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Old Posted Oct 3, 2018, 2:46 AM
saffronleaf saffronleaf is offline
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The Notwithstanding Clause

Recently, Doug Ford used / proposed to use the notwithstanding clause in order to reduce the size of Toronto's city council and redraw city wards amid city elections in Toronto. (see: https://www.cbc.ca/news/opinion/doug...ding-1.4821302)

More recently, the new Quebec premier proposes to use the notwithstanding clause in order to ban public servants from wearing certain religious symbols (it is unclear which ones will make the list, but the hijab and kippah seem to be on it). (see: https://www.theglobeandmail.com/cana...quebec-public/)

These are Canada's most populous provinces, collectively accounting for more than 60% of the country's population.

What are your thoughts on the notwithstanding clause and the recent uptick in provinces invoking or proposing to invoke it?
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  #2  
Old Posted Oct 3, 2018, 3:14 AM
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  #3  
Old Posted Oct 3, 2018, 3:15 AM
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Some politicians appear not to understand the clause' limitations. Legault plans to abolish school boards in Quebec; many have noted that doing this for English language schools would probably violate the Charter right of anglophone Quebecers to minority language education, as similar case laws in other provinces have established that minority language education rights include the right to have their own school boards. Legault said he would use the notwithstanding clause on this topic, which is nonsensical.. the notwithstanding clause cannot apply to any of the language rights sections of the Charter (it can only apply to Section 2 and Sections 7 through 15).
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Old Posted Oct 3, 2018, 3:40 AM
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What the courts said is that linguistic minorities have the right to manage their own schools. This does not require school boards. A division in the education ministry staffed by people from the anglo minority could suffice.
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Old Posted Oct 3, 2018, 4:51 AM
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They need to get rid of that darn thing. Our Charter should be sacred.
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Old Posted Oct 3, 2018, 4:54 AM
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Originally Posted by saffronleaf View Post
These are Canada's most populist provinces, collectively accounting for more than 60% of the country's population.
Fixed that for you.
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Old Posted Oct 3, 2018, 10:08 AM
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To me it reflects a difference in our understanding of where the greatest power lies in our federation. You have people who believe it is with elected representatives, and people who believe it is with the courts.

In Newfoundland and Labrador, the dominant view is that the courts have the final say - so despite our populism, nationalism, and all the rest, the notwithstanding clause doesn't really come up here.

For example, I remember asking former Premier Danny Williams' administration if they would enact marriage equality (at this point most provinces already had, I believe 7 of them), and they were entirely supportive, all of the necessary work to prepare was done, and they were just waiting for the courts to rule. That case came in 2004, when two lesbian couples sued after they had been denied marriage licenses. The Provincial Government announced it would not contest the suit, the Judge only took a day to rule, marriage equality was legalized and immediately implemented. First same-sex wedding was a couple of days later. We also didn't skirt around forcing people to do their jobs or resign. Any civil marriage commissioners, including mayors, were required to perform same-sex weddings or resign - because that's what the court said.

So the notwithstanding clause, to me, should just be done away with. It's a pacifier for regressive governments who overstep their bounds.
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  #8  
Old Posted Oct 3, 2018, 11:17 AM
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Fixed that for you.
And I'll be fixing that for you to add Alberta to the top of the list after your provincial election
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  #9  
Old Posted Oct 3, 2018, 11:21 AM
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Originally Posted by SignalHillHiker View Post
So the notwithstanding clause, to me, should just be done away with.
Logically though, you've got to admit that any province that didn't sign the current Constitution should have an inherent right to use this clause to escape a document that doesn't concern them.

(And even for the other provinces, I'm not even sure I can agree with you even in those cases, given the Clause was part of the deal, and put there for a reason. You can't be sure the provinces who were on board would've agreed to the deal had it not be there.)
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  #10  
Old Posted Oct 3, 2018, 11:32 AM
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Originally Posted by Acajack View Post
What the courts said is that linguistic minorities have the right to manage their own schools. This does not require school boards. A division in the education ministry staffed by people from the anglo minority could suffice.
Nova Scotia recently eliminated all anglophone school boards in favour of oversight by the Department of Education (and chaos ensued - especially for school bussing).

Because of constitutional obligations, the 5% francophone minority in the province retained their school board. The francophone minority threatened to use the courts to defend their rights.

LeGault obviously wants to go where the NS government feared to tread.
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  #11  
Old Posted Oct 3, 2018, 11:42 AM
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Abolishing school boards shouldn't be controversial. No one votes in school elections.

We don't vote for who gets to be the administrators of our local hospitals, why aren't we also clamoring for that, if it's such a good idea?
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  #12  
Old Posted Oct 3, 2018, 12:00 PM
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Abolishing school boards shouldn't be controversial. No one votes in school elections.
School boards in the Maritimes are elected. They are viewed as one of the first stepping stones for people wishing to serve in public office.

The NS school board positions were well paid, and the board members were getting uppity. The Minister of Education and the Premier were displeased with their independence, which is why they were abolished - to maintain political control........

In NB, a percentage of the membership of the regional health boards were also elected. Again, this was politically uncomfortable for the government of the day and these positions were abolished. All board members are currently appointed. Curiously, physicians are explicitly forbidden from serving on the regional health boards.

Who says that Canada is a democracy????
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  #13  
Old Posted Oct 3, 2018, 12:24 PM
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Originally Posted by MonctonRad View Post
Who says that Canada is a democracy????
It is - we elect, every few years, the people who will be in charge of our education and healthcare for the next little while.

To have additional education- and healthcare-specific elections seems redundant. Whenever we're not liking how it's going with those, the remedy is already to elect a different crew next time.
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  #14  
Old Posted Oct 3, 2018, 12:36 PM
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The Notwithstanding Clause was the great fudge to get the provinces on side during Constitutional wrangling in the 1980s.

In a sense it makes the Canadian constitution a product of its time - a very late 20th century document - because it allows an exception for allowing legislation that contravenes the Charter to be legislated. In my opinion, the notwithstanding clause is one of the flaws in the document, along with the initial statement of:

"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"

Whereas the United States Constitution is much more firm on the topic. That document doesn't have an exception for unconstitutional laws. That document if the product of 18th century liberalism - much more idealistic and principled. It has its own flaws to be certain, but isn't wishy-washy on the topic of rights.
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Old Posted Oct 3, 2018, 12:53 PM
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Originally Posted by MonctonRad View Post

Who says that Canada is a democracy????
Democracy is a sliding scale.

Canada - while still having strong democratic traditions - is more authoritarian than the United States or Switzerland. Once we empower a government through an election, we give them a fairly large 'carte blanche' to implement their legislative agenda (provided a majority government is in power).

This is both a good and bad thing. It is a good thing if you like decisiveness for government to implement its agenda. It is a bad thing is you're opposed to the government's agenda.

Conversely, implementing legislation at the federal level in the United States is a nightmare, as their system was designed to inhibit legislation. Passing a law requires two elected bodies (Senate and the House) and the President to be on the same page. So, a bill about education will have stuff for corn farmers in Iowa as part of compromise process.

So, as much as people down there would like to reform the system to minimize the impact of lobbying and speed the legislative process, the sheer number of representatives involved (and weak party discipline) means that lobbyists can always find a sympathetic ear for their cause somewhere in the process.

Pick your poison. More democracy = more compromises. Too much democracy = gridlock in the legislative process. We all know the downsides of authoritarianism too.
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Old Posted Oct 3, 2018, 12:54 PM
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Originally Posted by lio45 View Post
It is - we elect, every few years, the people who will be in charge of our education and healthcare for the next little while.

To have additional education- and healthcare-specific elections seems redundant. Whenever we're not liking how it's going with those, the remedy is already to elect a different crew next time.
All politics is local.

People are very attached to their local schools and to their local hospitals. Often, problems that arise are very location specific, and local governance is all that is required to monitor and remediate the situation. This doesn't necessarily require the oversight of a provincial bureaucrat 800 km away.

Local governance can allow specific problems to be dealt with in different specific ways, and can be much more nimble and responsive. The provincial bureaucracy on the other hand is more concerned with developing province wide solutions which, on the local level, can often seem heavy handed and tone deaf.

School and health boards, like local municipal government are close to the people. In many ways, this is the best type of democracy.
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  #17  
Old Posted Oct 3, 2018, 1:00 PM
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Originally Posted by isaidso View Post
They need to get rid of that darn thing. Our Charter should be sacred.
That clause will probably never be removed from the Constitution. Not because it's necessarily good (or bad), just because our Constitution in 1982 was made extremely hard to amend. At least in a whole bunch of its provisions.

I believe the stuff about God and the monarchy is also virtually impossible to change.
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  #18  
Old Posted Oct 3, 2018, 1:04 PM
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School boards in the Maritimes are elected. They are viewed as one of the first stepping stones for people wishing to serve in public office.
I don't know how well paid school board trustees are in Quebec but these are elected paid positions here too. It's just that only 4% (maybe less?) of voters actually go out to vote for their elections.

In all honesty it would be better if Quebec did like Ontario and had school board elections at the same time as municipal ones.

But in Quebec the school board elections AFAIK are always on a separate date.

Interestingly enough, Quebec's anglo community has a higher voter turnout rate for school board elections (though I think it's in the range of 15-25%). I suppose that's because voting for anglo school boards is an element of anglo-community-specific democratic life that they don't have very often - for many of them even the vote for city councillors is dominated by francophone candidates, and even the anglophone candidates "operate" mostly in French in that environment.

So I'd expect the anglo community to fight this tooth and nail - I believe they've made their position clear in the past, and will likely go all the way to the Supreme Court if they have to.
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Old Posted Oct 3, 2018, 1:08 PM
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Originally Posted by MonctonRad View Post
All board members are currently appointed. Curiously, physicians are explicitly forbidden from serving on the regional health boards.

Who says that Canada is a democracy????
I am not familiar enough with the pros and cons to pass judgement, but I suppose some would argue that physicians serving on these boards would be in a conflict of interest? I suppose that's the rationale for excluding them.
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Old Posted Oct 3, 2018, 1:13 PM
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Fixed that for you.
They are far from populist, are you kidding me lol, particularly Ontario. Populism in this province is a reaction to the psycho-leftist extremism of the Wynne government. If she had been a centrist we'd never have changed but the amount of fiscal waste was too unbareable for many. Ontario is a socially left of center and fiscally centrist province. Deviate too much from that and any party will get clobbered at the polls.
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