Like The Hub?
Join our community.
Join

Howard Anglin: Abandoning the Notwithstanding clause won’t save us from politics, but it will make our rulers less accountable

Commentary

One of medieval Europe’s most peculiar folk beliefs was that, under pressure, a beaver will chew off its own testicles. For some reason, this legend comes to mind a lot these days. The most recent prompt was an article by Andrew Potter, one of our most thoughtful and percipient thinkers, that called on the federal parliament to repudiate the use of the Notwithstanding clause “always and everywhere, no matter the province, no matter the government, no matter the reason.”

He’s hardly the first. In the 2006 federal election, a desperate Paul Martin unsuccessfully tried to wedge Stephen Harper by pledging never to use the clause. Before that, in the throes of Meech Lake negotiations, Brian Mulroney criticized it as “that major fatal flaw of 1981.” That was all political grandstanding. No one really doubted that, faced with a court decision that truly offended national sensibilities or obstructed essential public policy both leaders would have gratefully reached for section 33 of the Charter.

For parliament to renounce the use of section 33, even symbolically, would be an extraordinary act. It would be an admission by our elected representatives that, spavined by responsibility, they no longer trust themselves or the people who elected them to decide contentious political questions, or even which questions are so contentious that they should be spared the work of resolving them. Extraordinary, but perhaps not surprising. Parliamentary democracy in Canada has been moribund for some time—surrendering its last vestige of authority, the last reminder of what it was like to be a governing body, would probably come as a relief.

The catalyst for the current wave of democraphobia is the case of Fatameh Anvari, the Grade 3 teacher removed from a Quebec public school classroom because she was wearing the hijab, which is prohibited under provincial law. I can understand why frustration with the government of Quebec has spilled over into frustration with section 33, which the government used to shield the law from constitutional review, but the confusion reflects a short-sighted view of law and politics. It also misunderstands of the role of section 33 in mediating between them.

The old saying is that hard cases make bad law. Apparently easy ones do too, if you are really prepared to throw out the idea of self-government over a single offensive law. If you are willing to hand final policymaking power to judges in all cases “always and everywhere … no matter the reason” over one instance of injustice, then what will you say in the face of a manifestly unjust or irrational judicial decision? By the same logic, you should abjure the system of judicial supremacy after each offensive court decision. Which would leave us precisely nowhere.

Section 33 is a neutral constitutional provision, and those who disclaim its use on one question may find themselves wanting to reclaim it for another. If courts were invalidating COVID-19 restrictions as unjustified infringements on personal liberty, many of the people calling for section 33 to be repudiated over Bill 21 would be demanding that Trudeau and the premiers use it to protect vaccine passport schemes. The proper response to bad democratic decisions is not less democracy, but better democracy. And the answer to bad judicial decisions is the same. That is why we have, and why we need, section 33.

Many of today’s opponents of section 33 forget that the wind blows in different directions at different times.

Reading most commentary today, you would think that section 33 is a puzzling anachronism, a sort of constitutional appendix that we only notice when it gives us appendicitis. Part of the fusty impedimenta of the Old Canada that should have been swept away when Pierre Trudeau modernised the constitution and retrofitted it with the shiniest modern conveniences of fashionable thinking circa 1980. You wouldn’t know that it was intended to preserve just some of the parliamentary power that still persists mostly unchallenged in other Westminster democracies like the United Kingdom, Australia, and New Zealand, or that its pedigree is more progressive than conservative.

Potter gives the credit for section 33 to Alberta, but Peter Lougheed was only one of many co-authors. At various times during the negotiation of the Constitution Act, 1982, Saskatchewan NDP premier Allan Blakeney, Manitoba premier Sterling Lyon, and Ontario Attorney General Roy McMurtry all pushed to retain a democratic safety-valve.

Blakeney later wrote an article explaining why. He was old enough to remember the Lochner Era in the United States, when the Supreme Court nullified labour laws intended to protect workers with minimum wages and maximum hours on the grounds that they violated the constitutional right to freedom of contract. Blakeney knew what many of today’s opponents of section 33 forget: that the wind blows in different directions at different times, and the court that is your friend today could be your oppressor tomorrow.

I can’t find any evidence that Allan Blakeney was familiar with the work of JAG Griffith, but if the two philosophical allies didn’t know each other, they should have. A legal scholar and a social radical, Griffith was also a passionate defender of democratic self-government. In his 1978 Chorley Lecture, he summoned the zeal of the Welsh nonconformist chapel (his father had been a Baptist minister) and the pawky realism of the LSE functionalists (his mentors included Ivor Jennings and Harold Laski) to his defence of the right of the people to know who their rulers are and, if necessary, to toss them out on their ears. “I believe firmly that political decisions should be taken by politicians,” Griffith wrote, and “this means by people who are removable.”

Although he would live to see successive Conservative and New Labour governments dismantle policies he approved and enact laws he opposed, Griffith stuck to his principles. First among these principles was that, for all its genteel formalities, “law is politics carried on by other means,” which means “law is not and cannot be a substitute for politics.” Responding to proposals for a British Bill of Rights, he objected that “[t]o require a supreme court to make certain kinds of political decisions does not make those decisions any less political.”

Give the old socialists of the LSE this: when it came to power, they were clear-eyed and hard-nosed. They had lost political fights in the courts and at the ballot box, and they knew that they had a better chance of a rematch in the latter case. They were also rightly suspicious of attempts to hide the real sources of power and to keep them away from the people. They knew that, whether you dressed it up in robes or dressed it down in rags, the project of governing is politics all the way down, and all the way up.

Another person who knew this from hard experience was the late Tony Benn, a member of the British parliament for more than 50 years and the conscience of the British Left from the 1950s till his death in 2014. Benn had five questions that he said should be asked of anyone who exercises power, which he would scrawl on classroom chalkboards and recite at rallies:

  • What power have you got?
  • Where did you get it from?
  • In whose interests do you use it?
  • To whom are you accountable?
  • How do we get rid of you?

The last question was, of course, the most important. A stirring obituary in The Nation recorded that Benn believed: “Anyone who cannot answer the last of those questions does not live in a democratic system” and that is why, “no one with power likes democracy.”

Most skeptics of self-government are content to trust policy-making to the courts because they assume judges generally think the same way they do about politics.

Protesting silkily that in a “liberal” democracy, of course, some questions are so important that they should be decided in cool marble courtrooms rather than in the noisome squalor of the agora doesn’t take the politics out those questions. It doesn’t even take the questions out of politics: it just removes them from one political body and hands them to another, unaccountable, one. There is also something strange about insisting that the interpretation of rights should not be resolved by crude majoritarianism and then declaring the 5-to-4 decision of a court beyond demurral.

It is hard to escape the suspicion that most skeptics of self-government are content to trust policy-making to the courts because they assume that judges generally think the same way they do about politics. Whether say it out loud where the people might hear, or even admit it to themselves, they believe that a judge with a graduate degree and a smooth progression to the top of his profession is more likely to share their assumptions and their prejudices than the general population and the people they elect.

But before we appoint judges as our moral or philosophical arbiters, can we at least ask: is there any reason to think they are particularly good at moral or legal philosophy? Having attended law school, I can’t imagine a worse way to prepare someone to resolve contentious social questions. The practice of law may qualify a judge to opine on regular matters of law, but the Charter is not a regular sort of law and there is nothing particularly legal about the methods our judges use to decide Charter cases.

The Supreme Court of Canada decides Charter cases using something called the Oakes test, which is named for the 1986 case of R. v Oakes in which the Court concocted it. Since then, it has so assumed the status of constitutional writ that a judge friend tells me that some of his colleagues are surprised to learn that it is not actually in, let alone required by, the constitution. The test is a form of proportionality review, a multifactor balancing test that the Court likes describe as a rigorously empirical exercise. In practice, it is an exercise of balancing incommensurable values in which the scales exist only in the judges mind. For all the show it makes of the programmatic weighing of evidence, it is less like principled or evidence-based decision-making and more like sticking a finger in the philosophical wind.

It doesn’t help that many Canadian commentators, and especially Canadian lawyers who should know better, make the mistake of talking about Charter rights as though they were something fixed and easily knowable. The provisions of the Charter are not self-enforcing. They were deliberately framed in abstract terms and their application to a specific case is a matter for reasonable disagreement. Even judges looking at the same set of facts often disagree on whether or how the Charter applies, which is why we have judicial dissents. We shouldn’t hide from this ambiguity, either by pretending that the Charter is something that it is not or that it must mean only whatever the Supreme Court of the day’s wet finger says it does.

Disagreement in a society over the proper balance of individual rights and common good is healthy. In any event, it is inevitable. We are individuals who are also social animals and the process of living with others creates conflicts that cannot be resolved by appealing to the aspirational statements in the Charter. How those principles should be interpreted and applied are, as Griffith said, “the very questions which divide not unify opinion.” Everyone can agree that protecting free speech is important, but ask where the line should be drawn between offensive speech and hate speech, for example, or what qualifies as obscenity, and the consensus quickly fractures. We are back to Tony Benn and the real questions of government: who decides, how, and for how long.

More than a century ago, James Bradley Thayer explained why the answer to those questions matters to the health of a democracy. He described how, as societies get used to deferring difficult questions of policy to judges, they abandon the habits of free people. Over time, he said, political institutions lose the “political experience, and the moral education and stimulus that come from… correcting their own errors.” The result “is to dwarf the political capacity of the people, and to deaden its sense of moral responsibility.”

We can see this atrophying of moral and political muscle here in Canada in calls to refer contentious bills to the Supreme Court even before parliament has begun debating whether they are good policy. Rather than do the job they were elected for, it seems that some of our politicians would rather delegate hard work of lawmaking to judges. This makes sense if they really do believe that it is up to courts and not parliament to decide how to accommodate individual rights to government for the common good. But, in that case, why do we keep electing them?

You will rarely hear anyone complain that Canada suffers from a surfeit of democracy. In fact, there is a cottage industry of scholarly and journalistic articles bemoaning our low voter turnout, our lack of civic engagement, and our withered and atrophied democratic institutions, starting with the federal parliament. (And that is just Andrew Coyne!) The contrast with the United Kingdom, where I live part-time these days, is striking. There, parliamentary debates are still a front page affair. Government ministers and members of the shadow cabinet still appear on morning radio and evening television news shows where they are subjected to intrusive interrogation of the kind Canadian politicians might only see during a federal election. Members of parliament still regularly vote against their party and—hold on to your seat—even publicly criticize their party policy and leadership.

Concern for the powers of parliament is also very much alive in the United Kingdom. The popular Brexit slogan “Take Back Control” was about returning power from the European bureaucracy to British MPs. And, just last week, the government tabled a bill to repeal the 1998 Human Rights Act and replace it with a new British bill of rights that could not be used by judges to overturn legislation (the current act doesn’t give them this power either, but it explicitly ties the interpretation of rights to a European convention, which the new bill would end).

There is an historical irony here. Responsible government—the idea that those who govern us must do so with the consent of the people through their elected representatives—started here in Canada. After the Durham Report of 1839 recommended that the colonies of British North America be permitted to control their own government through their elected representatives, the Canadian example was used to consolidate the same principle in the mother country. It is now considered a defining principle of the Westminster system around the world.

Two hundred years after we introduced the idea of responsible government, the British parliament is debating ways to strengthen its powers; back in Canada, the beaver is debating whether it really needs its testicles after all.

Labour Market Insights: Employment for the holiday season and Ontario’s labour market trends for November 2021

Commentary

In-demand occupations and top-hiring companies certainly reflect the demands of everyday life, and right now we can see a few trends emerging as we approach the holidays. With warnings of supply chain issues, and perhaps an eagerness to make up for last year’s lost holiday season, retail saw an increase in hiring in October. Did it stay that way in November? Are there other issues at play? This month we’re taking a look at how the nuances of the 2021 holiday shopping season have impacted hiring. The analysis draws from Workforce WindsorEssex’s unique data source which covers job postings from across the province (excluding the City of Toronto and the far north-eastern region).

The 10 most in-demand occupations in November 2021 compared to the previous month were as follows:

Graphic credit: Janice Nelson

The top-10 in-demand occupations constitute just under one-third of all job postings (57,701 job postings or 31.2 percent) in the regions. The number of active job postings decreased by 2,573 in November relative to October for a total of 182,267, compared to 184,840 active job postings in October. This is a decrease of 1.4 percent across the regions for November.

We did see a decrease in hiring in some of the top-10 in-demand occupations from October to November. Most notable is the 28.9 percent decrease in hiring for Material Handlers, from 15,330 total active job posts in October to 10,893 in November. Retail Salespersons job postings are also down 5.2 percent from 12,608 total active job postings in October to 11,955 in November. Both of these figures are, however, closer to what they were in September (11,935 total active job postings for Material Handlers and 11,690 total active job postings for Retail Salespersons).

The increase in job postings for Material Handlers and Retail Salespersons in October is connected to retailers preparing for their Black Friday sales in November. This kicked off an earlier holiday shopping season, with many shoppers eager to make up for the lost holiday season of 2020 due to the pandemic. In fact, the Retail Council of Canada noted that Ontarians estimated they will spend $863 during the 2021 holiday season versus the national average of $792 as part of their 4th Annual Holiday Shopping Survey.

On the other hand, demand for Transport Truck Drivers increased 2.6 percent in November from October. Transport Truck Drivers are employed in the Transportation and Warehousing sector by businesses in transportation, manufacturing, distribution and moving companies, or they may be self-employed. To accommodate a busier shopping season, many companies, especially those on the top-10 hiring companies list below, would need additional employees at this time of year. In fact, looking at Statistics Canada’s employment by industry for the whole of Ontario, there were 382,500 employed in the Transportation and Warehousing sector in November, up 1.5 percent from 377,000 employed in the sector in October. This is also up 10.4 percent from 346,400 employed in November 2020, but not quite at pre-pandemic levels (down 3.7 percent from 397,100 jobs in November 2019, as a reference).

The top-10 companies hiring were as follows:

Graphic credit: Janice Nelson

While the companies on the top-10 list remained the same (with some changes in the top-10 spots), most decreased their hiring. Companies typically hire in advance of the holiday season so their recruitment process, hiring, and onboarding and training would be completed before they get extremely busy. As well, we are seeing well-publicized supply chain issues this year, sparking a sense of urgency in shoppers. With employers beginning their hiring process in October so the workforce can be in place before November, it was anticipatable that job postings would start to reduce. 

The Home Depot Canada tops the hiring companies chart with 2,635 total active job postings, up 21 percent from 2,083 in October. The Home Depot Canada carries many seasonal items and as well, many people may be looking to continue home improvements and other projects at home as the pandemic continues.

Also notable is the 16.7 percent increase in McDonald’s Restaurants’ hiring. This could be in preparation for increased business due to the holidays and already having the infrastructure in place to accommodate food orders quickly for drive-thru, take-out, and delivery options in the event additional public health measures are put back into place to address rising COVID-19 cases, as well as to cover vacation for some of their regular year-round employees. In addition to this, McDonald’s Restaurants is likely experiences a high turnover rate.

Looking ahead to December, we may see reduced job postings across Ontario as the holiday shopping season will have concluded and employers would not typically begin the recruitment process for any open positions in December, especially employers who either close or reduce capacity between the Christmas and New Years period.

For more information about Workforce WindsorEssex and their valuable LMI, please visit workforcewindsoressex.com.