Dodek: It’s time for the Supreme Court, and the federal government, to stand up for the Charter

2023/01/06 Leave a comment

Valid critique:

The Liberals used to be the party of the Canadian Charter of Rights and Freedoms. Now, under Prime Minister Justin Trudeau, they risk being the party that leads to the Charter’s decline.

Over the past five years, the political taboo over the use of the notwithstanding clause, which allows governments to override some Charter rights, has been shattered across Canada. This occurred not under former prime minister Stephen Harper, a Conservative who was the favourite lightning rod of Liberal Charter enthusiasts, but under the current Liberal stewardship of Mr. Trudeau.

When Ontario Premier Doug Ford threatened to use the notwithstanding clause in the fall of 2018, as part of a plan to shrink the size of the Toronto City Council in the midst of the provincial election, the Prime Minister did nothing. (Ultimately, Mr. Ford did not use the clause in that instance.)

The next year, Quebec Premier François Legault went ahead with using the notwithstanding clause to insulate Bill 21, which bans certain provincial government employees from wearing religious symbols at work. In 2021, Mr. Ford also used the clause for a law limiting third-party election spending. In both cases, Mr. Trudeau again did nothing.

Earlier this year, the Quebec government used the notwithstanding clause once more, this time to push through Bill 96, its new language law. Yet again, the Prime Minister took no action, though he has said that the federal government would intervene in a legal challenge to Bill 21 at the Supreme Court of Canada.

“This is a matter that matters to all Canadians, regardless of which part of the country they live in,” Mr. Trudeau said in May, when asked if Ottawa would involve itself in the Bill 21 challenge. “This government will continue to be here to defend people’s fundamental rights and freedoms.”

I doubt those whose rights have been threatened or stripped away by legislation in Quebec and Ontario find much comfort in the Prime Minister’s vague and banal words. They won’t help the Muslim women in Quebec who have lost their jobs because they wear a hijabas a declaration of their faith. They won’t help non-native French speakers who are barred from speaking another language at work.

While the Ontario government pledged to repeal its most recent use of the clause (as part of Bill 28, which made it illegal for unionized education workers to go on strike), Canadians should still be concerned about the increased use of this clause by provincial governments.

Mr. Trudeau could act right now if he wanted to. If he has the political courage to do so, the Prime Minister could initiate a reference to the Supreme Court challenging the pre-emptive use of the notwithstanding clause in Quebec and Ontario. He could send some of the best legal talent in the country from the Department of Justice down the street to the high court to stand up for the minority rights of Canadians.

Crucially, Ottawa could argue that the Supreme Court should revisit its 1988 Ford v. Quebec (Attorney-General) decision, which gave governments the carte-blanche ability to use the notwithstanding clause.

Supreme Court decisions are not cast in stone. Much has changed in the three decades since it first ruled on the use of the notwithstanding clause, which authorized its use both in reaction to court decisions striking down laws as violations of the Charter, as well as its pre-emptive use in advance of any such legal challenges.

The rights and provisions set out in the Charter do not define themselves. It is the task of the courts, especially the Supreme Court, to interpret its contents. The political leaders who debated and enacted the Charter knew full well that they would be giving this awesome responsibility to the courts.

Between 1980 and 1981, a special joint committee of the Senate and the House of Commons spent more than 150 hours hearing from Canadians about the draft Charter. The legislators on this committee were warned that the enactment of a constitutionally-entrenched bill of rights such as the Charter would make the courts responsible for its interpretation.

The 1988 Ford decision dates to the early years of Charter interpretation. It is part of the first generation of Charter cases. The high court’s interpretation of Charter rights ebbs and flows over time.

A favourite metaphor among Canadian constitutional lawyers and academics is the idea that our Constitution is a “living tree” – one that is capable of growth and expansion within its natural limits. Sometimes, the Constitution needs to be pruned back. In other cases, the courts or governments go too far – in recent years, both have done so on sanctioning and using the notwithstanding clause.

The time is ripe for Canada’s highest court to revisit its 34-year-old decision. It is also long overdue for some strong federal leadership to defend the Charter rights of Canadians.

Adam Dodek is a law professor at the University of Ottawa and author of the book, The Canadian Constitution.

Source: It’s time for the Supreme Court, and the federal government, to stand up for the Charter

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Dodek: Mispronouncing names isn’t okay, and it has nothing to do with being ‘woke’

2022/06/10 Leave a comment

Agreed. Wonder how the citizenship judges and staff manage to ensure this:

Trouble has hit Canada’s largest law society. Each year the Law Society of Ontario welcomes several thousand new lawyers into its ranks. The new barristers and solicitors don lawyer’s black robes for the first time in a ceremony that dates back more than 200 years. For each new lawyer and their family, the highlight is when they ascend the stage. Their name is called out and projected on the screen as they walk across the stage. Sometimes their name is mispronounced. That’s wrong and every step should be taken to make sure that doesn’t happen.

To its credit, staff at the Law Society of Ontario have recognized that they need to do better. In a report to the Law Society’s governors – still archaically called “benchers” because once upon a time they would sit on benches – Law Society staff recommended hiring a professional name reader for these “call to the bar” ceremonies.

The policy rationale is straightforward. As the legal profession has become more diverse, so too has the list of candidate names being called to the bar. A lot has changed since John White, Robert Gray, Bartholomew Beardsley, and seven other white men were called to the bar in 1797.

Each new lawyer’s name is called out by a bencher. Despite its best efforts, each year the Law Society receives complaints from disappointed candidates about their names being mispronounced. For some, having their name mispronounced is embarrassing to them and to their families who attend this momentous event. This is understandable, regrettable and completely avoidable.

Hiring a professional name reader would, well, professionalize the process. Who can be against progress and professionalization? Apparently, some of the benchers, that’s who. Last month, they brought a motion to ensure that names continue to be announced only by benchers, on the grounds of, among other reasons, opposing “whacky wokism.” The opposition and the rationale are self-centred and wrong. Fortunately, the motion was defeated.

There are few things more important than one’s name. It reflects one’s identity, individuality and human dignity. That’s why international human rights instruments have long recognized the right to a name, the right to choose one’s name and the right to retain one’s name. Enslaved people often did not have the right to choose their name. Oppressive regimes often target people because of their names. And here in Canada at residential schools, Indigenous children were stripped of their Indigenous names and given Christian names in their place.

I have a last name that is sometimes mispronounced but what sticks in my mind is something that occurred in my first year of high school in Vancouver in 1983. On the first day of school, our shop class teacher read out the roll and after each name quipped: “Canadian, Jew, Indian, Chinaman …” The message could not have been clearer to this multicultural group of 13-year-olds: for some people, there were still insiders and outsiders and your name gave you away.

In Canada, many immigrants changed their names in order to better assimilate into Canadian society. Others did not. Conservative prime minister John Diefenbaker became a lifelong champion of civil rights, in part because of his childhood experience of being mocked and harassed for having a German name.

As dean of the University of Ottawa’s Faculty of Law, I had the responsibility and the honour of reading the names of each of the more than 350 graduates every year. I worked hard to practise the names. I got the phonetic pronunciations and even had a pronunciation coach. When I read out a graduate’s name and they walked across the stage and had their 10 seconds in the limelight, I envisioned all the hard work that they and their family had done to reach that day.

I will never forget some parents thanking me for pronouncing their family’s name correctly. “No one has ever pronounced our name right before.” It made me tear up and it also made me proud. For me and for them.

I was good at some types of names and not so good with others. I realized and regretted making mistakes. I know I could have done better but perhaps even more importantly, I know the university could have done better than me. I may be many things, but a professional name caller I am not.

We owe it to everyone to get their names right. It’s not about political correctness or wokeness. There are a lot of reasons why but at the end of the day, it just comes down to one: respect.

Source: Mispronouncing names isn’t okay, and it has nothing to do with being ‘woke’

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Can the Liberals resist omnibus bills? – Adam Dodek

2016/04/05 Leave a comment

Will be an early test of the Liberal government and more independent Senators (and the Senate):

Until recently, budget bills were a rather drab affair. Parliamentary expert Ned Franks found that between 1995 and 2000, the average length of budget bills was 12 pages. In 1994, Reform MP Stephen Harper complained about the omnibus nature of the Liberal government’s budget implementation bill, which was 24 pages.

Omnibudget bills began under the minority government of Prime Minister Paul Martin with bills of more than 100 pages and grew to mammoth proportions under Prime Minister Harper: The most egregious topped 800 pages. The Harper government went beyond the accepted understanding of an omnibus bill by tacking on subjects to its budget bills that had nothing to do with the budgets (such as changing the Supreme Court Act in the face of the challenge to the government’s nomination of Marc Nadon in 2013).

These bills are an affront to parliamentary democracy because they prevent the House and the Senate from doing their job to adequately scrutinize legislation. The bills arguably infringe on the privileges of individual MPs, despite rulings to the contrary by successive speakers of the House. Instead of standing up for the rights and responsibilities of individual parliamentarians, successive speakers have allowed omnibus bills to persist and grow to offensive proportions.

Fortunately, unlike many other desperately needed democratic reforms, fixing omnibus bills is relatively easy: It doesn’t require a constitutional amendment, a referendum or even a law. All that is required is for the government to take the initiative and change the House of Commons rules of procedure to restrict the use of omnibus bills.

That’s the easy answer. But there is also a brave solution and a bold one as well.

The brave solution would be for a speaker to stand up for the rights of parliamentarians and draw a line in the sand at omnibudget bills and rule them out of order. The bold solution would be for a newly independent Senate to assert its independence and refuse to consider omnibus House legislation that cannot be properly scrutinized. I doubt that is the sort of independence the Trudeau government desires from a reformed Senate. However, it may be reason enough to spur the government into acting, sooner rather than later.

Source: Can the Liberals resist omnibus bills? – The Globe and Mail

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