This week at Hub Forum, readers discussed the potential consequences of a second Trump term, Supreme Court Justice Malcolm Rowe’s comments on judicial overreach, whether journalism schools are failing a generation of students, Canada’s big bet on the U.S. as a trade partner, and Canada’s housing crisis.

The goal of Hub Forum is to bring the impressive knowledge and experience of The Hub community to the fore and to foster open dialogue and the competition of differing ideas in a respectful and productive manner. Here are some of the most interesting comments from this past week.

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The seismic consequences of a second Trump term

Monday, February 5, 2024

“Some may try to use the ongoing political drama south of the border as a distraction from their own performance. We must not let them. Rather than all this fretting about what may or may not occur in Washington, far better that we continue to remain focused on what’s happening in Ottawa.”

— RJKWells

“American democracy, such as it is, is certainly at risk, which would likely be very bad for Canada.”

— Paul Attics

“So, what about NATO and global peace and security?

The USA has always been the keystone of NATO. And beyond its NATO leadership has filled, for good and bad, a stabilizing role as the world’s de facto police force. It is worth noting that many have complained about the USA’s ‘imperialism’ while voting for politicians who don’t adequately fund their own national security apparatus or take a proactive role in foreign affairs, preferring low taxes and extensive social programs.

The USA leaving NATO, or stepping back from its historical role in global relations, would be highly destabilizing. As such the claim of Mr Granatstein’s essay is correct. This would be detrimental to the USA as well, but by then it may be too late. You don’t create a stable geopolitical environment overnight. Bad actors are kept in check due to a consistent approach and a credible threat. A future POTUS couldn’t simply hold a news conference declaring that ‘The USA is back!’ and expect everyone to go back to their corners. The consequences of a second Trump term would indeed be seismic.

But the real question is ‘Why do we need the USA to protect us?’ In the aftermath of WWII, the USA was needed to underwrite NATO as most European countries were broke (financially) and largely broken (economically). But it has been almost 80 years. The end of the essay touches on this. Is the problem really the possibility of a second Trump presidency? Or is the problem that too many countries—Canada certainly included—have happily pursued their own best interests while providing largely token support to international peace and security? The last paragraph of the essay points to this but does not really drive the issue home. This should be a learning moment.”

— Gord Edwards

Supreme Court judge warns about judicial overreach

Tuesday, February 6, 2024

“The judiciary should not be in the business doing anything more than interpreting the law as written IMO, not expanding the meaning and/or scope based on the context of the present moment and/or desires of highly motivated specific constituencies, even if the outcome might be deemed fairer, or even, more just.

Even judges are human beings, and as such, should be as non-political as possible, generally, as well as un-invested in outcomes other than a straight interpretation of the laws.”

— Paul Attics

Journalism schools are failing a generation of students

Wednesday, February 7, 2024

“A fine pulling back of the veil that shows that—if anything—Paikin pulled his punches. Some hard conversations are going to be needed if journalism is going to save itself from the neojournalists who refuse to serve their readers the way readers want and expect to be served. This is a devastating quote about staffers unwilling to abandon their assumptions. Good Lord. As API and others preached for a century ‘Assumptions are the mother of all screw-ups.’”

— Peter Menzies

“The job of educating journalists should be to help them probe those biases within themselves and within the people involved in the stories they cover in an effort to present as balanced a picture as possible. They should be taught methods not beliefs.”

— Stephen McClellan

Is Canada betting too much on the U.S.?

Thursday, February 8, 2024

“Our trade with the U.S. is much like being a small business contracting to one large company. It is convenient, but can be disastrous when that company has a change of management or marketing problems.”

— Kim Morton

“Our industries need to be competitive with the world. Tariff elimination gets rid of unproductive industries that are unable to adapt and lowers costs for the competitive. Focus on consumers, not producers.”

— Steve

You shouldn’t have to have rich parents to own a home

Friday, February 9, 2024

“This is an international problem and Canada isn’t the only country suffering from high housing prices. It’s true that Canada has two cities in the top 10 least affordable cities in the world. Expensive real estate is hardly a new phenomenon though and it is not strictly a Canadian issue. And it’s a complex issue that spans all levels of government, but most of the issue is at the municipal level.”

— Michael F

“First the rental issue. Unless the land price is taken out of the rental equation the rent will rise with home prices. Find crown land somewhere in the proximity of larger centres and develop rental-only housing. Any government land should never be sold to developers. (Remember Toronto Green Belt fiasco). Developers can build but not own the land. All the Vancouver folks have done via their zoning is add 40 percent to the price of land for every single-family home that is now on it. And in that area land is twice the value of the physical house on it!

Parents in mortgage-free or virtually mortgage-free homes should assist children with money to purchase a first home. If nothing else they should provide the $8,000 as a donation to the FHSA for as long as possible. Encourage the children to relocate to lower-price housing areas by having them look at work opportunities in those locations. Mobility should no longer be an issue.

The list of government programs to facilitate home ownership in the last few decades has always resulted in land prices increasing. Giving massive subsidies to corporations to build a plant or factory increases the price of housing in that location. The are many other examples.”

— Harry Boessenkool

“A society that now requires a large wealth transfer in order to buy a home is well into an accelerating standard-of-living decline.”

— Paul Attics

British Columbia has been wrestling with the problem of public drug abuse for years. It has pioneered innovative programs such as supervised consumption sites where addicts can safely use illegal drugs. But striking the right balance between helping drug addicts and creating a safe livable city has proven to be a very difficult problem.

A recent Act tried to fine-tune the current approach by preventing drug users from using fentanyl and other illegal drugs in public parks. This might seem fairly uncontroversial, and yet, in a recent decision, Chief Justice Hinkson of the Supreme Court of British Columbia granted an order preventing the Act from coming into effect until the end of March, on the basis that it was arguably a Charter violation. The decision is shocking. How could it possibly be unconstitutional to stop people from using fentanyl in public parks? The implications are even more shocking. We need to get into the weeds of the law to see where the problem lies. 

The federal Controlled Drugs and Substances Act makes it illegal to possess or traffic drugs such as fentanyl. The Act provides that the federal minister of Health may grant exemptions. As part of its strategy to address drug abuse, at the beginning of last year, British Columbia got an exemption from the Act to decriminalize possession of small quantities of certain drugs, including fentanyl. The exemption did not apply to certain listed premises, such as K-12 schools, skate parks, or wading pools. Last fall, after most of a year’s experience with the exemption, the province passed the Restricting Public Consumption of Illegal Substances Act. Its main effect is to fine-tune the exemption, by adding public parks, beaches, and sports fields to the list of places where illegal drugs cannot be used.

But the Act doesn’t actually make it a crime to possess drugs in public parks. If someone is using drugs in a public park, the Act authorizes the police to ask the drug user to stop using drugs or leave. It is only an offence if the drug user refuses to leave when asked. If the drug user refuses to leave or stop using drugs when asked, then the police officer may seize the drugs. 

To recap, if a police officer comes across someone using fentanyl in a public park, the Act allows the officer to ask the drug user to stop using and leave. That is what Chief Justice Hinkson held is potentially unconstitutional. The direct implication of the decision is that there is arguably a Charter right to use fentanyl in public parks. If that seems crazy, it is. So let me back up my assertion.

In his brief discussion of the Charter breach, Hinkson CJ began by noting that a law that prevents access to health care makes out a deprivation of the right to security.^1[50] But this Act clearly does not directly prevent access to health care, so this is a bit mysterious. He then said that the real harm is “by directing [drug users] and those who care from them away from public places, there is a prescient risk that the Act will push [drug users] further from health services and deprive accesses thereto.”^2[50] 

How does asking drug users to leave a park while they are on drugs prevent their access to health care? Hinkson CJ accepted two main arguments. One is that if a user has their drugs seized they may suffer withdrawal or buy lower-quality street drugs.^3[76] This is weak—if the user doesn’t want their drugs seized, they can simply leave the park when asked. Otherwise, the police officer has no right to seize their drugs.

The second argument is that fear of encountering police in public places will lead drug users to use in private, which is more dangerous because if a user overdoses in public they are more likely to get help.^4[79] This is also a weak argument—after all, B.C. has safe injection sites for exactly that purpose. But it is nonetheless the key point. This argument doesn’t turn on anything specific about the new Restricting Consumption Act. These arguments would apply equally to the Controlled Drugs and Substances Act itself. The bottom line is that this decision holds that it is arguably unconstitutional to prohibit drug users from using drugs in public. The logic is that we must allow them to use drugs in public because if they do they are more likely to be saved if they overdose. The breach of a Charter right is a trump card, that overrides the right of families to go enjoy a public park without drug users.

I say it is “arguably” a Charter violation because in this kind of case, seeking a temporary order, it is not necessary to prove that there is a Charter violation—it is enough to prove that there is “a serious issue to be tried.” Maybe this order will be overturned on appeal. Maybe the Act will be upheld if it is challenged on a more permanent basis after it goes into effect. But even so, we have a senior judge telling us that it is arguably a Charter violation to stop drug users from doing drugs in a public park. 

That it is even arguably a violation shows us that something has gone very wrong with the Charter. Stepping back from the specific legal grounds, Hinkson CJ considered that “the unregulated nature of the illegal drug supply is the predominant cause of increasing death rates in British Columbia,” and he accepted that the basic drug policy framework that makes serious drugs illegal is the primary driver of this harm. This is classic governing from the bench. The best way to deal with drug abuse is a difficult public policy issue involving difficult tradeoffs between the interests of drug users and the public. Complex policy decisions need to be made by the legislature, not the courts. The Charter was originally intended to protect fundamental rights from an intrusive government. It should not distorted into a tool for judges to control public policy. 

It would be entirely appropriate for the B.C. government to invoke the notwithstanding clause. Indeed, the time has come for the notwithstanding clause to be used routinely. The Charter gives considerable power to judges, but it is not a magic scroll that also gives them mystical powers of wisdom. The words of the Charter provide no real constraint, at least as they have been interpreted by the courts. The courts should be a sober second thought, not the final word. If a judge decides certain legislation is contrary to the Charter, the legislature should be able to say “Thank you for your opinion, but on careful reconsideration, we disagree, and it is democratically elected representatives of the people who have the final say.”