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Raphaëlle Roy: Maine: Québec Inc.’s playground

Commentary

I’m lucky that I get to experience my favorite journey like clockwork, year after year, for well over thirty years. The drive begins in Montreal, snakes through green Vermont and over the mighty New Hampshire mountains before crossing into Vacation Land, the magnificent state of Maine. Over the five-and-a-half hour drive, my body slowly relaxes, exhales breath by breath the stress accumulated since my last visit, and my head becomes lighter, my smile more genuine, my eyes brighter. When we arrive on the shores of the Atlantic ocean, I hear the roaring waves, I smell the briny air, and my heart skips. Finally, I’m home.

One could say I’ve been possessed by the Maine spirit since my childhood. My parents would take their four children camping for two weeks every summer on Hermit Island, a tiny islet where nature was left undisturbed, where all you’d find that signals human presence is a single general store to stock the campsite visitor. For the privilege of camping for two weeks in this remote paradise, we had to send a letter application year after year, explaining why our family should be selected to be welcomed on the camping ground. That’s right; we had to apply to be eligible for camping. Our motives had to be pure, we had to promise to honour nature, the peace, and the quiet. We had to be deserving of it. 

I don’t know how Hermit Island is run now, over thirty years later, but I know that this obsession with Maine that will make rationale-thinking adults prone in submission, begging to be allowed to enjoy a few days or weeks on the shores of Maine, with its freezing water and its finicky weather, is alive and well. Renting a house for two weeks on the beach in Maine will cost you the equivalent of spending the entire month of July in Europe. You won’t find luxury in Maine unless you are willing to spend fifteen thousand dollars for a week’s rental. What you will find is decades-old furniture, even older appliances, small and stained showers (indoor or outdoor), some weird smell or other, always, and carpets that should have been ripped out ages ago. Oh, and you have to bring all your sheets, towels, dishrags, and even a bathmat. That’s right, BYOBM. The houses in the small streets within walking distance of the beaches are marginally more affordable and rarely more comfortable. 

This past summer, I rented a house that was a three-minute drive from the beach and found myself for the first time not being able to hear the waves, smell the briny air, and walk on the beach at sun-up and sundown. I gave that up to be able to afford a well-maintained five-bedroom house where furniture was newer, the kitchen was larger and the mattresses didn’t have broken metal springs digging into my back. Was it worth it? To see my son enjoy a week with his cousins in that big house, yes it was. I would not have been able to afford it were it nearer to the ocean, even if according to Revenue Quebec, I’m in the top one percent of earners in the province. I’m not the only one who’s lost her head for Maine and basically paying to be uncomfortable but near the ocean every summer. Thousands of my fellow French Canadians have been vacationing in Maine for generations. My own mother’s obsession with Maine stems from her childhood summers in Biddeford Pool where her parents were annual renters. She passed on the Maine gene to me, and I’ve passed it on to my son, who never stood a chance either way; his father’s family has vacationed in Maine for at least four generations. 

So why, exactly, are people falling in love with Maine and coming back every year, generation after generation?  

First, community is an important part of it. Vacationing in Maine is not an individual pursuit; families and friends congregate year after year and, often, generation after generation. When I walk on the beach in Maine in Pine Point, Ocean Park, or Kennebunk, I will meet dozens of friends or acquaintances from Montreal. My son’s grandparents have been traveling Maine in a pack with at least fifteen of their friends since they were born. Their parents traveled with the parents of their now 70-year-old friends, and their children are now spending summers in Maine with the children of those friends. Entire blocks on the coast house Quebec Inc.’s leaders.

Second, vacationing in Maine allows us to live a simpler life, albeit for a few weeks. Laid-back vibe is a euphemism here and for the duration of our visit, we are free from the tyranny of the big city’s slick professional lifestyle: no more coiffed hair, make-up, or designer clothes. You can wear the same tattered shorts and stained t-shirt every single day of the summer and no one will look at you twice. There’s nothing pretentious or ostentatious about Maine’s people and it’s oddly relaxing to not worry about what you look like heading for the beach. You’d think I’d learn not to overpack after all these years, but I find myself time and time again overpacking, and yet end up wearing the same three bathing suits and Club Monaco cover-up for two weeks.

Breathtaking beaches are another important attraction of Maine. But not all beaches are created equal, and the strip of sand between Pine Point and Ferry Beach is inarguably the most beautiful of the state. The longest, at seven miles long, it’s also the widest, and sunbathers are not pushed to the dunes at high tide like other nearby beaches.

The beach begins at Pillsbury Shores, where you’ll find a handful of majestic oceanfront houses presiding over the white sand coastline. The dunes are home to the endangered and protected Upland Sand Piper and Piping Plover, to the delight of children who see the tiny birds dashing in and out of the tall grass. If you walk up the sand path and cross the street to the marsh side, you’ll come up to Bailey’s Lobster Pound, arguably the best fishmonger in the state. Rush hour is 5 pm, when the crowds rush in, fresh from their post-beach shower, to get their live lobsters and the day’s catch along with made-from-scratch crab cakes, pasta, and the ubiquitous coleslaw and potato salads.

Walking south from Pillsbury Shores, you’ll get to Pine Point, in my opinion, Maine’s best-kept secret. The houses are falling apart and the rental fees are highest here, but the extra-wide sandy beach makes for an almost secluded experience on weekdays before the weekenders from Massachusetts descend. Looking to go out for dinner? Make your way to Pine Point Grill for a comforting bowl of clam chowder and melt-in-your-mouth scallops. Up next is Old Orchard, and you should just keep walking without slowing your stride. Bad food, bad crowds, nothing to see here, ladies and gentlemen. You’ll then get to Ocean Park, an adorable hamlet where you definitely have to stop for an ice cream cone at the Ocean Park Soda Fountain. It’s not the best ice cream you’ll eat but the old-timey atmosphere is too sweet to pass up. The beach at that point starts to narrow dangerously, being eroded year after year at a frightening pace. Kinney Shores, Bayview, and Ferry Beach are found south of Ocean Park and while the quiet streets and secluded area are a dream for a vacationer looking for peace, the narrowing beaches become a sliver of sand come high tide. 

Further south is the well-known Kennebunk Beach and Kennebunk Port. The crowd there is more American than Canadian and it bleeds blue blood. Mother’s Beach is a dream for families of young children who want to set up camp for the day and let the kids run wild.  The beach is small, the water shallow, and there are play structures for your little monkeys to climb on. Get to the beach before 10 am and grab sandwiches, cookies, and chips at Bennett’s Sandwich Shop before getting there, because leaving at lunchtime means giving up the rare and precious parking spot. You didn’t get up at dawn and wrestle your family into your now sand-filled, sunscreen-smeared car, just to leave your hard-won parking spot to the lazy beachgoer who overslept and showed up at noon. 

Finally, fantastic eating is a core part of the Maine experience. So after a day at the beach, you’ll want to reward yourself with al fresco dining at Stripers Waterside for delicate fish fillets, local summer vegetables, and port-side seating. In my opinion, summer is best spent watching the boats sail by while enjoying a crisp white wine, delicious eye-rolling-into-your-head food, and letting the kids run wild on the grass and practice stone skipping in the bay. 

For the gourmet experience, you’ll head to Maine’s largest city, Portland. I cannot emphasize this enough: get there early enough that you’ll be able to snag some Holy Donuts. Made with Maine potatoes, these are far superior to any other donut out there. There are dozens of flavours to choose from, but you won’t want to pass over Pomegranate, Sea salt Chocolate, and Lemon. Once you have your dessert secured, grab lunch at Duck Fat, for gourmet sandwiches, fries, and a shake. Make time for shopping on Commercial St, Market St., and Exchange St. You’ll find dozens of small locally owned shops, with everything from affordable knick-knacks to high-end clothes. If you’re shopping for art, you’ll find several art galleries, pottery shops, and other locally made pieces all over the downtown and old port area. For cocktail hour, oyster fans will want to stop at Eventide Oyster Co for half a dozen. For the main event, you can head to The Corner Room, for elevated Italian, Street & Co for seafood, Fore Street Restaurant for farm-to-table fare, or The Grill Room for a remarkable steak.  

When you’re walking back to your car, eating those sinful Holy Donuts, I guarantee that you’ll have fallen in love with Maine at that point and that you, too, will become a slave to its breathtaking beaches, rickety houses, and easy-going life.  Just don’t forget your bath mat.

Howard Anglin: Three cheers for the notwithstanding clause

Commentary

There are times when I read the news and wonder who is feeding everyone their lines. How did the commentariat settle so quickly on a common script and circulate it to everyone who pops up in my news feed? It happened this week in response to the Ontario government’s decision to use section 33 of the Charter to immunize its legislation to protect students from the threat of further disruption to their schooling (in this case, pre-empting a threatened strike by the union representing 55,000 educational support workers). Everywhere I looked I was assured that the Ford government’s use of section 33, the “notwithstanding clause,” was an abuse of a power that was only ever intended to be used in exceptional circumstances.

So we have Seamus O’Regan explaining that “the notwithstanding clause is meant to be used in the most extreme of circumstances,” Scott Reid tweeting that “its use was always imagined to be rare and accompanied by great stigma,” and Andrew Coyne intoning that “[t]he clause was to be deployed in the most rare and urgent crises, if at al—not in response to every provincial hangnail” and calling on the federal government to invoke its even more rarely-used power to disallow the provincial law.

Much as I always enjoy Coyne’s view of Canada from the terrace of the Price Street Terroni, protecting students who have lost the better part of a year of formal education from further learning loss (not to mention the havoc that closing schools at this time would bring to parents’ lives and a precarious economy) is something more than a hangnail. In fact, managing the difficult balance between the competing interests of teachers, students, and parents in a case like this is precisely the sort of thing that we elect representatives to the legislature to do. 

Which would not be controversial except that, beginning in 2007, the Supreme Court of Canada began discovering rights in section 2(d) of the Charter that protected first collective bargaining (in the BC Health Services case (2007) and then the right to strike (in Saskatchewan Federation of Labour case (2015). This was noteworthy because, in a trilogy of cases decided just five years after the Charter was enacted, the same court had ruled that these rights were not protected under that same section of the Charter.

When I referred to the Supreme Court’s “invention” of a right to strike in 2015, I received furious assurance on Twitter that the court had not “invented” a right, its thinking had merely evolved incrementally, or something (honestly, I couldn’t keep the various rationalizations straight). So let’s have a look at how the Court justified reversing 28 years of its own Charter jurisprudence: “It seems to me to be the time to give this conclusion [that the Charter includes a right to strike] constitutional benediction.” 

Huh. The reversal of established precedent with far-reaching consequences for public policy rested on…a feeling. The time just seemed right, apparently; gut instinct as constitutional principle. Yes, the majority pastes together an impressive collage of evidence based in “history…jurisprudence, and…Canada’s international obligations,” but nothing that wasn’t known by the Court in 1987. As the dissent points out, most of the evidence “existed at the time this Court rendered its decisions in the Labour Trilogy” and “[c]ontrary to the majority’s approach, international law provides no guidance to this Court…for at least one key reason: the current state of international law on the right to strike is unclear.”

Nothing had fundamentally changed about the relations between workers and employers since 1987—if anything, workers’ conditions and bargaining rights had improved since then. But five judges of the Supreme Court wanted the law to change, and so the federal and provincial legislatures lost a power they had had since Confederation. This whimsical decision is the sacred principle that the Ontario government is now offending. 

Is Ontario’s policy a wise one? A desirable one? Honestly, I have no idea. I don’t follow Ontario politics that closely and am not in a position to judge. Which is why the decision should be left to the representatives Ontario voters elected to make it. But the idea that our politicians should be responsible for policy-making is apparently now a controversial, even extreme, view among Canadian elites. Bizarrely, Seamus O’Regan even called the exercise of democratic law-making “an affront to democracy.”

More plausibly, Coyne called the use of section 33 of the Charter a violation of “the 1982 bargain,” referring to the inclusion of the clause as part of “a careful balancing of concessions, not only between those who wanted ironclad rights guarantees and those who preferred parliamentary supremacy, but also between the federal and provincial governments.” And here we have the root of the problem. I agree that “the 1982 bargain is now off,” but I differ in that I lay the blame not with Ford but where it belongs, with the courts.

When the Charter was mooted in the early 1980s, it provoked alarm on both the Left and the Right. Both sides had had front-row seats for a display of just how aggressive judges can be when empowered by an American-style bill of rights and freed from the English (and, it was thought, Canadian) tradition of restraint, with its institutional allergy to judges mixing law and politics. Both looked with trepidation at the experience of the United States in the 20th century.

On the Left, there was concern that the Charter’s individualistic liberalism would be an obstacle to governments making decisions that put collective interests and the communal goods above private interests. For proof, they pointed to the American experience of the Lochner era. On the Right, there was concern that the privileging of individual autonomy rights would lead to courts striking down laws rooted in a transcendent vision of the public good, tradition, or moral reasoning. They pointed to the American experience of the Warren and Burger courts.

The drafters of the Charter tried to assuage these concerns by drafting the text to avoid these problems. They included an explicit limitations clause up front in section 1, which made it clear that the rights set out in general and abstract terms were not absolute, but could (and should) be limited in the public interest under certain (vaguely stated) conditions. They also avoided using the words “due process” to describe the protection of certain rights in section 7, in part because U.S. judges had read these words (against their common and ordinary meaning) to empower themselves as a super-legislature. Instead, the Charter used the term “principles of fundamental justice.”

Finally, the drafters preserved the principle of parliamentary supremacy by providing in the Charter itself that a legislature is not bound by judicial interpretations of the text. It can, if it chooses to, immunize its legislation (subject to certain limitations) from judicial review using the notwithstanding clause. Coyne refers to this safeguard as “the product of some particularly grubby last-minute bargaining,” which is a strange way to refer to accommodating the principle that, for more than three centuries, has been the soul of the Westminster constitutional system. 

One by one the Supreme Court of Canada, with the help of the same liberals who saw in the Charter the entrenchment of their preferred philosophy, removed these prophylactics. First, in 1985, the Court declared that the intention of the Charter’s drafters to provide only procedural protections to the rights set out in section 7 was irrelevant because it would unduly limit the Court’s power. Then, a year later, the Court imported the German principle of proportionality to inform its interpretation of the Charter. In practice, this gave the Court wide and often arbitrary power while rendering the limitations clause in section 1 an afterthought.

So far, the Court has not taken the drastic step of neutering section 33, though there are many in the legal academy calling on them to do so. In the meantime, our media and political class have done the work for them, mounting a sustained campaign to delegitimize its use. And for most of the last forty years, they have succeeded (outside Quebec, and to be fair to them, they never agreed to the Charter). Now that the taboo seems to be losing its power ever so slightly, their rhetoric has shifted from alarmist to apocalyptic. 

But those hyperventilating about the more frequent use of the notwithstanding clause are directing their concern in the wrong direction. If the notwithstanding clause was supposed to be an exceptional power used only in rare cases of egregious judicial overreach, it is because it was thought that such cases would in fact be rare. But once judges began exercising the power to resolve contested questions of public policy—everything from whether prisoners should be allowed to vote to whether there is a right to assisted suicide to the appropriate sentences for mass murderers—they violated “the 1982 bargain.” 

Sometime in the first two decades of the Charter, all bets should have been off. Once the courts made exceptional cases the norm, governments were not only justified but practically compelled to establish a counter-norm of using the notwithstanding clause to restore balance. The only surprise is that it took them so long, but better late than never.

Now, I don’t want to be too hard on our elites. They have good reasons to want to restrict the scope of legislative policymaking by empowering judges to remove quintessentially political questions from the political forum. At least that’s what they tell us. I’m sure it’s just a coincidence that the courts’ choices about when to step into the political fray and when to hold back tend to align with their own policy preferences. In 1968, JAG Griffith described this as a “conjuring trick” in which judges “render to Caesar the things that are Caesar’s and to themselves the things that are God’s—the ultimate values of justice, fair play, and holding the balance between the powers of the executive and individual rights.” 

Unlike most commentators in the Canadian media this week, I think judges make poor gods. Call me a stickler for democracy, but I prefer that the people wielding ultimate power in my society be accountable and, in a pinch, removable. You can have your serene and untouchable juristocracy. Give me the spirited, messy, agonistic struggle of representative and responsible government, in which our rulers are constantly reminded of what they owe to the ruled. And if it takes the Charter’s notwithstanding clause to protect it, then I hope our governments use it as often as is necessary to do so.