Premier Ford and the constitution won

0920 - Here are what I consider to be relevant parts of the Ontario Court of Appeal’s ruling especially referencing those points that those opposed to Premier Ford’s action had made and are now found to be without merit. 

Thankfully, the court stayed with the law and the constitution, not with policy which is the purview of the Legislature. Bill 5 reducing the size of the City Council of Toronto is the law. 

 Court of Appeal (Three Judges) says:

 ‘The question for the courts is not whether Bill 5 is unfair but whether it is unconstitutional. 

On that crucial question, we have concluded that there is a strong likelihood that the application judge erred in law and that the Attorney General’s appeal to this court will succeed.’

And

‘The application judge’s interpretation appears to stretch both the wording and the purpose of s. 2(b) beyond the limits of that provision. His decision blurs the demarcation between two distinct provisions of the Charter: the protection of expressive activity in s. 2(b) and the s. 3 guarantee of the democratic rights of citizens to vote and be qualified for office. 

The s. 3 right to vote and stand for office applies only with respect to elections to the House of Commons and the provincial legislatures: Haig v. Canada, [1993] 2 S.C.R. 995, at pp. 1031, 1033. Section 3 does not apply to municipal elections and has no bearing on the issues raised in this case.’

And

‘Unquestionably, Ontario’s announcement of its intention to introduce Bill 5 disrupted the campaigns that were already under way. 

However, Bill 5 does not limit or restrict any message the candidates wish to convey to voters for the remainder of the campaign. Nor does it erase messages conveyed earlier, although it may reduce their effectiveness. 

While the change brought about by Bill 5 is undoubtedly frustrating for candidates who started campaigning in May 2018, we are not persuaded that their frustration amounts to a substantial interference with their freedom of expression. The candidates were and are still free to say what they want to say to the voters. The inconvenience candidates will experience because of the change from 47 to 25 wards does not prevent or impede them from saying what they want to say about the issues arising in the election.’

 And

 ‘Finally, the application judge’s conclusion that Ontario substantially interfered with the voter’s right of freedom of expression when it doubled the ward population size from a 61,000 average to a 110,000 average cannot be supported. 

 The size of the City’s electoral wards is a question of policy and choice to be determined by the legislative process subject to other provisions of the Charter, including s. 15(1). Whether wards of 61,000 or 110,000 are required to ensure effective representation is a debatable issue that cannot be determined by reference to the right to freedom of expression.‘

Brian Peckford is the former Premier of Newfoundland and Labrador, now living in Nanaimo, B.C.

Andrew Coyne misses the mark on one-man rule

By Brian Peckford

0918 - Andrew Coyne writes a column in The National Post. 

His latest piece is a lament on the nature of our democracy – how it is becoming more concentrated in one person. He declares this as if it is something new. Commentators for years have been referencing this — and I have just written about this on my column (see below) "The Gradual Decline of Parliamentary." Donald Savoie, a respected commentator, wrote on it many years ago in a much-heralded book.

What Coyne gets wrong is that the move to one-man rule not only sees power move from the people’s house to the Executive and to the First Minister's office but also to the Courts and unelected Judges, who have moved from interpreting laws to making them.

That is what this present controversy over Ontario Premier Ford decision is all about and what prompted Coyne’s recent outburst.

I mean, who in Canada ever thought the day would come when a judge thinks and then rules, making an art form of the elasticity of interpreting the Charter of Rights, that he can decide how many councillors should constitute a Municipal Council. 

How dare an elected Premier and an elected Legislature re establish their jurisdiction under 92(8) of the Constitution and Section 33 of the Charter of Rights and Freedoms of the Constitution? Elected people actually exercising their rights under the Constitution?

Talk about getting back to democracy that Coyne alleges he craves ?

Having the elected Legislature, with all its warts, continuing to have jurisdiction over Municipalities is far more democratic than a unelected Judge having such power.

Coyne should be celebrating that rather than denigrating it.

Brian Peckford is the former Premier of Newfoundland and Labrador, now living in Nanaimo, B.C.

Judge made big mistake in ruling on Ontario law

By Brian Peckford

0915 - Judge Belobaba Of Superior Court Of Ontario erred in writing his decision on the Government of Ontario’s Municipal Law .

In Section 11 of that decision he wrote —

‘As Things stand now —and unless a constitutionally valid provincial law says otherwise —the city has 47 wards.’

Not quite right, your honour!

It should read —

‘As things stand now-and unless a constitutionally valid provincial law says otherwise or Section 33 of the Charter is invoked, the City has 47 wards’

By omitting a section of the very Charter that he is using to disqualify the Provincial Bill , the Judge seriously erred in this judgement . Rather than a breech of commission of which he accuses the Government , this is a breech of omission, seriously undermining the Judge's understanding of the Charter itself.

Some may try and argue that Section 11 also includes using Section 33 of the Charter.

The only problem with that argument is that there is nothing in the whole decision that in any way even references Section 33, directly or indirectly. One would have to somehow twist the meaning of what the judge said beyond its context —-ironically , reading into it something that is not there, like Judges are now doing, including this JUDGE IN THIS DECISION.

The Judge was completely oblivious to Section 33 in his decision. It was all about Section 2(b). For example , here are the Judge’s own words from the decision.

‘Section 13 —It is sufficient for my decision today to focus only on s. 2(b) of the Charter and the guarantee of freedom of expression.’

Then again :

‘20] As I explain in more detail below, the Impugned Provisions breach s. 2(b) of the Charter in two ways: (i) because the Bill was enacted in the middle of an ongoing election campaign, it breached the municipal candidate’s freedom of expression and (ii) because Bill 5 almost doubled the population size of City wards from an average of 61,000 to an average of 111,000, it breached the municipal voter’s right to cast a vote that can result in effective representation.’

And again

‘22]     Section 2(b) of the Charter guarantees “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” Although set out in the Charter, the Supreme Court has made clear that freedom of expression did not originate in the Charter but was entrenched in the Constitution in 1982 as “one of the most fundamental values of our society.”[10]’

To show just how slavishly focused the Judge is on 2(b)

59]     On the basis of the evidence before me, I find that the Impugned Provisions (that impose a 25-ward structure with an average population size of 111,000) infringe the municipal voter’s right under s. 2(b) of the Charter to cast a vote that can result in meaningful and effective representation. Once the Province has provided for a right to vote in a municipal election, that right must comply with the Charter.

Notice this last sentence :

"ONCE THE PROVINCE HAS PROVIDED FOR A RIGHT TO VOTE IN A MUNICIPAL ELECTION ,THAT RIGHT MUST COMPLY WITH THE CHARTER."

This comes at the end of the decision , all on Section 2(b) including the paragraph where this found ——so once again when the Judge says comply with the Charter he naively means Section 2(b)——-

He forgot in his zeal that Section 33 is also part of the Charter.

Hence, the Judge was mistaken in his wording in Section 11 of the decision, as I said at the beginning .
Brian Peckford is the former Premier of Newfoundland and Labrador, now living in Nanaimo, B.C.

The tragic decline of parliamentary democracy

By Brian Peckford

0908 - Because of the nature of news today—the ten-second clip, the short un-contextualized so called in-depth story and the perverted view that everyone’s opinion is suddenly fact, means people generally are being poorly served by what is happening to our structures of democracy. People get shallow analysis when comprehensive explanation is needed. And our political leaders or other society leaders have seldom helped.

The evolution (all the way back to Athens and Rome, and the ideas of Montesquieu in the early enlightenment) of our democracy of a parliament, an executive and a judiciary seems to many today to be a well balanced machine. They fail to see the ominous signs of change within the system . That is the gradual erosion of parliamentary authority, the people’s house; this authority moving to the Executive and the Judiciary .

In Canada, we have seen the growth of the Prime Minister Office where prime ministerial assistants and bureaucrats wield as much power as ministers. Back as far as 1999 Donald J Savoie wrote a book titled "The Rise of Court Government In Canada". The following statement is made in describing the book:

"The article challenges long-established conventions about how Canada's federal government works. It argues that Cabinet has joined Parliament as an institution being bypassed. In the late 1990s, political power is in the hands of the prime minister and a small group of carefully selected courtiers rather than with the prime minister acting in concert with his elected cabinet colleagues."

The change is very subtle but real and people who have interfaced with various government departments over the years know what I am talking about. Many lobbyists are always ascertaining where the centres of power reside as strong individuals move from one area of government to another. But one thing is certain, it is now more the First Minister and his minions and less of Cabinet and Parliament. At the same time with this shift we see the role of an MP being diminished as the Executive controls the party apparatus in Parliament. There is less room for the individual MP to express a contrary view without being ostracized.

As this has been happening the introduction of the Charter of Rights and Freedoms opened the door to more judicial activism — more court decisions where parliament's authority once resided. This was subtle and because law and the judiciary is more complicated it tended to evade the eye of ordinary citizen.

But now with the recent ruling of the Federal Court of Appeal many people are seeing for the first time how three unelected judges are ruling on what is essentially an area on which elected MPs should be deciding. Who are the judges to decide on the level and kind of consultation and matters of science?

Although the U.S. system is different with more authority at the Executive level, the increasing use of executive orders is a serious issue. Additionally, in that country the manner in which the judiciary manipulated jurisprudence on Obamacare is still hotly debated. In both cases the Congress is diminished.

The other area that is pressing down on parliamentary authority is in trade. It is generally thought that trade means the exchange of goods and services . That the matter of a country’s sovereignty was off limits. But over time new trade agreements are infringing upon national sovereignty. One of the reasons for Brexit is the fact that the country’s sovereignty was being eroded, replaced by multinational bureaucratic panels. Many people, given Britain’s history , (Magna Carta etc) objected to that. Many other European nations are also concerned about the erosion of their sovereignty within the EU and one of the reasons for the dramatic rise of new political parties. Witness Greece, Italy, Germany, Austria, and now this week even in the failed paradise of Sweden.

President Trump is severely criticized for removing his country from the Trans Pacific Partnership. But one of the reasons for this is the fact that there were areas where American sovereignty was at risk. And the people were not informed.

Perhaps the most glaring example of Parliamentary authority being not only ignored but the system being seriously undermined, was when the American Government signed the Iran deal without reference to the Congress. It was a treaty and everyone knew it and as such needed Congressional approval. None was sought. And this was a treaty with an anti western, global sponsor of terror. For anyone willing to "see" the results are obvious.

What is at stake is the erosion of parliamentary democracy as it has been defined and practised; and, in trade, the very existence of the nation state. We only need to watch the Olympics or the World Cup to realize the importance that nationality still commands.

In both the rise of the executive and the judiciary with the concomitant reduction of parliamentary power, it has occurred largely by stealth. It was never explained to the people that in trade we may loose some of our independence — it was just the positives that were emphasized. 

In Canada the gradual rise of the judiciary was applauded since one was only told about the positives. No one thought by enshrining rights and freedoms there was also the opportunity for rights of the parliament to be diminished. And when some lawyer or concerned person mentioned it, the matter was summarily dismissed as being against the law itself. Even a recent article by national columnist Andrew Coyne continues to obfuscate on this important issue –praising the law rather than dealing with who makes it and how it should be applied in public policy matters.

On the world stage there is this uncriticized global chorus for multi-national entities without the citizenry being fully informed of what the tradeoff is likely to be, especially on trade. That tradeoff is often sovereignty.

What evidence do we have when such multi-national organizations arise?

One example is the EU. Does anyone really want to see this replicated? Starting out as an economic enterprise it has grown into a behemoth of political concentration and regulation dominated by the the big boys who have, for example, imposed an immigration policy which has seen the rise of forces who no longer view the separation of church and state as a pre-requisite for stable and enlightened governance. Witness Germany, Belgium, France , Britain, or Sweden — the increase in rapes, bombing and knife attacks, and no-go zones. Of course, in political correct areas like Sweden such areas are euphemistically called "vulnerable areas" of which there are now 61 in that country. A new system of laws at the local level are being passed which are the antithesis of western values and undermine fundamental freedoms.

How ironic that the terrorists behind the famous Paris bombings lived in the EU headquarters of Brussels? How can a country be considered democratic if there exist no-go zones? That’s tyranny not democracy. Why is that according to Freedom House, democracy and freedom are on the decline; this at a time when there are more trade agreements and more of the UN, alleged by their proponents that they make the world a better place?

And then there is the UN, the other example of a multi-national institution. Who would want more of this? Where anti-semitism is promoted in their human rights council and continues unabated, where through its Palestinian Agency money is provided that actually goes to public schools that promote anti-Israeli concepts. Where corruption on a large scale was exposed in its oil for food program. I have personal experience with its program of international aid where entrenched European interests could play the game of having Canadian interests prevented from even being considered.

The evidence is substantial that freedom is on the decline. Note Freedom House's conclusion in their 2017 report :

"Seventy-one countries suffered net declines in political rights and civil liberties, with only 35 registering gains. This marked the 12th consecutive year of decline in global freedom."

And we all know that global freedom is directly linked to legitimate parliamentary democracy. Once power moves from Parliament to other forms of governance, erosion of freedom is likely to follow.

Obviously there's still a need for the three forms of governance in a democracy: the Parliament, the Executive and the Judiciary. But the Parliament, the representatives of the people, must be the ultimate authority. Not only in theory but in functional application.

What is needed now is robust public debate in Western democracies about the re-balancing of powers of governance to ensure that Parliament and the people are still the final arbiters of public policy. Simultaneously, international debate should be engaged on the role and nature of the nation state versus the role and nature of multi-national organizations and agreements and how they should co-exist.

Cannot nation states exist and trade agreements abound? Athens prospered as an independent state and had extensive trade. The Hanseatic League prospered amid numerous states and principalities from Bergen to Genoa during he Middle Ages!

Cannot the the arms of governance exist and function well, but with the Parliament still supreme?

Internationalists have been successful in spinning a vague concept of Globalization and all its positives, thereby implying of the lesser importance of nation states in the modern world.

It is unclear to me whether greater political integration is really a worthy goal. Homogenization and the fusing of peoples of different histories and cultures seems to me to lead to sameness, stifling the imagination, mitigating the creativity necessary for a Homer, a Dante, Raphael, a Mozart, a Shakespeare or a Louis Armstrong to flourish and be an integral component of society.

Rather the pursuit of more modest goals of economic co-operation among nations, the important ongoing role of the individual, of property rights, more accountable international humanitarian efforts without the bureaucracy, and a real functioning "parliamentary" democracy in definable nation states, is more my idea of the future.

Brian Peckford is the former Premier of Newfoundland and Labrador, now living in Nanaimo, B.C.