Elizabeth May Questions Our Bad Political Decisions

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Vol. 27, No. 2
March 2019

Getting the
Word Out
Public Speaking for
Public Servants
by DREW FAGAN

Feminism for Men

by KATE HERON

Prose Shaped
by Silence
by LINDA BESNER

ALSO IN THIS ISSUE

The Avro Arrow’s Big Year
CHRISTOPHER WADDELL

Relativism in the Courts

MICHAEL BRYANT

PLUS
Colleen Simard, Alanna Mitchell &
George Fetherling

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3 Letters
Charles Diltz, Lawrence Wardroper,
Michael Taube
4 A Fully Realized Senate
The upper chamber is finally doing what
it’s supposed to do
Christopher Moore
6 Conspiracy Interceptor
Facts and fictions of the Avro Arrow
Christopher Waddell
8 You Too
Selling men on gender equality
Kate Heron
10 Say It Loud
Why the public service must speak up
Drew Fagan
12 Courting Disaster
How did the supreme law of the land
lose its supremacy?
Michael Bryant
John Barber is a widely published
journalist and former columnist
with the Globe and Mail.
Linda Besner is a writer and poet
with two collections to her name,
Feel Happier in Nine Seconds and
The Id Kid.
Michael Bryant, a former attorney
general of Ontario, is the executive
director and general counsel
of the Canadian Civil Liberties
Association.
Drew Fagan is a former Ontario
deputy minister and policy-maker
with the Department of Foreign
Affairs and International Trade
(Global Affairs Canada). He is
now a professor at the University
of Toronto’s Munk School of
Global Affairs and Public Policy,
and a Public Policy Forum fellow.
With Thanks to Our Supporters
March 2019
Vol. 27, No. 2 • March 2019
15 Better Voters 29 Language Shaped by Silence
Necessity demands a different approach The mind and craft of a deaf writer
to democracy Linda Besner
Elizabeth May
30 All That Jazz
17 Screen Saver? When a small club transformed
Questioning routine mammograms Vancouver’s arts scene
Alanna Mitchell George Fetherling
19 Beyond Reconciliation 32 An Eye-Popping Debut
Winnipeg’s shameful past shows the The chaotic highs and lows of
way forward returning home
Colleen Simard Cecily Ross
21 The Private Lives of Privates
Trench culture helped our soldiers survive
Poetry
From upcoming spring collections
David MacKenzie
Vindauga, E. Alex Pierce, p. 7
24 A Quiet Overthrow Gorgon, Cassidy McFadzean, p. 16
The paradigmatic prescience of Jane Jacobs Return Address, Ken Victor, p. 18
John Barber Chernobyl, John Wall Barger, p. 22
26 A Big Bang of Physics
Yearning to know our universe
Dan Falk
Dan Falk is a science journalist Elizabeth May is the member of Christopher Waddell is the Carty
based in Toronto. His books include Parliament for Saanich–Gulf Islands, Chair in Business and Financial
The Science of Shakespeare and in British Columbia, and leader of Journalism at Carleton University.
In Search of Time. the Green Party of Canada.
Artwork by Valéry Lemay, a
George Fetherling has published Alanna Mitchell wrote Malignant graphic designer and illustrator from
fifty books of fiction, poetry, and Metaphor: Confronting Cancer Montreal who has contributed to
cultural commentary, most recently Myths, which won the 2015 Lane Reader’s Digest, LSTW Magazine,
The Carpenter from Montreal, a Anderson Award for excellence in Vice, and numerous other clients.
novel. He lives in Vancouver. Canadian science writing.
Kate Heron, a corporate Christopher Moore is the author
communications professional, of 1867: How the Fathers Made a
lives in Toronto. Deal, among other works.
David MacKenzie is a history Cecily Ross, an editor with the
professor at Ryerson University. LRC, wrote The Lost Diaries of
He edited Canada and the First Susanna Moodie, a novel.
World War and co-wrote, with
LRC founding editor Patrice Colleen Simard, a registered
Dutil, Embattled Nation: Canada’s member of Peguis First Nation,
Wartime Election of 1917. is a writer, T-shirt designer, and
Instagram fashionista.
Made possible with
the support of
an Ontario government agency
un organisme du gouvernement de l’Ontario
Ontario Creates
1
Courting Disaster
How did the supreme law of the land lose its supremacy?
MICHAEL BRYANT
Policy Change, Courts, and the
Canadian Constitution
Emmett Macfarlane, editor
University of Toronto Press
464 pages, hardcover, softcover, and ebook
ISBN 9781487523152
Understanding Unconstitutionality:
How a Country Lost Its Way
(An Essay in Three Parts)
Arthur Peltomaa
Teja Press
273 pages, softcover and ebook
ISBN 1999464001
I t seems fitting that I began writing this
review — concerning judges, politicians, and
policy — in a courtroom hearing about just
that. With my forbidden laptop out of judicial sight,
I typed away at Toronto’s Osgoode Hall, where the
Ontario Divisional Court was hearing two days of
arguments about the challenge by my employer,
the Canadian Civil Liberties Association, to the
Ontario Ministry of Education’s decision to change
the sex-education curriculum taught in the prov-
ince’s schools. In our view, the decision to replace
a 2015 curriculum with a 1998 version violated
several provincial statutes, as well as the rights to
equality and security in the Charter of Rights of
Freedoms. The 1998 version was only about hetero-
sexual education, whereas the 2015 one discussed
same-sex relationships, sexual orientation, and
gender identity.
The government’s response to our challenge
was basically that the courts should mind their
own business, arguing in its written brief that “the
legislature has given to the minister, and not to
the courts or the applicants, the responsibility to
set educational priorities and direction for all of
Ontario’s publicly funded schools.” Thus, the sub-
ject of Policy Change, Courts, and the Canadian
Constitution was very much alive in the courtroom
as I began to write. I  hoped to find something in
it to answer the question of why and how we’ve
ended up, in my view, downgrading the concept
of “supreme law” provided for in our Constitution.
There was a time in Canada when “unconsti-
tutional” meant something. No longer. Relativism
has overtaken the judicial interpretation of
fundamental rights and freedoms in Canada, to
the point where words in our Constitution like
“supreme” and “fundamental” seem misplaced,
replaced by weasel words like “temporary” and
“reasonable.”
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Relativism and weasel words compromise judicial interpretations of fundamental rights and freedoms.
The power mongers in first ministers’ offices
descend upon their agents to manipulate institu-
tions designed to protect us. Using legal discourse,
means become ends, the falcon cannot hear the
falconer, and it’s no wonder populism arises as sal-
vation to some and a dirty word to others.
The analysis in Policy Change ought to have been
relevant to our Divisional Court hearing, which
indeed was about policy making, jurisprudence,
and legislative authority. Yet no point in the book
was cited by any of the six parties with standing
before the Divisional Court, nor may any of its argu-
ments see the light of day in any judicial decision,
cabinet document, legislative speech, or policy brief.
This is a book by scholars and for scholars, and
its editor, Emmett Macfarlane, rightly proclaims it
to be innovative and unprecedented. It is obviously
topical, as the packed courtroom for the CCLA
challenge would indicate. That it is scholarly need
not mean it is inaccessible to a broader readership.
So is it? As with the book itself, the answer to that
question requires some elaboration.
Macfarlane is a political scientist at the
University of Waterloo, in Ontario, and these essays
examine constitutional cases from a political sci-
ence perspective. This should mean a freshened
perspective, but too much of the writing is mired
in overly academic prose in the worst sense — too
specialized, full of jargon and inflated vocabular-
ies. Any chapters with “punctuated equilibrium”
or “desuetude” in their titles deserve additional
revision, particularly when those terms are never
properly explained.
But the political science analysis of policy
making by the courts is indeed a valuable project,
because it need not be distracted by doctrinal lim-
itations arising from the jurisprudence itself. Why,
when, and how courts make policy is not only grist
for law faculties and practitioners. Public policy
effects change in Canada — and occasionally that
change is truly uncharted. More typically, it either
turns the clock back or entrenches the status quo.
This variety of public policy, if undertaken by courts
rather than institutions accountable through elec-
tions, affects the masses. It’s relevant to all of us,
even if this particular book was not intended for
the masses.
Having lit on the idea that judge-made policy is
worth studying by social scientists, the editor had
to tackle its legitimacy (in Part One), its impact on
governments and legislatures (Part Two), and then
its impact on particular policies (Part Three). The
questions posed in the book are fundamental. Why,
if at all, should judges be making policy? Regardless,
how do politicians anticipate or respond to or cap-
italize on what the judges are doing or might do?
How have these practices played out with abortion
PHOTOGRAPH BY DETSANG / FLICKR
policy, assisted dying, policing and corrections,
language rights, Indigenous rights, queer and trans
rights, and refugee, citizenship, and immigration
policy? In this regard, I have a few complaints about
the book that are but trifles: it focuses upon federal
rather than provincial policies, and on govern-
ment more than legislatures. A  bright spot is Kyle
Kirkup’s chapter, “After Marriage Equality: Courting
Queer and Trans Rights,” where we learn that trans
Literary Review of Canada
activists likely will not (only) follow the path laid by
same-sex marriage legalization.
The book is limited by its focus on the executive
branch of the federal government. This is illustrated
by the chapter by Janet Hiebert, “The Charter, Policy,
and Political Judgment,” on how Canadian federal
governments anticipate the possibility of judicial
review. The U.S. Congress does not get fussed about
constitutional challenges, she explains, whereas
European legislatures are risk averse to anticipated
litigation. Because Canada’s parliamentary system
tends to be controlled by the Prime Minister’s
Office, the conflation of legislature and executive
by the author is fair enough, and I entirely agree
with her conclusion, that Canadian governments
are constitutional “risk takers” rather than “Charter-
proofers.” In other words, federal politicians don’t
seem to care about judicial review or the Charter,
other than rhetorically. Hiebert’s conclusion is pre-
scient, considering the risk undertaken by the PMO
in its efforts on behalf of a Quebec conglomerate
facing criminal charges, fully exposed and turned
into a scandal as I write by the resignation from cab-
inet of a former justice minister.
The risk taking is a different story in many prov-
inces, because of the integration of constitutional
lawyers answering to the attorney general within
ministries responsible for areas such as health, edu-
cation, energy, and the environment. My experience
as attorney general in Ontario was that the efforts of
my predecessors, Roy McMurtry and Ian Scott, to
so infiltrate the entire government made it difficult
to get a policy before cabinet that was likely to be
overturned by the courts.
In the case involving the CCLA and Ontario’s
sex-ed curriculum, the evidence made
clear that the Premier’s Office and
the education minister had told the The Constitution is “supreme law.”
deputy minister of education to imple-
ment the revised curriculum but not to
But that “supreme law” is not an end
advise the government — at the time,
only weeks in office — on whether the
itself. It’s a means to an end.
policy was pedagogically sound, let
alone constitutional. While such an episode may be
business as usual in Ottawa, it is not necessarily the
canonical approach in the rest of Canada.
Moreover, the most extraordinary constitutional
development in Canada of late receives initial but
insufficient attention by Macfarlane: courts “tem-
porarily” permit the continued operation of laws
they’ve ruled unconstitutional — a pause to allow
legislative redress, however inadequate — to avoid
the alleged horror of a legislative vacuum. As if a
law, any old or new law, is necessarily better than
no law. This trend is, I believe, an inexplicable tol-
erance of injustice and intolerable deference by the
judiciary to the executive.
Consider our old abortion laws. When the
Supreme Court struck down the abortion pro-
hibition in the Criminal Code in 1988, that was
that. No federal government has touched abor-
tion regulation, let alone criminalization, since
then. Today any such ruling — that the Criminal
Code is contrary to the Charter — would not mean
that women would be free to abort a pregnancy.
If  R.  v.  Morgentaler were decided today, in other
words, doctors and female patients would be facing
criminal sanctions for attempting an abortion.
Today, courts routinely rely on the suspended
declaration of invalidity, a remedy that permits a
government to game the courts, such that uncon-
stitutional infringements by the state can continue
ad infinitum. That is to say, government lawyers
insist that chaos will reign if a law is struck down
immediately, misappropriating a remedy used
March 2019
in the extraordinary Manitoba Language Rights
Reference (1985), where the Supreme Court of
Canada ruled all Manitoba’s laws unconstitutional
for not being bilingual. Next, the Crown returns to
court when the deadline to fix the unconstitutional
laws approaches, insisting that legislative traffic
jams justify continued unconstitutionality — until
the new law is finally passed, often fixing nothing,
but now the applicants have to start all over again
with a new challenge.
Judges today fancy themselves constitutional
auditors and robed policy makers, in a fashion
unique to Canada. Many have been hornswoggled
by Crown counsel, without any evidence of any-
thing before the court, to permit the Crown to
renovate a house condemned.1 I  say either the
Constitution means something, such that uncon-
stitutional laws cannot stand, or it doesn’t. For
otherwise the injustice continues to do its wrong.
This is not to say that Parliament has taken back
the reins of power. Parliament also gets snookered
by the executive branch, with some promises of
a renovation to come. It’s a song and dance that
sometimes involves parliamentary institutions but
usually just executive chimera. The usual trick is
for the minister to mention the judicial decision
in media statements and in the introduction of a
bill to the legislature, as if acknowledging that the
will of the judiciary trumps the will of the elected.
But, more often than not, the trick ends with the
new bill complying with the judicial decision not at
all. In some nations, such behaviour is considered
contempt of court.
This increasing practice is well covered in the
chapter by Eleni Nicolaides and Matthew Hennigar
on assisted suicide, “Carter Conflicts: The Supreme
Court of Canada’s Impact on Medical Assistance in
Dying Policy.” The so-called dialogue between judi-
ciary and Parliament to craft legislation that con-
forms with the Charter has become a shell game, a
clever political sleight of hand that’s contemptuous
of the Constitution — incredibly, in the name of the
rule of law. Defying the Supreme Court decision in
Carter, which struck down the assisted suicide ban
“temporarily,” is less a dialogue with the courts than
the tail wagging the dog.
Canada is a parliamentary democracy in
which the Constitution is “supreme law.” But that
“supreme law” is not an end itself. It’s a means to
an end. “If Canadians can agree upon the great and
lasting principles upon which they wish their soci-
ety to be built, then they can agree upon the broad
lines of the constitution needed to achieve those
ends,” said the constitutional authority (and poet)
F. R. Scott in 1943. We did that. The broad lines of
our Constitution have the executive doing this, the
legislature doing that, and the judiciary reviewing
both. The judiciary can conspire with the legislature
only if the Constitution so permits. But Canada’s
Constitution does not permit this cabal of uncon-
stitutional denial. That Constitution, until further
notice, reads, under section 52: “The Constitution
of Canada” — which includes the Canadian Charter
of Rights and Freedoms — “is the supreme law of
1 As a former Ontario government House leader, I learned
that if a majority government truly wants a law passed in a
jiffy, it can be done faster than one can say “budget bill.”
Canada, and any law that is inconsistent with the
provisions of the Constitution is, to the extent of the
inconsistency, of no force or effect.” Absent a con-
stitutional amendment, that’s the law of Canada.
So if a court finds that a law is inconsistent with
the Constitution, it is of no force or effect — period.
No weasel words like “reasonable” or “temporary”
intrude upon this declaration of supremacy.
(On February 28, the Ontario Divisional Court
dismissed the CCLA’s application. We are seeking
leave to appeal on a number of fronts, one of which
is that the Ministry of Education curriculum is,
indeed, subject to the Charter of Rights.)
Without any idea or evidence of how legislatures
actually work, Crown counsel make promises they
can’t possibly keep, clinging to laws ruled by the
courts to be sunk, only to be rescued by Crowns
submitting that the laws aren’t truly sunk, but
merely sinking. Yet somehow these unconstitu-
tional laws on prostitution, solitary confinement,
assisted suicide, and medical marijuana, to name
only a few, remain legally afloat. Judges fear the fan-
tastical anarchy foretold by the Crown and lack the
spine to effect their own judgements. Occasionally,
even plaintiffs’ counsel fear looking unreasonable
or overly principled to their Canadian colleagues.
Bar and bench alike betray the language of the
Constitution, giving the first ministers’ offices an
inch. They take a mile.
I n our democracy, the authority to pass, repeal,
and change laws rests with Parliament, elected by
the people. The authority to review laws rests with
the judiciary. The authority for both is entrenched
in the Constitution, which is indeed a product of
both Parliament and judiciary, but its
authority is engendered democratic-
ally, even where that authority is judi-
cially reviewable. We can change the
Constitution according to the rules
we set for changing it. But until then,
the Constitution reflects the great and
lasting principles upon which Canada
is built. There is an undemocratic renovation under
way today.
This is the subject of Arthur Peltomaa’s
Understanding Unconstitutionality: How a Country
Lost Its Way. It is a polemic of legal scholarship
written by a practitioner. Peltomaa, a partner with
Bennett Jones LLP, in Toronto, observes, “Canadian
courts routinely make orders which allow gov-
ernments to act unlawfully following findings of
unconstitutionality.” His entire 200-page book is
about this Canadian practice, rejected out of hand
in other countries, of conferring temporary validity
on laws adjudged to be unconstitutional. While the
writing can be indulgent and flowery (Zeus appears
in the first paragraph), it is a compelling read. It
argues against the phenomenon of the suspended
declaration of invalidity that Policy Change opens
with, but devotes scant attention to it otherwise. If
you had to choose between the two books, I think
you know which one I’d recommend.
Policy Change seeks to break new ground, not
settle any scores. It does not purport to be a book
about the Constitution; instead, it is about policy
changes by the courts, through the lens of political
science. It contains many helpful insights but no
unifying direction or lessons to be learned, as is
often the case with anthologies. It is intended to get
a neglected social science ball rolling, which hope-
fully means more expert scholarship, available to
all those seeking to divine the constitutional law of
Canada. For that we can be grateful to Macfarlane
and his contributors.
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