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Transnational Thursday for May 9, 2024

Transnational Thursday is a thread for people to discuss international news, foreign policy or international relations history. Feel free as well to drop in with coverage of countries you’re interested in, talk about ongoing dynamics like the wars in Israel or Ukraine, or even just whatever you’re reading.

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Short attempt to explain an upcoming Canadian constitutional snafu

I'll try for brevity here. If you see any Canadian news showing up in your feed you might be aware there's been some wrangling over the "Notwithstanding Clause." This is the clause in the Canadian constitution that essentially allows the invoker (either a provincial government or the feds) to override court challenges to legislation except for stuff related to the basic functioning of democracy (like how elections are conducted). Outside of Québec the NWC has rarely been used at the provincial level and never at the federal level. It was included as a compromise in the 1982 constitution, and has historically been treated as an Option-of-Last-Resort when it came to disagreements between the provinces and the feds. It expires after five years of invoking which theoretically means it can only be used with popular support.

The structure of Canada's institutions were meant to mimic the United Kingdom's: parliament is supposed to reign supreme. Courts and the judiciary were meant to be deferential to the will of legislatures, and likewise legislatures were meant to honour the spirit of the broad constitutional principles embodied by the Charter. As many of you might suspect however, over time there has been some element of judicial creep, with the judiciary finding more and more things to be unconstitutional. Federal laws against abortion and gay marriage were struck down by Charter challenges (in each case I think correctly), but somewhat more speciously you have things like restrictions on public drug use or simple math tests for prospective teachers being declared unconstitutional. I know people around here might cynically think this is being done exclusively for progressive causes and while I think there is an undeniable slant among the judiciary you also have things like the courts deeming the measures taken against the trucker COVID protests unconstitutional.

More coherently the principle underlying the general trend is this: the judiciary wants more discretionary powers for itself. It does not want governments to dictate to judges the limits of their powers or decision-making. And where this is really drawing things into conflict is with respect to criminal justice. To give a non-culture war example, the previous Conservative government amended the Criminal Code to require consecutive life sentences be given for mass murderers; i.e. if you committed multiple first-degree homicides your eligibility for parole would not be after 25 years as normal but rather 50+ years (depending on the extent of your crimes). This was struck down on appeal on the grounds that this was "cruel and unusual punishment", on behalf of a man who had murdered six Muslims at a mosque in a mass shooting (not exactly a progressive hero, but now eligible for parole in 2039). Similarly the ability to hold potentially at-risk criminals without bail or severe bail conditions has been very limited, and a wide raft of possible contingencies for sentencing have been essentially mandated by court challenges. You might be familiar with "Gladue" reports (essentially lighter sentencing for indigenous offenders), but this has also resulted in bizarre sentencing decisions for immigrants who would risk deportation otherwise.

Almost-certain future PM Pierre Poilievre has made some waves by suggesting he would use it federally to override challenges to stronger criminal justice laws. This forthcoming showdown seems to be inevitable given the increased intransigence of both the judiciary and politicians: anger and confusion with these court appeals is not limited to conservatives and support for harsher sentencing is very strong. The original purpose of the Notwithstanding Clause was not as a means to reinforce parliamentary supremacy, but the expanded scope of court appeals has given it a new role in this context. The judiciary has badly overplayed their hand if they thought the political cost of using it would enable them to expand their reach without opposition.