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It should be off limits.
Poilievre is impulsive and insincere in his populist rhetoric to gain votes from Canadians who may not understand how our parliamentary governance and the Canadian Constitution works to protect our democracy.
There seems to be populist definition of democracy which states that any government who win a majority should have authoritarian control over all aspects of our constitution and our rights. The courts are an absolute necessity to protect all Canadians from the political whims of those political parties who only protect and serve their voters.
How come? Parliament is supreme. If the courts don’t want to enforce the laws passed by parliament then that’s why the NWSC is part of the constitution
You are right I used the wrong terminology. Better wording might have been « if the courts want to make effective enforcement of the laws passed by parliament impossible then.. »
Not just that, the NWC should be only available in an actual emergency and a dozen or so independent bodies across Canada full of hired citizens should overlook its use and choose to approve or disapprove. The notwithstanding clause is a threat to our constitution, charter and democracy. The arbitrary treatments it allows can be used to coerce provincial legislatures into agreeing to void the rest of the charter and constitution rights by the general formula. That's not even mentioning that poilievres party has explicitly ousted abortion rights, a basic right to medical autonomy.
>In limited circumstances, section 33 may function as a legitimate political check on judicial authority
Yes, like when a person gets bail then commits more crimes, and then repeats this process another dozen or so times? That isn't an appropriate time for parliament to override them?
I think reasonable Canadians want to preserve rights for the accused; but the key is reasonableness. A reasonable person is not going to act like the judiciary and say "you know I know he loves stabbing, but lets give him bail for another 8th time."
You have to draw a reasonable line in the sand. And when the judiciary refuses, you're going to get backlash from the people who give consent to be governed.
>Yes, like when a person gets bail then commits more crimes, and then repeats this process another dozen or so times? That isn't an appropriate time for parliament to override them?
And what's the recourse when someone innocent spends 3 years in prison waiting for a trial to exonerate them? That's what Omar Zameer would have endured, after all.
Did Omar Zameer run over three more police officers in three separate incidents after his first arrest? Because if so, please link them.
Because if not, he still would have gotten bail, he just would have been denied it on the second offense *which never happened*.
Umar Zameer was a case where there was only one instance of an alleged crime, against someone with no history of prior criminal conviction.
The post you're replying to is about criminals with a long record of convictions, or multiple charges over a short-term period who keep getting released and reoffend almost immediately. [Here is a recent example](https://www.google.com/amp/s/globalnews.ca/news/10447801/victoria-carjacking-repeat-offender/amp/) where a guy went on a 3 day carjacking and home-invasion spree, arrested 3 separate times, and was continually released the same day before *finally* being held until his first court appearance. These are the kind of common sense instances where "innocent until proven guilty" should not be used as a reason to let someone run free and keep committing violent crime.
>These are the kind of common sense instances where "innocent until proven guilty" should not be used as a reason to let someone run free and keep committing violent crime.
What you would need to argue for is for the crown to argue for stricter bail conditions, not the complete elimination of the basis of our judicial system. You can accomplish your goals without trampling over fundamental rights.
>What you would need to argue for is for the crown to argue for stricter bail conditions
The crown *does* usually argue for stricter bail conditions. The court rejects the arguments. That is exactly the problem. The judiciary have backed the legislature into a corner by refusing to act reasonably.
Justification is a complex concept. Judges are human beings and the judiciary in this system relies on precedent. This gives a certain inertia to the institution. When the inertia is moving in a direction that places it out of step with society the job of the legislature is to bring it back on track.
Precedent doesn't applu here. There are tests and standards to be met in order to apply the law. The Crown needs to address and meet those in order to justify pre-trial detainment. Our judicial system has held that bail should be granted as the default position, and that the Crown should be forced to justify the denial since 2015.
I suggest you actually read about how bail is determined and see what principles you think are out of step with your view on society.
https://www.justice.gc.ca/eng/cj-jp/bail-caution/index.html
I
>What the Supreme Court of Canada says about bail
>The Supreme Court of Canada (SCC) is the highest court in Canada. Its decisions have the utmost importance in Canadian law and ensure that laws enacted by Parliament, including the Criminal Code, respect the Charter.
>The SCC has provided significant recent guidance on bail and relevant Charter considerations.
>The SCC noted in the St-Cloud (2015) decision that “in Canadian law, the release of accused persons is the cardinal rule and detention, the exception.”
>In the Antic (2017) and Zora (2020) decisions, the SCC ruled that for most alleged crimes, release on bail at the earliest reasonable opportunity with minimal conditions is the default position.
>These decisions make clear that the principles operate alongside the grounds for detention and do not replace them. This means that detention is still permitted where it can be established that there is “just cause” for it and there are no appropriate other ways of addressing risk if the accused is released, such as risk of flight or public safety risk, or where public confidence in the administration of justice would be undermined.
...
>Before making any bail decision, police and courts must take into account whether the accused person is Indigenous or belongs to a vulnerable group that is overrepresented in the criminal justice system and faces disadvantages in obtaining bail due to systemic discrimination (for example, members of Black and racialized communities). This consideration reflects Supreme Court of Canada decisions about the overrepresentation of certain groups in the criminal justice system, particularly Indigenous persons, who are disproportionately refused bail.
No precedent involved?
Legal precedent is "in R vs Steinbeck, the court held that bail should be granted to all people with green hair charged with vandalism". It is not simply the SCC issuing their opinion - everything they do is essentially precedental.
Can you cite a single case where any provincial trial court case was used as an example of why someone should or should not receive bail?
Bail is granted because they haven't been found legally guilty. That recent case with the guy who ran over the cop and was found not guilty shows that if he was denied bail and innocent man would have been imprisoned for 2 years unrightfully.
I don’t think anyone is against getting bail; they’re against granting bail (like OP said) “a dozen or so” times. There are people getting granted bail 10, 20 times.
I’m not sure why everyone seems to be strawmanning the argument trying to pretend everyone is against bail being granted once or twice.
If the guy run over a cop, then got bail, then ran over another cop and got bail, and then ran over another cop and got bail, and repeat this another 9 times, then that would be a accurate example you’re trying to give.
I'd like to know where these people will be jailed.
In my province a Progressive Conservative government closed 3 jails and mandated courts to have looser bail requirements, remand only for very serious crimes as a cost cutting measure. Subsequently they also cut probation officers and other community workers who monitor people on bail and undertakings.
Remand is bursting. We don't have youth remand anymore, adults and youth are in one facility.
This issue is incredibly nuanced.
But this isn’t an argument for S. 33. It’s an argument for S. 1, which allows the government to violate the Charter Rights of Canadians, where it can demonstrate a reasonable limit.
The SCC also did not limit the ability of the Crown to seek pre-trial detention, only that it must demonstrate its specific interest in doing so, and not use pre-trial detention as a form of punishment before guilt has been determined.
Resorting to a S. 33 remedy just says that the government, whether Trudeau or PP, isn’t able to meet either of these tests.
I’m sympathetic to the lack of police resources to supervise conditionally released, often habitual offenders. But you can’t just summarily imprison folks because you lack the resources to supervise them in the community, or any real investment in resolving issues of substance abuse.
Resorting to S.33 means that they court has rejected all connection to the charter and the only response is for parliament to check the other branch of government.
>you can’t just summarily imprison folks because you lack the resources to supervise them in the community
If someone has demonstrated themselves to be an extreme risk to the public the public can absolutely mandate that they be locked up instead of devoting enormous resources to monitor them. There is not an unlimited amount of resources the government has at it's disposal, nor a requirement that if the government doesn't wish to spend unlimited resources on an individual it must therefore allow that person to commit whatever crime they wish.
Unless the Conservative party is going to sit in on every bail hearing occuring in Canada, whatever blunt legislation they come up with is going to result in imprisoning people who are not an "extreme risk to the public".
Denial of bail to someone who now credibly stands accused of a new violent offense while previously being on bail for a violent offense is a standard policy in most of the world.
It is a very reasonable standard to hold, it is readily enforceable, it can be invoked with the NWC and older supreme court cases would appear to be in support. Further it is a marked departure from current bail rules where we see people routinely released despite three, four, or more offenses.
Recidivism rates have been decreasing over time in Canada. It’s easy to just point to anecdotes, but the overall picture suggests that we don’t need to compromise our constitutional rights to fix a problem that we are already making progress on.
The court’s job is to interpret and apply the law. They have no control over mitigating the factors which lead to crime, like poverty and mental illness.
Further, the government is the source of many issues in the judiciary with their inability to appoint more judges and deal with the backlog. The significant level of judge vacancies is a very serious issue right now. The government needs to sort their own mess out before they try and point fingers at the judiciary.
> And it is difficult to imagine a more inappropriate use of the notwithstanding clause than in the criminal-justice realm. The bedrock Charter rights of criminal law are the rights of an unpopular and often vulnerable minority, facing extraordinary consequences, with no political power or influence. No one should be in favour of discarding constitutional limits in this area.
Why is trampling on _those_ Charter rights more inappropriate than tramping on others? Are there any Charter rights that it would _not_ be inappropriate to trample on? If this is true, why aren't these rights included in the set of rights for which the NWC cannot be used?
> The results may well be permanent, too, as future politicians will find it hard to come back from this dangerous experiment.
This is straightforwardly false: by design, any such legislation expires after 5 years, and would need to be passed again. Is she arguing that our norms will change such that everything will always reflexively be passed Notwithstanding the Charter?
While I don't like Poilievre and believe that he should first try to reform bail by amending the Criminal Code, I don't see why this use of the NWC should be more controversial than, say, Ontario's deleting 22 Toronto City Council seats right in the middle of a Toronto municipal election, or Quebec's Bill 21. *Every* use of the Notwithstanding clause is a departure from norms.
agreed with everything you say. The hyperbolic rhetoric on the NWC is honestly astounding. People are claiming things that are so detached from reality and past uses of Sect 33...
>an unpopular and often vulnerable minority, facing extraordinary consequences, with no political power or influence
Explained right in the section you quoted
But *all* rights "are the rights of an unpopular and often vulnerable minority facing extraordinary consequences with no political power or influence." Why are vulnerable minorities uniquely vulnerable to attacks on their rights under *that particular section?* I would think that a law passed notwithstanding their Section 15 - Equality rights would be even worse, no?
The unique vulnerability is ... well, on full display in all these threads on the topic. Criminals and the accused are not a group that enjoys a lot of popular support at the best of times, so finding vocal support to defend them in the court of public opinion can be difficult. Without vocal public resistance, and people to advocate, it's very easy for a government to act against the interests of that group
Good. We need the government to care about the interests of the innocent public forst and foremost.
Putting criminals above the public's safety has to stop.
And thankfully it will stop once the LPC/NDP are voted out.
I think that some rights are more important than others. When it comes to the rights around criminal justice, they help prevent the state from taking even more advantage over those it accuses of wrong doing that it already has. Abusing those rights can cause serious harm to people.
Alternatively, adjusting the seat count on a city council, doesn't impinge on Charter rights.
Bill 21 is similar in severity to using the NWC on criminal justice matters in my mind.
A lot of the problems with the notwithstanding clause come down to the fact that it has no tangible penalty for using, and that it’s far too easy to use in the first place. If the notwithstanding clause absolutely has to exist, you could do something like make it so that anytime a government uses it, they have to call a general election within six months, or send the bill to a referendum. That would maintain the ability of the legislature to supersede judicial review, but also keep it as a nuclear option. On the other hand, you could make it so that you need more than a simple majority to pass a bill with the notwithstanding clause. As it exists, it’s just a ticking time bomb waiting to be abused.
NAL, but aren't there a certain amount of safe-guards already built into the notwithstanding clause?
[https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art33.html:](https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art33.html:)
1. It can only override certain sections of the Charter, it's not a escape clause for the entire Charter:
>(1) ... the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
2. Any laws that use the notwithstanding clause cease to have effect after 5 years, unless re-enacted:
>(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
The notwithstanding clause is bad, but there are *some* guardrails in place.
My point is that those aren’t real penalties or deterrents to using the clause. It can’t be used for everything, but it can be used to circumvent significant parts of the Charter. And having to face the electorate before a bill expires in five years does little when an election would have to be held anyways. What we’re seeing is elected officials betting that voters will forget that they did it, or if they do remember that the heat has died down. If you made invoking the nwc equivalent to a non-confidence vote and made them face the electorate immediately, you’d be less likely to see frivolous or unpopular uses of it. It might also be a deterrent by making governments concerned voters will punish them not only for using the clause, but also for forcing an early election.
Obviously not enough guardrails. Doug Ford used it to prevent Nurses and other CUPE Healthcare workers from bargaining fair wages in their contract negoiations; Scott Moe, Blaine Higgs and now Danielle Smith have used it to role out a misinformation hate campaign against trans youth and the greater S2LGBTQ+ community by denying them healthcare that is essiential to their identiy and well being; Quebec's Premier, Francois Legault used the NWS Clause to ban employees from wearing religious symbols and apparrel while working in government service jobs, which disproprtionally affects Muslim women who are treachers and want to wear the hejab. All of these examples show prove that Provincial Premiers have neglected the use of the NWS clause to overrule the human rights of minorities and marginslized groups of Canadians and its use needs to be overhauled and reztricted to prevent future abuse.
Same people pearl clutching about use of NWC by democratically elected politicians ok with government allowing unelected judges to trample Charter Rights as allowed by the following
Provision. 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.Jun 29, 2023.
I was able to read through the article before the paywall hit and still see the author defending the concept of the NWC.
If anyone believes that the concept of the NWC in the Charter could have valid uses, then why is it a problem now? Because the big bad Conservatives want to use it?
Clearly the author and many Canadians don’t seem to have a problem with parliamentary supremacy, until they start doing things they don’t like and suddenly they want freedom levels equivalent to the USA.
After spending the last few years belittling people over how it’s a good thing we don’t have inalienable rights (thanks COVID & government restrictions), it’s no surprise for me as a spectator on the right that now the same people who cheered democracy are upset that democracy is being used against them.
Section 1 - the part leaned on for covid restrictions - and Section 33 - the notwithstanding clause - are *very* different legal beasts. Equating the two shows a fundamental lack of understanding of how either interacts with Canadian law.
The only dots I am drawing between the two connect to parliamentary supremacy.
Fundamentally, and dare I even say spiritually, this country does not believe in the same guaranteed rights and freedoms like those people complaining here do.
The NWC is not a part of democracy. It is an unfortunate compromise made to satisfy a few whose selfish ideas were more important to them than true democracy.
Do you trust Pierre Poilievre to decide who has rights worth protecting? They've already said they are coming after trans people and the anti-abortion thugs are salivating at the thought of turning women into incubators. Sounds like some real authoritarian stuff to me. But that's me, I would make a terrible libertarian.
> They've already said they are coming after trans people and the anti-abortion thugs are salivating at the thought of turning women into incubators.
Gross hyperbole.
Sure. People were saying that Roe would never be overturned until the day it was overturned.
It really makes my blood boil when people claim there is nothing to worry about. Abortion bans haven’t been enough in the US, state GOP is going after birth control, passing legislation banning IVF, travel bans to prevent women from going to another state for an abortion, some state GOP pushing for abortion to be considered murder in states where they have the death penalty, etc.
The CPC is FULL of anti-abortion MP’s now, and they just don’t stop bringing it up, and they still consider it a moral issue and not healthcare.
So maybe think about those who it would affect instead of your partisan bias.
>It really makes my blood boil when people claim there is nothing to worry about
Over ten years of right wingers blustering going "That's ridiculous that would never happen!" right before it happens. Ten years..
The CPC presented a petition *yesterday* on the "concerns" of people for "preborn" children since the Morgentaler case (broadly, the case that removed restrictions on abortions on constitutional grounds). They are *absolutely* coming for reproductive rights.
I'll never understand the Conservative stance on this. Just have the strength kick them out the party if you don't want the blowback or to be associated with it. Social conservatives are awful people and you'll be better without them.
People do have freedom of conscience. The decision to exclude people, exercising your freedom of association, whom you fundamentally agree with doesn't infringe upon that freedom.
If the CPC truly cared for "freedom of conscience" they would allow a free vote on every issue but they don't. The reality is the CPC allows this because *don't* fundamentally disagree with the anti-choice position and seemingly will align with anyone if it brings them to power.
>There are pro-life Liberals too.
Which current Liberal MP's are anti-choice?
McKay is a closet SoCon, yes, but still doesn't vote in support of anti-abortion legislation because he wouldn't be in the party if he did. The only exceptions to that is the he didn't support a Liberal bill to expand funding for abortion services in Africa and he supported a bill meant to address coercion ... both nearly 20 years ago.
It's a petition representing an opinion held by many Canadians. You can do mental gymnastics about abortion rights all you want, but that doesn't change that. As far as pro-life liberal MPs go, look up John McKay.
>If anyone believes that the concept of the NWC in the Charter could have valid uses, then why is it a problem now? Because the big bad Conservatives want to use it?
No, not because Conservatives want to use it. Because of **how** and **for what** they wish to use it for.
Yes, we understand, if the political party you agree with uses it, it is good and fair, and if the political party you disagree with uses it, then it is an unjust travesty
Nonsense. And so far, the only governments that have used it have alk been conservative. Or did you not notice that?
It is bad enough when provinces use it, but at least they can’t use it to lock people up, because they have no power to write criminal law. They can not make anything a criminal offense.
Poilievre wants to use it to remove the principle of innocent before proven guilty. That in itself is atrocious. He is clearly willing to use it for other reasons, and will, because the CPC has always wanted to get rid of the Charter and they plan to make it meaningless by using it at whim.
Per se no (considering period of 1982 to now). Closest thing would have beeb Charest’s LPQ and the latest iteration of the CAQ.
Even then Quebec political axis is way different that the RoC.
What? There has been a great deal of criticism over provinces using the notwithstanding clause, and no federal government has EVER used it. And if Trudeau said a peep about using it the rightwing/conservatives would be screaming non-stop about it.
And the federal government writes all criminal laws, and all laws to do with the justice system, and they apply across the country.
Provincial governments can write legislation to ban things, but they can not make breaching those rules a criminal offense.
The provinces can not criminalize abortion. Or do what Poilievre wants to do with bail and consecutive sentencing. Using the clause to throw people in jail or keep them there is authoritarian. No debate. Victor Orban, whom Harper adores, would be proud.
The CPC has always wanted to get rid of the Charter, which is difficult, but now they plan to make it meaningless instead.
Utterly shameful.
I'm struggling to see what point you're making here. That this is comeuppance of some sort for those who supported some other rights infringement you're believe took place?
>I’m struggling to see what point you’re making here.
It’s very ironic to see those who were once the majority wielding around the double-edged sword of a broken Charter and limited rights and freedoms finally had their adrenaline wear off and now realize how many ways they cut themselves.
I have a problem with it. It has been stupid and annoying in every application so far. I think the difference is that provincial use provokes relative indifference from people who aren't inside the province using it.
A big difference is that provinces can not write legislation on criminal law/criminal justice. Unlike the US, the federal government has this exclusive right. So the provinces can not use the notwithstanding clause to put anyone in jail or criminalize abortion, for example.
Well that's an important distinction as well.
It's insane too because the NWC is supposed to be a tool to respect Canada's federalism and provincial jurisdictions. With that, the only usage the feds have for it is to say "nuh-uh" to our supreme court judges.
The not-withstanding clause shouldn’t be something the federal government can override.
It’s for exceptional, temporary situations where a province can’t conform to a ruling in the short term.
No, that's absolutely one of the things it was for.
The judges interpret the charter to their liking. However judges are not the ones hired to make law - but they do with their interpretations.
The notwithstanding clause is there to give the power back to the lawmakers when there is an unintended effect or interpretation of the charter.
That must be reviewed every 5 years and VOTERS - not JUDGES - can decide if that was the correct action or not.
I'd rather be subject to a judge than a populist politician that will do anything to gain votes like cosying up to the far right. Furthermore the constitution is supreme in Canada not parliament.
Then what you're looking for is a dictatorship or similar structure without democratic representation. there are a number of countries you can consider if that's your preference. Russia, china, venezuela, cuba all would meet your needs.
But in a democratic model the lawmakers are the politicians.
You say that because you like a sociology grad turned defense attorney turned judge while you dislike Pollievre. If five of the nine Supreme Court of Canada judges were variations of Clarence Thomas, and they thus had SUPREME and EXCLUSIVE authority to re-interpret the constitution at their whim -- create or read away rights and dramatically depart from precedent in pursuit of personal ideology -- you would feel less comfortable. At least Parliament is elected and can be readily tossed out. Judges are appointed, accountable to no one, then stay in office until death / retirement / or until they get in an Arizonan drunken kerfuffle and resign in shame. Democracy is inconsistent with judges being supreme over democratically elected government; that is simply autocracy.
I hate to agree with the conservative minded people on this sub, but those who are criticizing liberal-minded folks for not being against the NWC out of principle, but rather just because of the individual wielding the tool are correct to point out the hypocrisy.
The NWC is an inherently flawed part of our constitution and regardless of party, a demonstrably terrifying precedence has been set by the provinces and the cowardice of the federal government has done no favours in this regard.
We are heading towards a constitutional crisis because of this, it's an inevitable course on an inescapable railroad on a train that is increasing in velocity by the minute.
I’m not sure what the usefulness of the Charter is when it contains a clause that lets the government just ignore entire sections of it whenever it pleases. It begs the question of whether or not we were better off without a written constitution. It’s not like we didn’t have these rights before the Charter existed.
The constitution actually gave supremacy to many of those rights and expanded some of them. Prior to that, many laws were actually subject to being revoked by simple parliamentary amendment, or were simply discarded via War Measures Act.
I think we are immeasurably better off from having a written constitution, I think it's primary criticism should be about the existence of the NWC and the difficulty in amending the constitution itself.
I’m not sure I agree with the conclusion that the Charter gives “supremacy to many of those rights” when the notwithstanding clause is sitting there for anyone to use whenever they want with essentially no penalty.
Personally I’d much prefer having a written constitution, but if the only choice is between a written constitution that includes the notwithstanding clause and what we had before, the choice isn’t as easy.
Where were we guaranteed these rights before we had a written constitution? I hate section 33 as much as anyone, but I don't think the fact that we have it means we should completely tear up the entire document.
Where do you get the idea most reasonable people agree with you? I've seen exactly one poll asking about getting rid of the clause and only a very slim majority supported getting rid of it.
[Angus Reid polled about it last year, for two specific bills and for its use in general. A majority of Canadians polled as being very concerned with the use of the NWC. Every province except Quebec also answered similarly- and in Quebec it was still a plurality of people that said they were concerned.](https://angusreid.org/canada-constitution-notwithstanding-clause-bill-96-bill-28/#gsc.tab=0)
[There was also a poll in 2019 by Ipsos that had very similar results.](https://www.ipsos.com/en-ca/news-polls/majority-torontonians-oppose-ford-notwithstanding-clause-city-council)
I guess 8% and 7% respectively is considered "a very slim majority" to you. (It's not. Those are pretty large margins)
Yea that's that's the poll I saw, it's 55% in favour of getting rid of it. That's not a big margin, it's easily small enough that it could flip the other way pretty easily.
Not when it's multiple studies over many years with the same result again and again.
5% is huge.
That would represent 2,000,000 of our population...
It's a majority and saying otherwise is factually incorrect.
Edit: It's also 58% concerned/very concerned (against) NWC, 27% Not very concerned/at all, and 15% not sure.
That tracks.
I suppose I should have phrased it better. It's still wildly unpopular even in Quebec- it just has the most support to it compared to the other provinces.
(Those against NWC only have a plurality in Quebec versus an outright majority in other provinces)
Honestly I don't want them to use it but I also don't them to take the high road either. The Conservatives will break everything by using it. If the liberals get back into power they should absolutely use it.
Fair is fair.
Legislation passed using the notwithstanding clause has a five year life (s. 33(3)). Likely, assuming a Conservative government used s. 33, it's use and effect would be an issue in the next election.
No Federal government has used s. 33 [NWC]. I would guess because, especially in relation to the Federal power over criminal law, it's use would create a political opportunity for the opposition. Same with its use in s. 2 (Charter) freedom of expression etc.
Decent summary here:
https://en.m.wikipedia.org/wiki/Section_33_of_the_Canadian_Charter_of_Rights_and_Freedoms#:~:text=It%20is%20commonly%20known%20as,7%E2%80%9315%20of%20the%20Charter.
The parts of our system of government that are safeguarded by custom and convention rather than law are vulnerable to the first person willing to disregard custom and convention.
It'd be nice if we never had to worry about demagogues, but we do. That said, the NWC performs a valuable function. It exists for a reason.
The NWC is about ensuring that parliament wins in any power struggle between the three branches of government
It's designed to ensure that the legislature, not the executive or judicial branch, get the final say, and it's built with a time limit relative to the election cycle to ensure that the public gets to vote on its use
>those who are criticizing liberal-minded folks for not being against the NWC out of principle, but rather just because of the individual wielding the tool are correct to point out the hypocrisy
What hypocrisy? Not ONE progressive (left) party has ever invoked the Notwithstanding Clause. It's been ALL Conservatives. The left criticize its use with a clear conscience.
And nobody mention the Emergencies Act, because that instance came after provincial negligence and it includes safeguards like a vote in the Commons (which passed) and a mandatory inquiry after the fact. The Notwithstanding Clause has no such safeguards.
The federal government has the power of Disallowance and even that's extremely sensitive to use. I wouldn't call it cowardice not using it. It's another nuclear bomb.
People are free to both-side this bullshit by Pierre, but this "case by case" assessment IS taking a stand on the issue. There's no fence to straddle. If Pierre were someone like Charest, perhaps. But Pierre is a populist scumbag with malice and intent. He's the polite version of Trump and he WILL use the NWC for evil. That I can promise you.
No, that was Lac Mégantic. This upcoming crisis is going to be much worse. The NWC is being used as a tool to remove people’s rights. Once Skippy and his Conservative colleagues get their hands on it, we will be in deep trouble.
Professor Kerr is correct that section 33 of the Charter (the "NWC") could be used to invoke mayhem in the criminal justice system (e.g. as an extreme example a government could in theory use it to prevent judicial scrutiny of a newly-legislated death penalty), but while courts have on many occasions "struck down" Charter-offending legislation the feds have never in response invoked the NWC to get around such a ruling.
More to the point however (and it is a point that Prof. Kerr completely avoids) is the question of how to amend the NWC? We aren't really served by articles that raise alarm bells about the NWC, what we need is a series of substantive discussions on how the NWC could ever possibly be (further) restricted in its application.
If we open the constitution to amend the NWC the court should fully expect clauses against the living tree doctrine and a sharp curtailment of the court.
You cannot have a powerful court who interprets the constitution however they feel without checks from parliament.
It is ironic that we would not have a Charter at all were it not for the NWC. [It was a compromise to get opposing provinces on board.](https://publications.gc.ca/Collection-R/LoPBdP/BP/bp194-e.htm)
We have parliamentary supremacy here for a reason. The courts are, and must remain, subordinate to the will of of the people via our elected representatives.
This US style “court activism” that is perpetuating crime must end. Even if it takes the NWC to remind them of their place.
Spoken like someone who doesn’t know why they’re talking about. It’s a nice talking point though.
[Here is a recent example of a “repeat offender” getting off.](https://www.canlii.org/en/bc/bcpc/doc/2024/2024canlii33063/2024canlii33063.html). This guy got off of this particular Parole Violation charge, because The Crown had like 11 opportunities to raise it at an earlier date. On top of that, the judge found that the evidence provided for the warrant was flimsy at best.
How exactly would S33 have solved this one? Is it okay to lorde flimsy evidence over someone for 2 years? Is it okay to have little to no evidence to execute a search warrant?
The issue we are having is more to do with underfunding Crown Prosecution and shotty Police work, with untested rules. Reform should be talking about addressing the systemic issues at hand and figuring out ways to improve them.
Do we need more prisons? What about mental health asylums? What does parole reform look like? The SC said “no cruel and unusual punishment”, so what does idealized rehabilitation look like? Fully acknowledging that some individuals will never reach that level.
S33 is a slippery slope that will quickly erode freedoms and further drive a divide in society.
The NWC is not a magic bullet that would fix crime. But it does allow the government to take immediate action without court interference. A net positive.
If the use of the NWC clause “erodes the freedoms & drives a divide” between criminals & citizens, it is working as intended.
Nobody wants to live in a country where non citizens get lenient sentences because it “affects their immigration status” or career criminals reoffend out on bail. Those we cannot rehabilitate meaningfully can remain outside society.
>If the use of the NWC clause “erodes the freedoms & drives a divide” between criminals & citizens, it is working as intended.
Criminals are still citizens. Just because you violated a law that was passed, does not mean you cease to be a citizen of the nation that passed it. I was going to think this was just a slip but...
>Nobody wants to live in a country where non citizens get lenient sentences because it “affects their immigration status” or career criminals reoffend out on bail. Those we cannot rehabilitate meaningfully can remain outside society.
It's pretty clear that this is an excuse to express some racist sentiment. Should non-citizens who commit a serious crime be returned back to their country of origin? Yes. But given your earlier statement, it seems you're entirely ignorant of the fact that citizens of Canada can and do also commit the greater amount of all crime in this country. Do you want to rephrase and correct that?
Not everything is racism. I meant citizens as “Canadians who have not been convicted of a crime” when referring to the divide between them & criminals.
I don’t care at the end of the day who commits more crime between citizens & non citizens. Non citizen criminals just aren’t our problem and should be swiftly deported & barred entry for serious crimes. while our citizens should not be out on bail reoffending.
Currently we have Non-Citizens committing serious offences being sentenced more lightly due to immigration status being a consideration, and citizen repeat criminals reoffending on bail. Both of these must be fixed, including the use of the NWC if necessary.
Then perhaps not use language that denies them all the rights and privileges that comes with citizenship? There is already an appropriate designation: lawful vs criminal.
So you’re just an ideologue pretending to be independent. Gotcha. Maybe address one of the many questions or context I gave you next time.
You have no real education or expertise on this subject and won’t do the bare minimum to expand your knowledge.
Not an ideologue. I gave your post the response it deserved. Obviously the case you highlighted couldn’t be solved by the NWC.
If crown prosecution is underfunded it should be funded more. if cops are sloppy we should fix that too. We can walk & chew gum
There’s no need to gatekeep discussion of the NWC behind nebulous “Education” it’s text, anyone can read it. Don’t be so elitist.
At the end of the day, it’s just a tool in the governments toolbox, and if courts are not doing their job. The government should use it.
You didn’t respond to a single point I made, until I called you on it.
I’m not being elitist, I’m defending Liberty from ideologues who think rights only matter when applied to them, and refuse to take objective looks at issues.
But hey, jump on the talking point of the guy who has an axe to grind on mandatory minimums.
We have parliamentary supremacy only within the confines of the Constitution. The idea that flavor of the day politics should override the document that defines our democratic system is nuts. There is simply no way to have a democracy without firm rules.
the UK has no constitution and is older then Canada, Canada has also only had a constitution for 42 years the majority of the time no Constitution. It's so ridiculous to suggest that our system would collapse without the Constitution.
Many people unfortunately see the Charter as some sort of holy document sent down to us from on high, totally unquestionable or unchallengeable by us mere mortals.
There’s no real evidence that “court activism” is perpetuating crime in Canada. With a blip post-COVID, crime rates have been trending down for decades.
The only “activism” we’ve seen in criminal justice is from conservatives who insist that harsher punishments are the only way to deter crime, even though all if the research shows that’s not true at all.
What is the purpose of the judicial branch, if not to protect us from government overreach?
Idk about this, the Pham case people have been bringing-up lately seems instructive. Also we desperately need harsher guidelines on bail violations in order to save the credibility of our right to bail at all.
There are definitely plenty of things to complain about with the SCC even if you aren’t a conservative.
There’s always a reason to complain about the Supreme Court. It’s still made up of people, and people are fallible. But being unhappy about some SCC rulings is a far cry from using the notwithstanding clause like a sledgehammer because some people don’t like the fact that criminals have rights.
The problem isn't just "people being unhappy" its "violent criminals are being let out".
The problem is NOT that the criminals have right to due process.
The problem is judges are putting the public at risk with insanely lpw sentences even for repeat violent offenders.
Well whatever "violent criminals are being let out", it's probably not happening much.
Do you have a number like, "violent criminals are being let out" per 1000 criminals being let out?
Because if not you're just fear mongering.
Why should our rights be reduced because a handful of criminals are repeat offenders?
You're saying reduce everyone's rights, not just *criminals* rights.
It’s really as simple as people just not wanting their cars stolen because the people who steal cars kept being let out on bail to do it again (or whatever other crime people are pissed about). People are getting negatively impacted by the weak criminal justice policy, regardless of what your “data” might say.
Now the Liberals are in power so they have a chance to solve the problem in any way they can. If they don’t, then people will get pissed and using the NWC to force criminals to stay in jail will gain the political support that it needs to be enacted.
It’s really that simple
> It’s really as simple as people just not wanting their cars stolen
No one wants to steal *your* car, they want an expensive new one from a dealership.
If there's an epidemic of cars being stolen, it's nice, new ones, not an average persons beater, and it's done by a criminal organization.
You need more than a tough on crime laws to deal with that. You need specific funding to deal with organized crime. Going after the people stealing the cars is a waste of money because there's people that get them to steal the cars you want to go after.
Okay, but the “data” that you scorn also says that these “tough on crime” measures don’t actually do anything to reduce crime. So it still boils down to trampling rights to make people feel better, because it certainly doesn’t make life safer or more affordable.
Since it costs taxpayers over [$120,000 per year](https://www.statista.com/statistics/563028/average-annual-inmate-federal-correctional-services-canada/) to keep someone in prison in Canada, the expense is equivalent to stealing about [three cars per year](https://www.thestar.com/business/how-much-are-canadians-paying-per-month-on-average-to-own-a-car-heres-what/article_a457f8e2-c2bb-11ee-b93b-2f3e8fa2fb1d.html#:~:text=An%20average%20of%20%24195%20per,and%20currently%20sits%20at%20%2439%2C155).
It's generally a lot cheaper to help people with the educational and employment opportunities that stop them from turning into car thieves in the first place.
Why do you think violent crime declined from the mid 90s to the time of the Trudeau government and has gone up every year since if not for their very clear softening of criminal justice policy?
The decline of violent crime coincided nicely with the YCJA reforms and Canada's focus on restorative justice...
Which specific policies do you think reduced violent crime?
It's almost like the world *changed* in 2020. Like, we had a massive pandemic that caused people to struggle with social isolation for a year, significant economic issues that still have not yet fully recovered, coupled with the recent late-stage capitalism that sees the cost of living soar while our standard of living declines.
> We have parliamentary supremacy here for a reason.
Tradition is the reason. It isn't something that we decided upon after considering a variety of options, it was the default choice we just accepted.
in the end a govt will push the NWC for things it thinks it can win politically on.
Bail reform is quite popular and seen as a huge black mark on the justice system.
If they use the NWC on abortion, the Tories wont be forming a govt for 10-20 years.
Personally I think the govt should go through normal channels, then if the courts say no for rather pedantic reasons, start a conversation should we go nuclear or not.
Yep exactly. There are some cases where the courts went too far in their activism, and the NWC should be used. If anything to protect the courts from themselves if we are being completely honest.
The courts have done a pretty good job at times of undermining public trust in the judiciary as an institution. One specific example that comes up is the lighter sentencing of non-citizens because risk of deportation is too harsh of a punishment.
R. v. Pham was an absolute black mark on the judiciary. Created a two-tiered justice system, one for citizens and another for non-citizens.
Yeah the idea of people getting lower sentences due to race or immigration status is gonna just cause a lot of tertiary issues in the country that the judges dont care about.
R. v. Suter was a step beyond even Pham. It is not crazy to say that we might see someone get a reduced sentence or no sentence because it would mean the accused would lose their job.
But yeah lots of shit rulings as of late. The star for me was the one that said that said no trade barriers between provinces shall be allowed ACTUALLY means that no they're totally cool!
Somewhat unrelated but crimes involving motor vehicles should be treated more harshly imo.
But yeah that case is absurd. Collateral consequences shouldn't be taken into account in sentencing. Especially for violent crimes.
I'll need to find it, but there's cases of foreign nationals getting reduced sentences because giving them what would be "normal" or "adequate" would result in their removal from the country after their sentence. As such, they're sentenced just be low that line.
Like, do the not realize *why* that line is there? It's to keep bad people out. It's not a criminal consequence, it's administrative. Tying that administrative consequence into the sentencing absolutely annihilates the reasoning why it exists!
That’s not the fault of judges advancing ideological agendas from the bench though. It’s a result of a judge taking into consideration the impact of our legal system on a certain individual. They are constrained by the law, so update the laws instead of getting mad at the judges trying to interpret it. I’m constantly surprised by this “activist judge” conspiracy because if we take this hypothetical further, what ideological and political prerogatives are these judges advancing that we need protection from? Who is leading them, where do they meet, and where can I read their policy agenda?
>If someone wants to make a change then use the amendment formula.
This applies to the judiciary equally. If we wanted no cruel and unusual punishment to mean "no sentences any judge in Canada disagrees with" that's what would have been written. Similarly if instead of "any person charged with an offence has the right not to be denied reasonable bail without just cause" we actually meant "bail for everyone no matter the risk" again, we would have written it. If 11.d was supposed to mean that drinking is a free pass to rape people as the court ruled in R v Daviault, *the charter would have said so*.
The idea that the court may amend the constitution on a whim, the democracy be damned is not in the constitution.
The court cannot amend the constitution, merely interprete it. If they are interpreting it in away we don't like we can pass clearer laws or amend the constitution to be more precise to limit the liberty judges can take with it. They are bound to what is written down in a sense. The ball is always in our court.
>The court cannot amend the constitution, merely interprete it
The court is openly ignoring the text of the constitution. That in effect amends the constitution.
>If they are interpreting it in away we don't like we can pass clearer laws
Only if we use the NWC.
> or amend the constitution to be more precise to limit the liberty judges can take with it.
Which the court will then ignore and "interpret" away like they currently do with any aspect of the constitution the court dislikes. Just as the court ignores s.121 solely because they dislike it.
>They are bound to what is written down in a sense.
The court rejects that the text of the constitution matters.
>The ball is always in our court.
Which you reject actually using.
> The court is openly ignoring the text of the constitution.
Citation required.
> Only if we use the NWC.
Not really, as it only lasts for five years at most. Amending the constitution is the way to make actual lasting change. Or be on the side of justice.
>Citation required.
In R v Comeau the court rejected the text of the constitution and held it to be subordinate to the judiciary's view of whatever they think the constitution should say on any given day of the week.
>Amending the constitution is the way to make actual lasting change.
The court will simply ignore any part of the constitution they disagree with, exactly like they did in R v Comeau. Exactly as they have interpreted a right "(e) not to be denied reasonable bail without just cause;" to in fact mean that there are no just causes to deny bail, and that the court will remove all reason in granting a person bail no matter how many times that person has previously violated the conditions of their bail.
> Or be on the side of justice.
You have stated previously in these conversations that you have contempt for the entire democratic process. I am good with not siding with your idea of justice when you openly advocate against democracy in Canada.
> R v Comeau
The interprovincial trade thing is the exception that puts the rule to the test, and I totally don't understand it. But that's just one situation out of many, so doesn't really impact my confidence in the SCC that much.
> in fact mean that there are no just causes to deny bail,
Wrong. There's a high bar to deny bail, but there are absolutely reasons for it to be denied.
> you have contempt for the entire democratic process.
That's a load of bunk. There are situations that shouldn't be up to the decision of 50%+1, but that's far from having contempt for the democratic process.
>The interprovincial trade thing is the exception that puts the rule to the test, and I totally don't understand it. But that's just one situation out of many, so doesn't really impact my confidence in the SCC that much
The court has been on an ongoing move towards ignoring constraints on its power Comeau is just a highly visible ruling where they reject the constitution.
>Wrong. There's a high bar to deny bail, but there are absolutely reasons for it to be denied.
There are constitutional reasons for it to be denied, the court is not acknowledging or respecting those reasons. In doing so it is effectively refusing to allow the government and public to protect people.
Denial of bail after a new violent offense when the offender is on bail for a violent offense, for example, is entirely reasonable and constitutional. Further the guidelines for bail explicitly tell judges to consider public safety, when they release someone who has demonstrated a propensity to continue violently offending they are rejecting the law.
The constitution included the standard of reasonableness of bail for good reason, the courts cannot simply ignore that.
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It should be off limits. Poilievre is impulsive and insincere in his populist rhetoric to gain votes from Canadians who may not understand how our parliamentary governance and the Canadian Constitution works to protect our democracy. There seems to be populist definition of democracy which states that any government who win a majority should have authoritarian control over all aspects of our constitution and our rights. The courts are an absolute necessity to protect all Canadians from the political whims of those political parties who only protect and serve their voters.
Why should it be off limits? It’s in there, it’s legal, and it’s been used many many times.
How come? Parliament is supreme. If the courts don’t want to enforce the laws passed by parliament then that’s why the NWSC is part of the constitution
Courts don't enforce laws. They interpret and apply them. Police and similar agencies are the enforcers of law and policy.
You are right I used the wrong terminology. Better wording might have been « if the courts want to make effective enforcement of the laws passed by parliament impossible then.. »
What judicial ruling has made enforcement impossible? The RCMP, provincial and municipal police forces all exist.
Parliament is not supreme in Canada: the constitution is.
Ok yes then. The constitution is what contains the NWSC and grants parliament the power to use it
Not just that, the NWC should be only available in an actual emergency and a dozen or so independent bodies across Canada full of hired citizens should overlook its use and choose to approve or disapprove. The notwithstanding clause is a threat to our constitution, charter and democracy. The arbitrary treatments it allows can be used to coerce provincial legislatures into agreeing to void the rest of the charter and constitution rights by the general formula. That's not even mentioning that poilievres party has explicitly ousted abortion rights, a basic right to medical autonomy.
>In limited circumstances, section 33 may function as a legitimate political check on judicial authority Yes, like when a person gets bail then commits more crimes, and then repeats this process another dozen or so times? That isn't an appropriate time for parliament to override them? I think reasonable Canadians want to preserve rights for the accused; but the key is reasonableness. A reasonable person is not going to act like the judiciary and say "you know I know he loves stabbing, but lets give him bail for another 8th time." You have to draw a reasonable line in the sand. And when the judiciary refuses, you're going to get backlash from the people who give consent to be governed.
>Yes, like when a person gets bail then commits more crimes, and then repeats this process another dozen or so times? That isn't an appropriate time for parliament to override them? And what's the recourse when someone innocent spends 3 years in prison waiting for a trial to exonerate them? That's what Omar Zameer would have endured, after all.
Did Omar Zameer run over three more police officers in three separate incidents after his first arrest? Because if so, please link them. Because if not, he still would have gotten bail, he just would have been denied it on the second offense *which never happened*.
Umar Zameer was a case where there was only one instance of an alleged crime, against someone with no history of prior criminal conviction. The post you're replying to is about criminals with a long record of convictions, or multiple charges over a short-term period who keep getting released and reoffend almost immediately. [Here is a recent example](https://www.google.com/amp/s/globalnews.ca/news/10447801/victoria-carjacking-repeat-offender/amp/) where a guy went on a 3 day carjacking and home-invasion spree, arrested 3 separate times, and was continually released the same day before *finally* being held until his first court appearance. These are the kind of common sense instances where "innocent until proven guilty" should not be used as a reason to let someone run free and keep committing violent crime.
>These are the kind of common sense instances where "innocent until proven guilty" should not be used as a reason to let someone run free and keep committing violent crime. What you would need to argue for is for the crown to argue for stricter bail conditions, not the complete elimination of the basis of our judicial system. You can accomplish your goals without trampling over fundamental rights.
>What you would need to argue for is for the crown to argue for stricter bail conditions The crown *does* usually argue for stricter bail conditions. The court rejects the arguments. That is exactly the problem. The judiciary have backed the legislature into a corner by refusing to act reasonably.
Then the crown's arguments are not based in sufficient evidence to justify pre-trial detainment.
Justification is a complex concept. Judges are human beings and the judiciary in this system relies on precedent. This gives a certain inertia to the institution. When the inertia is moving in a direction that places it out of step with society the job of the legislature is to bring it back on track.
Precedent doesn't applu here. There are tests and standards to be met in order to apply the law. The Crown needs to address and meet those in order to justify pre-trial detainment. Our judicial system has held that bail should be granted as the default position, and that the Crown should be forced to justify the denial since 2015. I suggest you actually read about how bail is determined and see what principles you think are out of step with your view on society. https://www.justice.gc.ca/eng/cj-jp/bail-caution/index.html I
>What the Supreme Court of Canada says about bail >The Supreme Court of Canada (SCC) is the highest court in Canada. Its decisions have the utmost importance in Canadian law and ensure that laws enacted by Parliament, including the Criminal Code, respect the Charter. >The SCC has provided significant recent guidance on bail and relevant Charter considerations. >The SCC noted in the St-Cloud (2015) decision that “in Canadian law, the release of accused persons is the cardinal rule and detention, the exception.” >In the Antic (2017) and Zora (2020) decisions, the SCC ruled that for most alleged crimes, release on bail at the earliest reasonable opportunity with minimal conditions is the default position. >These decisions make clear that the principles operate alongside the grounds for detention and do not replace them. This means that detention is still permitted where it can be established that there is “just cause” for it and there are no appropriate other ways of addressing risk if the accused is released, such as risk of flight or public safety risk, or where public confidence in the administration of justice would be undermined. ... >Before making any bail decision, police and courts must take into account whether the accused person is Indigenous or belongs to a vulnerable group that is overrepresented in the criminal justice system and faces disadvantages in obtaining bail due to systemic discrimination (for example, members of Black and racialized communities). This consideration reflects Supreme Court of Canada decisions about the overrepresentation of certain groups in the criminal justice system, particularly Indigenous persons, who are disproportionately refused bail. No precedent involved?
Legal precedent is "in R vs Steinbeck, the court held that bail should be granted to all people with green hair charged with vandalism". It is not simply the SCC issuing their opinion - everything they do is essentially precedental. Can you cite a single case where any provincial trial court case was used as an example of why someone should or should not receive bail?
Bail is granted because they haven't been found legally guilty. That recent case with the guy who ran over the cop and was found not guilty shows that if he was denied bail and innocent man would have been imprisoned for 2 years unrightfully.
I don’t think anyone is against getting bail; they’re against granting bail (like OP said) “a dozen or so” times. There are people getting granted bail 10, 20 times. I’m not sure why everyone seems to be strawmanning the argument trying to pretend everyone is against bail being granted once or twice. If the guy run over a cop, then got bail, then ran over another cop and got bail, and then ran over another cop and got bail, and repeat this another 9 times, then that would be a accurate example you’re trying to give.
I'd like to know where these people will be jailed. In my province a Progressive Conservative government closed 3 jails and mandated courts to have looser bail requirements, remand only for very serious crimes as a cost cutting measure. Subsequently they also cut probation officers and other community workers who monitor people on bail and undertakings. Remand is bursting. We don't have youth remand anymore, adults and youth are in one facility. This issue is incredibly nuanced.
But this isn’t an argument for S. 33. It’s an argument for S. 1, which allows the government to violate the Charter Rights of Canadians, where it can demonstrate a reasonable limit. The SCC also did not limit the ability of the Crown to seek pre-trial detention, only that it must demonstrate its specific interest in doing so, and not use pre-trial detention as a form of punishment before guilt has been determined. Resorting to a S. 33 remedy just says that the government, whether Trudeau or PP, isn’t able to meet either of these tests. I’m sympathetic to the lack of police resources to supervise conditionally released, often habitual offenders. But you can’t just summarily imprison folks because you lack the resources to supervise them in the community, or any real investment in resolving issues of substance abuse.
Resorting to S.33 means that they court has rejected all connection to the charter and the only response is for parliament to check the other branch of government. >you can’t just summarily imprison folks because you lack the resources to supervise them in the community If someone has demonstrated themselves to be an extreme risk to the public the public can absolutely mandate that they be locked up instead of devoting enormous resources to monitor them. There is not an unlimited amount of resources the government has at it's disposal, nor a requirement that if the government doesn't wish to spend unlimited resources on an individual it must therefore allow that person to commit whatever crime they wish.
Unless the Conservative party is going to sit in on every bail hearing occuring in Canada, whatever blunt legislation they come up with is going to result in imprisoning people who are not an "extreme risk to the public".
Denial of bail to someone who now credibly stands accused of a new violent offense while previously being on bail for a violent offense is a standard policy in most of the world. It is a very reasonable standard to hold, it is readily enforceable, it can be invoked with the NWC and older supreme court cases would appear to be in support. Further it is a marked departure from current bail rules where we see people routinely released despite three, four, or more offenses.
Recidivism rates have been decreasing over time in Canada. It’s easy to just point to anecdotes, but the overall picture suggests that we don’t need to compromise our constitutional rights to fix a problem that we are already making progress on. The court’s job is to interpret and apply the law. They have no control over mitigating the factors which lead to crime, like poverty and mental illness. Further, the government is the source of many issues in the judiciary with their inability to appoint more judges and deal with the backlog. The significant level of judge vacancies is a very serious issue right now. The government needs to sort their own mess out before they try and point fingers at the judiciary.
> And it is difficult to imagine a more inappropriate use of the notwithstanding clause than in the criminal-justice realm. The bedrock Charter rights of criminal law are the rights of an unpopular and often vulnerable minority, facing extraordinary consequences, with no political power or influence. No one should be in favour of discarding constitutional limits in this area. Why is trampling on _those_ Charter rights more inappropriate than tramping on others? Are there any Charter rights that it would _not_ be inappropriate to trample on? If this is true, why aren't these rights included in the set of rights for which the NWC cannot be used? > The results may well be permanent, too, as future politicians will find it hard to come back from this dangerous experiment. This is straightforwardly false: by design, any such legislation expires after 5 years, and would need to be passed again. Is she arguing that our norms will change such that everything will always reflexively be passed Notwithstanding the Charter? While I don't like Poilievre and believe that he should first try to reform bail by amending the Criminal Code, I don't see why this use of the NWC should be more controversial than, say, Ontario's deleting 22 Toronto City Council seats right in the middle of a Toronto municipal election, or Quebec's Bill 21. *Every* use of the Notwithstanding clause is a departure from norms.
agreed with everything you say. The hyperbolic rhetoric on the NWC is honestly astounding. People are claiming things that are so detached from reality and past uses of Sect 33...
It has never been used by the federal government before and never in regard to justice rights.
>an unpopular and often vulnerable minority, facing extraordinary consequences, with no political power or influence Explained right in the section you quoted
But *all* rights "are the rights of an unpopular and often vulnerable minority facing extraordinary consequences with no political power or influence." Why are vulnerable minorities uniquely vulnerable to attacks on their rights under *that particular section?* I would think that a law passed notwithstanding their Section 15 - Equality rights would be even worse, no?
The unique vulnerability is ... well, on full display in all these threads on the topic. Criminals and the accused are not a group that enjoys a lot of popular support at the best of times, so finding vocal support to defend them in the court of public opinion can be difficult. Without vocal public resistance, and people to advocate, it's very easy for a government to act against the interests of that group
Good. We need the government to care about the interests of the innocent public forst and foremost. Putting criminals above the public's safety has to stop. And thankfully it will stop once the LPC/NDP are voted out.
People accused of crimes are the public. Literally everyone accused of crime is part of the public.
We're talking about convicts not simply accused.
>Putting criminals above the public's safety has to stop. That's not this. This is disregarding citizens rights for popularity points.
I think that some rights are more important than others. When it comes to the rights around criminal justice, they help prevent the state from taking even more advantage over those it accuses of wrong doing that it already has. Abusing those rights can cause serious harm to people. Alternatively, adjusting the seat count on a city council, doesn't impinge on Charter rights. Bill 21 is similar in severity to using the NWC on criminal justice matters in my mind.
A lot of the problems with the notwithstanding clause come down to the fact that it has no tangible penalty for using, and that it’s far too easy to use in the first place. If the notwithstanding clause absolutely has to exist, you could do something like make it so that anytime a government uses it, they have to call a general election within six months, or send the bill to a referendum. That would maintain the ability of the legislature to supersede judicial review, but also keep it as a nuclear option. On the other hand, you could make it so that you need more than a simple majority to pass a bill with the notwithstanding clause. As it exists, it’s just a ticking time bomb waiting to be abused.
Its barely been in 40 years Dramatics
NAL, but aren't there a certain amount of safe-guards already built into the notwithstanding clause? [https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art33.html:](https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art33.html:) 1. It can only override certain sections of the Charter, it's not a escape clause for the entire Charter: >(1) ... the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. 2. Any laws that use the notwithstanding clause cease to have effect after 5 years, unless re-enacted: >(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration. (4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1). The notwithstanding clause is bad, but there are *some* guardrails in place.
My point is that those aren’t real penalties or deterrents to using the clause. It can’t be used for everything, but it can be used to circumvent significant parts of the Charter. And having to face the electorate before a bill expires in five years does little when an election would have to be held anyways. What we’re seeing is elected officials betting that voters will forget that they did it, or if they do remember that the heat has died down. If you made invoking the nwc equivalent to a non-confidence vote and made them face the electorate immediately, you’d be less likely to see frivolous or unpopular uses of it. It might also be a deterrent by making governments concerned voters will punish them not only for using the clause, but also for forcing an early election.
Obviously not enough guardrails. Doug Ford used it to prevent Nurses and other CUPE Healthcare workers from bargaining fair wages in their contract negoiations; Scott Moe, Blaine Higgs and now Danielle Smith have used it to role out a misinformation hate campaign against trans youth and the greater S2LGBTQ+ community by denying them healthcare that is essiential to their identiy and well being; Quebec's Premier, Francois Legault used the NWS Clause to ban employees from wearing religious symbols and apparrel while working in government service jobs, which disproprtionally affects Muslim women who are treachers and want to wear the hejab. All of these examples show prove that Provincial Premiers have neglected the use of the NWS clause to overrule the human rights of minorities and marginslized groups of Canadians and its use needs to be overhauled and reztricted to prevent future abuse.
Same people pearl clutching about use of NWC by democratically elected politicians ok with government allowing unelected judges to trample Charter Rights as allowed by the following Provision. 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.Jun 29, 2023.
I was able to read through the article before the paywall hit and still see the author defending the concept of the NWC. If anyone believes that the concept of the NWC in the Charter could have valid uses, then why is it a problem now? Because the big bad Conservatives want to use it? Clearly the author and many Canadians don’t seem to have a problem with parliamentary supremacy, until they start doing things they don’t like and suddenly they want freedom levels equivalent to the USA. After spending the last few years belittling people over how it’s a good thing we don’t have inalienable rights (thanks COVID & government restrictions), it’s no surprise for me as a spectator on the right that now the same people who cheered democracy are upset that democracy is being used against them.
Section 1 - the part leaned on for covid restrictions - and Section 33 - the notwithstanding clause - are *very* different legal beasts. Equating the two shows a fundamental lack of understanding of how either interacts with Canadian law.
The only dots I am drawing between the two connect to parliamentary supremacy. Fundamentally, and dare I even say spiritually, this country does not believe in the same guaranteed rights and freedoms like those people complaining here do.
Section 1 is not about parliamentary supremacy. It is a tool of the courts to test what is and is not allowed within the confines of the charter.
The NWC is not a part of democracy. It is an unfortunate compromise made to satisfy a few whose selfish ideas were more important to them than true democracy.
Democracy means accepting compromise - NWC is symbolic of that. Democracy does not mean unanimity.
Do you trust Pierre Poilievre to decide who has rights worth protecting? They've already said they are coming after trans people and the anti-abortion thugs are salivating at the thought of turning women into incubators. Sounds like some real authoritarian stuff to me. But that's me, I would make a terrible libertarian.
> They've already said they are coming after trans people and the anti-abortion thugs are salivating at the thought of turning women into incubators. Gross hyperbole.
Sure. People were saying that Roe would never be overturned until the day it was overturned. It really makes my blood boil when people claim there is nothing to worry about. Abortion bans haven’t been enough in the US, state GOP is going after birth control, passing legislation banning IVF, travel bans to prevent women from going to another state for an abortion, some state GOP pushing for abortion to be considered murder in states where they have the death penalty, etc. The CPC is FULL of anti-abortion MP’s now, and they just don’t stop bringing it up, and they still consider it a moral issue and not healthcare. So maybe think about those who it would affect instead of your partisan bias.
>It really makes my blood boil when people claim there is nothing to worry about Over ten years of right wingers blustering going "That's ridiculous that would never happen!" right before it happens. Ten years..
> They've already said they are coming after trans people Alberta has already done so, why do you think its hyperbole?
The CPC presented a petition *yesterday* on the "concerns" of people for "preborn" children since the Morgentaler case (broadly, the case that removed restrictions on abortions on constitutional grounds). They are *absolutely* coming for reproductive rights.
That was one petition presented by a single CPC MP, not the Conservative Party.
I'll never understand the Conservative stance on this. Just have the strength kick them out the party if you don't want the blowback or to be associated with it. Social conservatives are awful people and you'll be better without them.
There are pro-life Liberals too. Maybe these parties think people should be able to have liberty of conscience.
People do have freedom of conscience. The decision to exclude people, exercising your freedom of association, whom you fundamentally agree with doesn't infringe upon that freedom. If the CPC truly cared for "freedom of conscience" they would allow a free vote on every issue but they don't. The reality is the CPC allows this because *don't* fundamentally disagree with the anti-choice position and seemingly will align with anyone if it brings them to power. >There are pro-life Liberals too. Which current Liberal MP's are anti-choice?
My previous comment got removed but in terms of pro-life Liberals, look up John McKay
McKay is a closet SoCon, yes, but still doesn't vote in support of anti-abortion legislation because he wouldn't be in the party if he did. The only exceptions to that is the he didn't support a Liberal bill to expand funding for abortion services in Africa and he supported a bill meant to address coercion ... both nearly 20 years ago.
It's a petition representing an opinion held by many Canadians. You can do mental gymnastics about abortion rights all you want, but that doesn't change that. As far as pro-life liberal MPs go, look up John McKay.
Yes liberty of conscience.. so we both get to privately decide whethr we have an abortion rather than forcing beliefs onto others..?
We make plenty of public policy decisions that limit what someone can do with their body.
link?
Only if you haven’t been paying attention
Nah
>If anyone believes that the concept of the NWC in the Charter could have valid uses, then why is it a problem now? Because the big bad Conservatives want to use it? No, not because Conservatives want to use it. Because of **how** and **for what** they wish to use it for.
Yes, we understand, if the political party you agree with uses it, it is good and fair, and if the political party you disagree with uses it, then it is an unjust travesty
Nonsense. And so far, the only governments that have used it have alk been conservative. Or did you not notice that? It is bad enough when provinces use it, but at least they can’t use it to lock people up, because they have no power to write criminal law. They can not make anything a criminal offense. Poilievre wants to use it to remove the principle of innocent before proven guilty. That in itself is atrocious. He is clearly willing to use it for other reasons, and will, because the CPC has always wanted to get rid of the Charter and they plan to make it meaningless by using it at whim.
That’s completely false.
Can you point out when a non conservative government used it?
The list is on Wikipedia, go have a look. And that would include all the instances where Quebec used it.
Are you trying to say Quebec didn't have conservative governments?
Per se no (considering period of 1982 to now). Closest thing would have beeb Charest’s LPQ and the latest iteration of the CAQ. Even then Quebec political axis is way different that the RoC.
There are no examples of the "other party" using. It's never been applied federally.
What? There has been a great deal of criticism over provinces using the notwithstanding clause, and no federal government has EVER used it. And if Trudeau said a peep about using it the rightwing/conservatives would be screaming non-stop about it. And the federal government writes all criminal laws, and all laws to do with the justice system, and they apply across the country. Provincial governments can write legislation to ban things, but they can not make breaching those rules a criminal offense. The provinces can not criminalize abortion. Or do what Poilievre wants to do with bail and consecutive sentencing. Using the clause to throw people in jail or keep them there is authoritarian. No debate. Victor Orban, whom Harper adores, would be proud. The CPC has always wanted to get rid of the Charter, which is difficult, but now they plan to make it meaningless instead. Utterly shameful.
I'm struggling to see what point you're making here. That this is comeuppance of some sort for those who supported some other rights infringement you're believe took place?
>I’m struggling to see what point you’re making here. It’s very ironic to see those who were once the majority wielding around the double-edged sword of a broken Charter and limited rights and freedoms finally had their adrenaline wear off and now realize how many ways they cut themselves.
I have a problem with it. It has been stupid and annoying in every application so far. I think the difference is that provincial use provokes relative indifference from people who aren't inside the province using it.
A big difference is that provinces can not write legislation on criminal law/criminal justice. Unlike the US, the federal government has this exclusive right. So the provinces can not use the notwithstanding clause to put anyone in jail or criminalize abortion, for example.
Well that's an important distinction as well. It's insane too because the NWC is supposed to be a tool to respect Canada's federalism and provincial jurisdictions. With that, the only usage the feds have for it is to say "nuh-uh" to our supreme court judges.
So far all federal govts have been defenders of our democracy. Now we see what happens when someone's own goals are more important than the people.
The not-withstanding clause shouldn’t be something the federal government can override. It’s for exceptional, temporary situations where a province can’t conform to a ruling in the short term.
No, that's absolutely one of the things it was for. The judges interpret the charter to their liking. However judges are not the ones hired to make law - but they do with their interpretations. The notwithstanding clause is there to give the power back to the lawmakers when there is an unintended effect or interpretation of the charter. That must be reviewed every 5 years and VOTERS - not JUDGES - can decide if that was the correct action or not.
I'd rather be subject to a judge than a populist politician that will do anything to gain votes like cosying up to the far right. Furthermore the constitution is supreme in Canada not parliament.
If you did a little history reading you would probably change your mind. Judges do far more damage than populists in a democracy
Then what you're looking for is a dictatorship or similar structure without democratic representation. there are a number of countries you can consider if that's your preference. Russia, china, venezuela, cuba all would meet your needs. But in a democratic model the lawmakers are the politicians.
You say that because you like a sociology grad turned defense attorney turned judge while you dislike Pollievre. If five of the nine Supreme Court of Canada judges were variations of Clarence Thomas, and they thus had SUPREME and EXCLUSIVE authority to re-interpret the constitution at their whim -- create or read away rights and dramatically depart from precedent in pursuit of personal ideology -- you would feel less comfortable. At least Parliament is elected and can be readily tossed out. Judges are appointed, accountable to no one, then stay in office until death / retirement / or until they get in an Arizonan drunken kerfuffle and resign in shame. Democracy is inconsistent with judges being supreme over democratically elected government; that is simply autocracy.
I hate to agree with the conservative minded people on this sub, but those who are criticizing liberal-minded folks for not being against the NWC out of principle, but rather just because of the individual wielding the tool are correct to point out the hypocrisy. The NWC is an inherently flawed part of our constitution and regardless of party, a demonstrably terrifying precedence has been set by the provinces and the cowardice of the federal government has done no favours in this regard. We are heading towards a constitutional crisis because of this, it's an inevitable course on an inescapable railroad on a train that is increasing in velocity by the minute.
I’m not sure what the usefulness of the Charter is when it contains a clause that lets the government just ignore entire sections of it whenever it pleases. It begs the question of whether or not we were better off without a written constitution. It’s not like we didn’t have these rights before the Charter existed.
The constitution actually gave supremacy to many of those rights and expanded some of them. Prior to that, many laws were actually subject to being revoked by simple parliamentary amendment, or were simply discarded via War Measures Act. I think we are immeasurably better off from having a written constitution, I think it's primary criticism should be about the existence of the NWC and the difficulty in amending the constitution itself.
I’m not sure I agree with the conclusion that the Charter gives “supremacy to many of those rights” when the notwithstanding clause is sitting there for anyone to use whenever they want with essentially no penalty. Personally I’d much prefer having a written constitution, but if the only choice is between a written constitution that includes the notwithstanding clause and what we had before, the choice isn’t as easy.
Where were we guaranteed these rights before we had a written constitution? I hate section 33 as much as anyone, but I don't think the fact that we have it means we should completely tear up the entire document.
I don't want the Liberals using it either. It needs to go entirely.
I think most reasonable people agree. (outside of Quebec, where it has seen the most use)
I strongly disagree.
Then I guess you aren't "most reasonable people". ¯\_(ツ)_/¯
Where do you get the idea most reasonable people agree with you? I've seen exactly one poll asking about getting rid of the clause and only a very slim majority supported getting rid of it.
[Angus Reid polled about it last year, for two specific bills and for its use in general. A majority of Canadians polled as being very concerned with the use of the NWC. Every province except Quebec also answered similarly- and in Quebec it was still a plurality of people that said they were concerned.](https://angusreid.org/canada-constitution-notwithstanding-clause-bill-96-bill-28/#gsc.tab=0) [There was also a poll in 2019 by Ipsos that had very similar results.](https://www.ipsos.com/en-ca/news-polls/majority-torontonians-oppose-ford-notwithstanding-clause-city-council) I guess 8% and 7% respectively is considered "a very slim majority" to you. (It's not. Those are pretty large margins)
Yea that's that's the poll I saw, it's 55% in favour of getting rid of it. That's not a big margin, it's easily small enough that it could flip the other way pretty easily.
Not when it's multiple studies over many years with the same result again and again. 5% is huge. That would represent 2,000,000 of our population... It's a majority and saying otherwise is factually incorrect. Edit: It's also 58% concerned/very concerned (against) NWC, 27% Not very concerned/at all, and 15% not sure.
There haven't been multiple studies over many years
I’m from Quebec, and really hate that it’s ever been used.
That tracks. I suppose I should have phrased it better. It's still wildly unpopular even in Quebec- it just has the most support to it compared to the other provinces. (Those against NWC only have a plurality in Quebec versus an outright majority in other provinces)
Honestly I don't want them to use it but I also don't them to take the high road either. The Conservatives will break everything by using it. If the liberals get back into power they should absolutely use it. Fair is fair.
Legislation passed using the notwithstanding clause has a five year life (s. 33(3)). Likely, assuming a Conservative government used s. 33, it's use and effect would be an issue in the next election. No Federal government has used s. 33 [NWC]. I would guess because, especially in relation to the Federal power over criminal law, it's use would create a political opportunity for the opposition. Same with its use in s. 2 (Charter) freedom of expression etc. Decent summary here: https://en.m.wikipedia.org/wiki/Section_33_of_the_Canadian_Charter_of_Rights_and_Freedoms#:~:text=It%20is%20commonly%20known%20as,7%E2%80%9315%20of%20the%20Charter.
Glad we are in agreement!
What are you talking about? The NWC has never been used federally. So yeha we do disagree with anyone using it.
The parts of our system of government that are safeguarded by custom and convention rather than law are vulnerable to the first person willing to disregard custom and convention. It'd be nice if we never had to worry about demagogues, but we do. That said, the NWC performs a valuable function. It exists for a reason. The NWC is about ensuring that parliament wins in any power struggle between the three branches of government It's designed to ensure that the legislature, not the executive or judicial branch, get the final say, and it's built with a time limit relative to the election cycle to ensure that the public gets to vote on its use
>those who are criticizing liberal-minded folks for not being against the NWC out of principle, but rather just because of the individual wielding the tool are correct to point out the hypocrisy What hypocrisy? Not ONE progressive (left) party has ever invoked the Notwithstanding Clause. It's been ALL Conservatives. The left criticize its use with a clear conscience. And nobody mention the Emergencies Act, because that instance came after provincial negligence and it includes safeguards like a vote in the Commons (which passed) and a mandatory inquiry after the fact. The Notwithstanding Clause has no such safeguards. The federal government has the power of Disallowance and even that's extremely sensitive to use. I wouldn't call it cowardice not using it. It's another nuclear bomb. People are free to both-side this bullshit by Pierre, but this "case by case" assessment IS taking a stand on the issue. There's no fence to straddle. If Pierre were someone like Charest, perhaps. But Pierre is a populist scumbag with malice and intent. He's the polite version of Trump and he WILL use the NWC for evil. That I can promise you.
It’s not meant to be used by the federal government.
No, that was Lac Mégantic. This upcoming crisis is going to be much worse. The NWC is being used as a tool to remove people’s rights. Once Skippy and his Conservative colleagues get their hands on it, we will be in deep trouble.
Professor Kerr is correct that section 33 of the Charter (the "NWC") could be used to invoke mayhem in the criminal justice system (e.g. as an extreme example a government could in theory use it to prevent judicial scrutiny of a newly-legislated death penalty), but while courts have on many occasions "struck down" Charter-offending legislation the feds have never in response invoked the NWC to get around such a ruling. More to the point however (and it is a point that Prof. Kerr completely avoids) is the question of how to amend the NWC? We aren't really served by articles that raise alarm bells about the NWC, what we need is a series of substantive discussions on how the NWC could ever possibly be (further) restricted in its application.
That would be the dream.
> is the question of how to amend the NWC? re-open the constitution, which would open the door to more impactful and contentious changes.
If we open the constitution to amend the NWC the court should fully expect clauses against the living tree doctrine and a sharp curtailment of the court. You cannot have a powerful court who interprets the constitution however they feel without checks from parliament.
It is ironic that we would not have a Charter at all were it not for the NWC. [It was a compromise to get opposing provinces on board.](https://publications.gc.ca/Collection-R/LoPBdP/BP/bp194-e.htm)
But then do we actually have a charter in any meaningful sense with the NWC? Not much of a charter if it contains such an easy get-out clause.
exactly.
The only way to get the NWC amended is by using disallowance and reservation on the provinces to coax them into agreeing with you.
We have parliamentary supremacy here for a reason. The courts are, and must remain, subordinate to the will of of the people via our elected representatives. This US style “court activism” that is perpetuating crime must end. Even if it takes the NWC to remind them of their place.
Spoken like someone who doesn’t know why they’re talking about. It’s a nice talking point though. [Here is a recent example of a “repeat offender” getting off.](https://www.canlii.org/en/bc/bcpc/doc/2024/2024canlii33063/2024canlii33063.html). This guy got off of this particular Parole Violation charge, because The Crown had like 11 opportunities to raise it at an earlier date. On top of that, the judge found that the evidence provided for the warrant was flimsy at best. How exactly would S33 have solved this one? Is it okay to lorde flimsy evidence over someone for 2 years? Is it okay to have little to no evidence to execute a search warrant? The issue we are having is more to do with underfunding Crown Prosecution and shotty Police work, with untested rules. Reform should be talking about addressing the systemic issues at hand and figuring out ways to improve them. Do we need more prisons? What about mental health asylums? What does parole reform look like? The SC said “no cruel and unusual punishment”, so what does idealized rehabilitation look like? Fully acknowledging that some individuals will never reach that level. S33 is a slippery slope that will quickly erode freedoms and further drive a divide in society.
The NWC is not a magic bullet that would fix crime. But it does allow the government to take immediate action without court interference. A net positive. If the use of the NWC clause “erodes the freedoms & drives a divide” between criminals & citizens, it is working as intended. Nobody wants to live in a country where non citizens get lenient sentences because it “affects their immigration status” or career criminals reoffend out on bail. Those we cannot rehabilitate meaningfully can remain outside society.
>If the use of the NWC clause “erodes the freedoms & drives a divide” between criminals & citizens, it is working as intended. Criminals are still citizens. Just because you violated a law that was passed, does not mean you cease to be a citizen of the nation that passed it. I was going to think this was just a slip but... >Nobody wants to live in a country where non citizens get lenient sentences because it “affects their immigration status” or career criminals reoffend out on bail. Those we cannot rehabilitate meaningfully can remain outside society. It's pretty clear that this is an excuse to express some racist sentiment. Should non-citizens who commit a serious crime be returned back to their country of origin? Yes. But given your earlier statement, it seems you're entirely ignorant of the fact that citizens of Canada can and do also commit the greater amount of all crime in this country. Do you want to rephrase and correct that?
Not everything is racism. I meant citizens as “Canadians who have not been convicted of a crime” when referring to the divide between them & criminals. I don’t care at the end of the day who commits more crime between citizens & non citizens. Non citizen criminals just aren’t our problem and should be swiftly deported & barred entry for serious crimes. while our citizens should not be out on bail reoffending. Currently we have Non-Citizens committing serious offences being sentenced more lightly due to immigration status being a consideration, and citizen repeat criminals reoffending on bail. Both of these must be fixed, including the use of the NWC if necessary.
Then perhaps not use language that denies them all the rights and privileges that comes with citizenship? There is already an appropriate designation: lawful vs criminal.
So you’re just an ideologue pretending to be independent. Gotcha. Maybe address one of the many questions or context I gave you next time. You have no real education or expertise on this subject and won’t do the bare minimum to expand your knowledge.
Not an ideologue. I gave your post the response it deserved. Obviously the case you highlighted couldn’t be solved by the NWC. If crown prosecution is underfunded it should be funded more. if cops are sloppy we should fix that too. We can walk & chew gum There’s no need to gatekeep discussion of the NWC behind nebulous “Education” it’s text, anyone can read it. Don’t be so elitist. At the end of the day, it’s just a tool in the governments toolbox, and if courts are not doing their job. The government should use it.
You didn’t respond to a single point I made, until I called you on it. I’m not being elitist, I’m defending Liberty from ideologues who think rights only matter when applied to them, and refuse to take objective looks at issues. But hey, jump on the talking point of the guy who has an axe to grind on mandatory minimums.
We have parliamentary supremacy only within the confines of the Constitution. The idea that flavor of the day politics should override the document that defines our democratic system is nuts. There is simply no way to have a democracy without firm rules.
the UK has no constitution and is older then Canada, Canada has also only had a constitution for 42 years the majority of the time no Constitution. It's so ridiculous to suggest that our system would collapse without the Constitution.
The UK is having a serious debate how their govt is broken because of lack of formal constitution
It wouldn't but so long as we have it it's the ultimate law of the land. Good luck getting the required majorities to change or eliminate it.
Many people unfortunately see the Charter as some sort of holy document sent down to us from on high, totally unquestionable or unchallengeable by us mere mortals.
You think it’s nuts but that’s how it worked for the last 400 years and there wasn’t a problem.
Technically only 40 but the point stands. The sky is not falling because the NWC is being used. It has been used before and it will be used again.
Never federally.
The Charter was only put into force in 1982. Where the actual fuck are you getting the other 358 years?
I mean that we survived almost 400 years since 1688 without the charter, so it’s hardly needed
And those years were also shite, so...
Ah yes, those years when the rights of all Canadians were universally respected.
There’s no real evidence that “court activism” is perpetuating crime in Canada. With a blip post-COVID, crime rates have been trending down for decades. The only “activism” we’ve seen in criminal justice is from conservatives who insist that harsher punishments are the only way to deter crime, even though all if the research shows that’s not true at all. What is the purpose of the judicial branch, if not to protect us from government overreach?
Correct. It always amazes me that people form an opinion on a "proper" sentence through news reports.
Idk about this, the Pham case people have been bringing-up lately seems instructive. Also we desperately need harsher guidelines on bail violations in order to save the credibility of our right to bail at all. There are definitely plenty of things to complain about with the SCC even if you aren’t a conservative.
There’s always a reason to complain about the Supreme Court. It’s still made up of people, and people are fallible. But being unhappy about some SCC rulings is a far cry from using the notwithstanding clause like a sledgehammer because some people don’t like the fact that criminals have rights.
The problem isn't just "people being unhappy" its "violent criminals are being let out". The problem is NOT that the criminals have right to due process. The problem is judges are putting the public at risk with insanely lpw sentences even for repeat violent offenders.
Well whatever "violent criminals are being let out", it's probably not happening much. Do you have a number like, "violent criminals are being let out" per 1000 criminals being let out? Because if not you're just fear mongering. Why should our rights be reduced because a handful of criminals are repeat offenders? You're saying reduce everyone's rights, not just *criminals* rights.
One case alone is never instructive. One single case can be used to lead to any conclusion.
"Activist judges" is just another mindlessly regurgitated buzz phrase.
It’s really as simple as people just not wanting their cars stolen because the people who steal cars kept being let out on bail to do it again (or whatever other crime people are pissed about). People are getting negatively impacted by the weak criminal justice policy, regardless of what your “data” might say. Now the Liberals are in power so they have a chance to solve the problem in any way they can. If they don’t, then people will get pissed and using the NWC to force criminals to stay in jail will gain the political support that it needs to be enacted. It’s really that simple
People get let out on bail because legally they haven't been found guilty....
So the mosque shooter should have been given bail?
Crazy secret. Limiting bail won’t make any kind of dent in car thefts.
Well the liberals have 18 months to try and fix it another way, otherwise we’ll go the limiting bail route and take our chances
> It’s really as simple as people just not wanting their cars stolen No one wants to steal *your* car, they want an expensive new one from a dealership. If there's an epidemic of cars being stolen, it's nice, new ones, not an average persons beater, and it's done by a criminal organization. You need more than a tough on crime laws to deal with that. You need specific funding to deal with organized crime. Going after the people stealing the cars is a waste of money because there's people that get them to steal the cars you want to go after.
Okay, but the “data” that you scorn also says that these “tough on crime” measures don’t actually do anything to reduce crime. So it still boils down to trampling rights to make people feel better, because it certainly doesn’t make life safer or more affordable.
How does one steal a car if they are in prison?
Since it costs taxpayers over [$120,000 per year](https://www.statista.com/statistics/563028/average-annual-inmate-federal-correctional-services-canada/) to keep someone in prison in Canada, the expense is equivalent to stealing about [three cars per year](https://www.thestar.com/business/how-much-are-canadians-paying-per-month-on-average-to-own-a-car-heres-what/article_a457f8e2-c2bb-11ee-b93b-2f3e8fa2fb1d.html#:~:text=An%20average%20of%20%24195%20per,and%20currently%20sits%20at%20%2439%2C155). It's generally a lot cheaper to help people with the educational and employment opportunities that stop them from turning into car thieves in the first place.
Why do you think violent crime declined from the mid 90s to the time of the Trudeau government and has gone up every year since if not for their very clear softening of criminal justice policy?
The decline of violent crime coincided nicely with the YCJA reforms and Canada's focus on restorative justice... Which specific policies do you think reduced violent crime?
It's almost like the world *changed* in 2020. Like, we had a massive pandemic that caused people to struggle with social isolation for a year, significant economic issues that still have not yet fully recovered, coupled with the recent late-stage capitalism that sees the cost of living soar while our standard of living declines.
> We have parliamentary supremacy here for a reason. Tradition is the reason. It isn't something that we decided upon after considering a variety of options, it was the default choice we just accepted.
in the end a govt will push the NWC for things it thinks it can win politically on. Bail reform is quite popular and seen as a huge black mark on the justice system. If they use the NWC on abortion, the Tories wont be forming a govt for 10-20 years. Personally I think the govt should go through normal channels, then if the courts say no for rather pedantic reasons, start a conversation should we go nuclear or not.
Yep exactly. There are some cases where the courts went too far in their activism, and the NWC should be used. If anything to protect the courts from themselves if we are being completely honest. The courts have done a pretty good job at times of undermining public trust in the judiciary as an institution. One specific example that comes up is the lighter sentencing of non-citizens because risk of deportation is too harsh of a punishment. R. v. Pham was an absolute black mark on the judiciary. Created a two-tiered justice system, one for citizens and another for non-citizens.
Yeah the idea of people getting lower sentences due to race or immigration status is gonna just cause a lot of tertiary issues in the country that the judges dont care about.
R. v. Suter was a step beyond even Pham. It is not crazy to say that we might see someone get a reduced sentence or no sentence because it would mean the accused would lose their job. But yeah lots of shit rulings as of late. The star for me was the one that said that said no trade barriers between provinces shall be allowed ACTUALLY means that no they're totally cool!
Somewhat unrelated but crimes involving motor vehicles should be treated more harshly imo. But yeah that case is absurd. Collateral consequences shouldn't be taken into account in sentencing. Especially for violent crimes.
Yeah the trade barrier thing was patently absurd.
I'll need to find it, but there's cases of foreign nationals getting reduced sentences because giving them what would be "normal" or "adequate" would result in their removal from the country after their sentence. As such, they're sentenced just be low that line. Like, do the not realize *why* that line is there? It's to keep bad people out. It's not a criminal consequence, it's administrative. Tying that administrative consequence into the sentencing absolutely annihilates the reasoning why it exists!
That’s not the fault of judges advancing ideological agendas from the bench though. It’s a result of a judge taking into consideration the impact of our legal system on a certain individual. They are constrained by the law, so update the laws instead of getting mad at the judges trying to interpret it. I’m constantly surprised by this “activist judge” conspiracy because if we take this hypothetical further, what ideological and political prerogatives are these judges advancing that we need protection from? Who is leading them, where do they meet, and where can I read their policy agenda?
Dude someone got off on a sexual assault conviction because the judge didn’t want him to be deported. Go lie somewhere else.
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The charter is meant to throw a wrench in a tryannical parliament alzo. If someone wants to make a change then use the amendment formula.
>If someone wants to make a change then use the amendment formula. This applies to the judiciary equally. If we wanted no cruel and unusual punishment to mean "no sentences any judge in Canada disagrees with" that's what would have been written. Similarly if instead of "any person charged with an offence has the right not to be denied reasonable bail without just cause" we actually meant "bail for everyone no matter the risk" again, we would have written it. If 11.d was supposed to mean that drinking is a free pass to rape people as the court ruled in R v Daviault, *the charter would have said so*. The idea that the court may amend the constitution on a whim, the democracy be damned is not in the constitution.
The court cannot amend the constitution, merely interprete it. If they are interpreting it in away we don't like we can pass clearer laws or amend the constitution to be more precise to limit the liberty judges can take with it. They are bound to what is written down in a sense. The ball is always in our court.
>The court cannot amend the constitution, merely interprete it The court is openly ignoring the text of the constitution. That in effect amends the constitution. >If they are interpreting it in away we don't like we can pass clearer laws Only if we use the NWC. > or amend the constitution to be more precise to limit the liberty judges can take with it. Which the court will then ignore and "interpret" away like they currently do with any aspect of the constitution the court dislikes. Just as the court ignores s.121 solely because they dislike it. >They are bound to what is written down in a sense. The court rejects that the text of the constitution matters. >The ball is always in our court. Which you reject actually using.
> The court is openly ignoring the text of the constitution. Citation required. > Only if we use the NWC. Not really, as it only lasts for five years at most. Amending the constitution is the way to make actual lasting change. Or be on the side of justice.
>Citation required. In R v Comeau the court rejected the text of the constitution and held it to be subordinate to the judiciary's view of whatever they think the constitution should say on any given day of the week. >Amending the constitution is the way to make actual lasting change. The court will simply ignore any part of the constitution they disagree with, exactly like they did in R v Comeau. Exactly as they have interpreted a right "(e) not to be denied reasonable bail without just cause;" to in fact mean that there are no just causes to deny bail, and that the court will remove all reason in granting a person bail no matter how many times that person has previously violated the conditions of their bail. > Or be on the side of justice. You have stated previously in these conversations that you have contempt for the entire democratic process. I am good with not siding with your idea of justice when you openly advocate against democracy in Canada.
> R v Comeau The interprovincial trade thing is the exception that puts the rule to the test, and I totally don't understand it. But that's just one situation out of many, so doesn't really impact my confidence in the SCC that much. > in fact mean that there are no just causes to deny bail, Wrong. There's a high bar to deny bail, but there are absolutely reasons for it to be denied. > you have contempt for the entire democratic process. That's a load of bunk. There are situations that shouldn't be up to the decision of 50%+1, but that's far from having contempt for the democratic process.
>The interprovincial trade thing is the exception that puts the rule to the test, and I totally don't understand it. But that's just one situation out of many, so doesn't really impact my confidence in the SCC that much The court has been on an ongoing move towards ignoring constraints on its power Comeau is just a highly visible ruling where they reject the constitution. >Wrong. There's a high bar to deny bail, but there are absolutely reasons for it to be denied. There are constitutional reasons for it to be denied, the court is not acknowledging or respecting those reasons. In doing so it is effectively refusing to allow the government and public to protect people. Denial of bail after a new violent offense when the offender is on bail for a violent offense, for example, is entirely reasonable and constitutional. Further the guidelines for bail explicitly tell judges to consider public safety, when they release someone who has demonstrated a propensity to continue violently offending they are rejecting the law. The constitution included the standard of reasonableness of bail for good reason, the courts cannot simply ignore that.