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Howard Anglin: Today’s Supreme Court ruling is vindication for Doug Ford

Commentary

Like light from a far-off star bringing us images of the distant past, today’s Supreme Court of Canada decision takes us back to a more innocent time, when what passed for political controversy was a decision to reduce Toronto’s bloated city council from 47 to 25 members just as a city council election kicked off.

Ah, those prelapsarian summer days of 2018! Which of us wouldn’t happily return?

The real controversy, you will recall, the thing that elevated the matter from a routine provincial political controversy into a national talking point, was Ford’s willingness to use section 33 of the Charter of Rights and Freedoms to re-enact the law after it was initially struck down by the Ontario Superior Court. This, predictably, sent all the usual suspects into an ignorant tizzy.

It is one of the more curious aspects of Canadian politics that so many Laurentian luminaries, and Liberals in particular, who are supposed to be the party of the Charter, are so easily triggered by the invocation of section 33. Section 33, is after, all part of the Charter and it preserves at least a residue of the centuries-old democratic powers of our legislatures, including those powers essential to the the principle of Responsible Government.

I am honestly perplexed by this quintessentially American zeal for judicial supremacy within a group of people that is typically reserves the label “American-style” for its ultimate pejorative.

If it were a popular phenomenon, I would blame our abysmal record of civic education, but surely section 33’s high-profile opponents, which include many law professors and former elected officials, know that most of the countries who share our political system — not the U.K, not Australia, and not New Zealand — allow judges to strike down democratically enacted laws in the first place. Section 33 just preserves some of the legislative powers still enjoyed in full by our peer countries.

I am forced to conclude that the allergy to section 33 is part of a latent anti-democratic streak within Canadian liberalism that surfaces whenever a politician or party that is outside the Laurentian consensus has the temerity to win an election. It is part of the assumption by the Rosedale-Outremont axis that “we know best” combined with the sense that the sort of people who get appointed judges are part of that “we” in a way that a grubby provincial legislature may not be.

Ignorance or arrogance, it is a strangely persistent phenomenon that was on full display in 2018 when Doug Ford invoked section 33 to overcome a, shall we say, “novel” interpretation of the Charter by Judge Belobaba of the Ontario Superior Court to strike down the Better Local Government Act, 2018.

There may have been political reasons to oppose the Act, but in this case the judge’s rushed decision ignored two inescapable facts: municipalities, including the megacity of Toronto, are creatures of provincial law; and the political rights in section 3 of the Charter that the judge invoked to strike down the Act do not apply to municipal elections.

The court’s ruling was so constitutionally unorthodox that it’s hard to avoid the conclusion that, faced with the problem that the text of the Charter did not provide a reason to strike down the law, the judge simply decided to rewrite the relevant (or, rather, irrelevant) provisions.

As I wrote at the time: “This impression was reinforced by a smattering of injudicious asides, like his description of the government’s failure to respond to a relatively minor question as ‘Crickets’, and the snide observation that Bill 5 had been drafted ‘more out of pique than principle’ – a charge that could be applied equally to the judge’s opinion.”

When Ford proceeded to use section 33 to allow the Act to proceed over Judge Belobaba’s creative objections, the reaction of the commentariat was furious. But instead of directing their ire at the court that had warped and abused the Charter, these self-styled defenders of the Charter attacked the government that had twice exercised its clear constitutional powers: first in the original Act and then by invoking Section 33.

These fair-weather Charter champions continued to grumble even after the Ontario Court of Appeal overturned the obviously incorrect lower court decision, which obviated the province’s need to rely on section 33. Now, three years later, Ford’s government has been vindicated again as the Supreme Court of Canada has upheld the Ontario Court of Appeal’s decision.

The Court reaffirmed that section 3 does not apply to municipal elections (which is clear from the text) and that the rights contained in section 3 can’t be smuggled into section 2, which protects a completely different set of rights. For good measure, it also explained that unwritten principles of the constitution like “the principle of democracy,” which judges may divine lurking below the actual text cannot be used to invalidate laws.

This is as it always should have been.

Finally, the Supreme Court’s decision should put to rest the two misunderstandings that turned a piece of routine provincial law into a three-year legal odyssey. First, in light of today’s decision, there are limits to judicial creativity when it manipulates the text or relies on “unwritten principles” of the Charter to overturn democratically-enacted laws; second, the need for section 33 will remain strong for as long as courts don’t learn the first lesson.

Matt Spoke: Now is the time to make Canada a leader in bio-manufacturing

Commentary

Over the coming days, The Hub will publish mandate letters for the incoming cabinet ministers that set out a series of bold policy prescriptions that would cumulatively tilt Canadian politics towards a different and better future.

The best antidote to anger and frustration is aspiration and purpose. The campaign has demonstrated how urgently Canada’s body politic needs such a remedy. There’s no time to waste. It’s time to get to work.

Dear Minister of Innovation, Science and Economic Development,

I am honoured that you have agreed to serve Canadians as the Minister of Innovation, Science and Economic Development.

As you know, our government must have a both a short- and long-term orientation. The immediate priority is to help the country through the COVID-19 pandemic and to catalyse a post-pandemic recovery. Getting Canadian businesses and families to the other end of this crisis is the key to restoring stability and optimism in our economy and society.

Beyond that, though, over the long term, we face many opportunities and challenges including geopolitical instability, aging demographics, climate change, reconciliation with Indigenous peoples, long-term fiscal challenges, low productivity, and slow growth.

Each of these issues could easily consume a government’s attention, focus, and resources. But we do not have the luxury of prioritizing one or some of them. They require similar levels of energy and ambition if we are to lay the foundation for a different and better future for Canadians.

An emphasis on the future is a much-needed antidote to the growing anxiety and pessimism in our country. Even before the pandemic, too many Canadians worried that their children will not have the same opportunities and living standards as them. The pandemic has exacerbated these concerns and cast a pall of uncertainty over our economy and society.

In this context, Canadians have grown skeptical of the ability of government to put aside partisan differences or short-term political advantage and make the hard yet necessary choices to mitigate our long-term challenges and accentuate our opportunities. It is incumbent on us to prove to Canadians that their skepticism and doubt is unwarranted. We must rebuild their trust through our actions and choices.

This principle extends to all aspects of governance. Our government must live up to the highest ethical standards, including openness, honesty, and accountability. I expect you to reflect these values in your work. It is critical that we honour Canadians’ trust in us and the history and dignity of the institutions and roles that we occupy.

Our immediate policy priorities flow from the best ideas and rooted in evidence. I ask that you work with your colleagues to deliver on the following key priorities:

  • Lead the charge to reestablish Canada as a global leader in bio-manufacturing, particularly as it relates to our continued fight with COVID-19, by supporting Canadian scientists, researchers and post-secondary institutions with tools and resources to advance discoveries and commercialize products like vaccines and therapeutics. 
  • Work in close collaboration with the Canada Revenue Agency to determine the effectiveness of federal innovation programs like SR&ED and IRAP, and establish a strategy to streamline these programs with an emphasis on measurable outcomes that directly impact Canada’s economic growth and prosperity.
  • Work with the Minister of Finance and the Superintendent of Financial Institutions to establish a new Open Banking regime in Canada that encourages innovation and competition in our financial services sector, while protecting Canadian consumers from risk and systemic instability.
  • Recognizing the importance of competitive telecommunications pricing and the ubiquity of high speed internet access across the country, evaluate all tools at the federal government’s disposal to encourage innovation and competition in our telecommunications industry.
    • As it relates to rural internet connectivity, work with the minister responsible for rural economic development to establish a strategy that ensures broad affordable access to all Canadian communities before 2030, with an open mind towards new foreign direct investment focused on low-earth-orbit satellite internet.
    • Work with the minister of indigenous services to ensure an equal priority of access to indigenous communities and reserves.
  • Support the Parliamentary Budget Officer in completing a thorough analysis of the effectiveness of Canada’s innovation superclusters initiatives, and take immediate steps to redirect this funding towards industry-led initiatives that prioritize global commercial competitiveness by innovative Canadian companies. 
  • Encourage the growth of Canada’s venture capital sector, and reduce barriers to entry for foreign venture capital investors looking to invest in Canadian companies. 
    • Special tax provisions should be evaluated to incentivize the growth of Canada’s venture capital sector.
    • Tax and immigration policy should be evaluated to ensure there is no undue friction disincentivizing foreign venture capital investors from establishing a presence in Canada and investing in Canadian companies.
  • Evaluate the effectiveness of sovereign wealth funds that focus on innovation globally, and assemble an advisory board of industry leaders in the venture capital sector to determine whether this could be a viable strategy for Canada.
  • Recognizing the enormous positive impact immigrants have on our country’s competitiveness, work with the minister of immigration to:
    • Grow and enhance Canada’s Start-up Visa Program to establish Canada as the top destination for ambitious entrepreneurs to start global companies.
    • Grow Canada’s Global Skills Strategy to enable more Canadian employers to bring highly skilled immigrants to Canada on a fast track Visa program.
  • Recognizing the importance of housing affordability near industrial clusters and urban centres across the country, and to maintain Canada’s reputation as an attractive destination for the world’s brightest, work with the minister of infrastructure and communities, as well as provincial and municipal counterparts, to ensure that federal infrastructure funding is tied to commitments to increase the supply of affordable housing through additional density in designated growth centres.
  • As part of Canada’s climate plan:
    • Work with the minister of natural resources, the minister of the environment, and the minister of transport to reduce Canada’s dependence on higher risk domestic modes of transport for oil gas resources (i.e. trains and trucks), and support the development of state of the art pipeline infrastructure that meets Canada’s environmental standards.
    • Recognizing Canada’s relatively small contribution to global carbon emissions, lead the charge to establish Canada as a global leader in clean energy innovation, with an emphasis on technologies that can be exported to help reduce negative environmental practices globally. This should include a particular emphasis on the development of small modular nuclear reactor technology, a field in which Canada is already well positioned to lead.
  • Work with the minister for science and technology to address Canada’s “brain drain”, by specifically evaluating the federal subsidies tied to students’ education in STEM fields. Namely, implement a strategy that disincentivizes Canadian graduates from pursuing opportunities in the U.S., by tying federal education subsidies to requirements of contributing to the Canadian economy for 5 years post-graduation.
  • Work with the minister of Canadian heritage to recognize Canadian ingenuity and entrepreneurship, by celebrating Canadians who exemplify these characteristics. The focus should be on influencing Canadian popular culture to elevate entrepreneurs and celebrate their risk-taking in pursuit of progress. This could include an official recognition of National Entrepreneurs’ Day, and a national campaign to get Canadians excited about innovation in the coming decade.

I know I can count on you to fulfill these responsibilities and help to deliver a different and better future rooted in prosperity and opportunity for all Canadians.