— Musings —09.19.2018 09:56 AM
Notwithstanding, stayed
I’m happy. A smaller Toronto city council isn’t a bad thing. And the notwithstanding clause dropping off the table is a very good thing. #Topoli #onpoli #Cdnpoli
— Warren Kinsella (@kinsellawarren) September 19, 2018
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agreed… I don’t like what DF is doing, but the initial court decision was really reaching IMHO. It is also good that the Charter / NWC stuff is off the table. That debate was going to lead to an epic level of foolishness for both sides.
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You would have thought that his Harper handlers would have been more on their game after 9 yrs in power. Instead of just appealing the decision and getting the win, he went straight to the bully pulpit and promised to keep doing it in the future. You need to work a lot closer with these guys, that was a rookie mistake.
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I disagree with Warren on lots of things, but I give him full credit for not being swept up by the Charter-mania of the progressive side. What in the world would lead anyone to think the size of a municipal council is a fundamental right our legislators should be denied, even if only during an election, or Lent or the Christmas holidays or whatever? I’m a lawyer and the decision appealed from was the craziest thing I have ever seen and it had no shortage of competition.
I’m not a big Charter fan, but those who are should reflect on the tensions between judicial fiat based on the Charter and electoral democracy. They should choose their battles much more wisely than we’ve seen this past week.
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Framing that as a freedom of speech matter was textbook judicial overreach. Also a demonstration of the tendency of certain progressives to want to frame EVERYTHING as a Charter issue.
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A good slapdown of a judge who should be removed.
And a vindication of Premier Ford’s use of the Notwithstanding Clause.
This should be a learning moment for the progressive left – the constitution, as flawed as it is, still has some strength in the courts.
Hopefully it will stimulate a discussion about how we vet and appoint judges.
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It shows Premier Ford’s use of the notwithstanding clause was a total waste of time and exposed that the Conservative Party don’t care about the Charter or the courts, both vastly more respected institutions then any party or politician.
Decades from now when kids read about this incident in the history books, they will think twice about voting for The People’s Conservative Party.
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Don’t care about the Charter or the courts.
They were using a tool provided to them by the Charter.
There was no Charter rights violation as Belobaba’s ruling over-reached essentially creating his own non-existent Charter section to justify his ruling.
He used the Notwithstanding Clause because of a time crunch unsure the Appeals Court would be able to hear the case for a stay in time and because it is there to challange judicial over-reach.
A time crunch I grant you was entirely his own making.
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Oh yes, it ranks right up there with the residential schools and the internment of Japanese-Canadians on the list of historical outrages. Don’t you think our kids find Canadian history boring enough without condemning them to study this as a transformational moment?
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Everyone is making the assumption that the ruling would have been overturned. Interesting I never heard or read any progressives – including you, warren – saying that. Premier Ford didn’t know that either and acted accordingly.
Kids and all Canadians should learn more about the very significant – ultimately ruinous IMO – flaws in the constitution and the courts. Less respect for both would be a good thing.
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It wasn’t overturned, Gord. It was stayed. Look it up.
Cheap shots aren’t needed here. I’m not paid to do this. If you start that up again, you will be banned again.
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Less respect should be shown for the constitution? You are a true authoritarian aren’t you? Sigh.
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I’ve heard of vexatious lawsuits and activist judges, but now we have “vexatious judgments” – where the make a frivolous decision they now will be overturned, just to punish the political side they disagree with.
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They were pretty clear in their 3 – 0 ruling they believe the government will win the appeal:
“The question for the courts is not whether Bill 5 is unfair but whether it is unconstitutional. On that crucial question, we have
concluded that there is a strong likelihood that application judge erred in law and that the Attorney General’s appeal to this court will succeed.
[12] The application judge’s interpretation appears to stretch both the wording and the purpose of s. 2(b) beyond the limits of that provision. His decision blurs the demarcation between two distinct provisions of the Charter: the protection of expressive activity in s.2(b) and the s. 3 guarantee of the democratic rights of citizens to vote and be qualified for office.”
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You are technically correct, but this kind of interim stay of a decision (delivered unanimously in less than a day) is rare and is a clear indication of what the Court thinks of the original decision. If you are thinking of betting that the full Court will overturn it, I suggest you insist on long odds.
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Would the appeal have been heard so quickly if NWS were not in play?
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Probably. The urgency was created by the election, not s. 33.
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Stupid question:
Will the same panel of judges who delivered the decision today hear the appeal or will it be whomever is available at the time?