

Premier Ford is being portrayed as a reckless bully, a man so stubborn and proud he sees no problem resorting to unprecedented constitutional gimmicks to get his way on even the most middling matters. There may be truth to this. It would be nic e, however, if Canada’s legal establishment could display a shred of introspection at their own role in getting us here.

Source: Google News Canada | Netizen 24 Canada

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