On March 5 at Toronto’s Albany Club, Bronwyn Eyre was presented with the inaugural Cartier-Macdonald award from the Canadian Constitution Foundation. The award was established to honour Canadians who have shown “exceptional leadership in advancing the principles of freedom” and “intellectual rigour and personal courage in defending democratic self-government and parliamentary supremacy.”In her speech, Eyre took on the growing politicization of the courts, the importance of the Notwithstanding Clause, who gets to define the ‘rule of law’ — and the need for greater debate.Eyre is a columnist for the Western Standard and Saskatchewan’s former minister of Energy and Justice/Attorney General. Bronwyn Eyre’s modified acceptance speech:It’s an honour to be the recipient of this award, named after our first prime minister, who will withstand history, no matter how many streets named after him are re-named, statues removed, or vandalized.None other than Pierre Trudeau regarded himself as a “John A. Macdonald Conservative at heart.”Like Macdonald, George-Étienne Cartier was also a great nation-builder: a once “Fils de la Liberté,” who took on the Crown and the “Château Clique” (forerunners of the “Laurentian Élite”), but went on to serve as Canada’s first minister of defence. Hats off to these two pragmatic patriots.Law Society Codes of Professional Conduct prescribe that lawyers encourage “public respect for the administration of justice” — but “never hesitate to speak out against injustice” and commit to “equal justice.”But that’s also where the nuances come in..For example, John Crosbie’s notion of injustice was doubtless different from Jodie Wilson-Raybault’s. Or, for that matter, from Alan Blakeney’s.All outspoken, even activist, justice ministers.Blakeney was a great defender of the Charter — but in great part because he and his justice minister, Roy Romanow, considered it a protection against the élites. Romanow was initially a Charter-skeptic who considered the courts “élitist citadels of privilege” and part of a “majoritarian tyranny.”So, what constitutes equal justice depends — in large part — on your ideological perspective.The law and politics are closely intertwined. Everything is political. However, to take on the “majoritarian tyranny” that now exists, civil libertarians must advocate for their own version of the “living tree.”There’s also the delicate matter of politics and the judiciary.The late Supreme Court Justice Bora Laskin said a “judge has no freedom of speech to address political issues which have nothing to do with judicial duties. [That] guarantees independence.” .Perceived judicial activism comes about when ideology masquerades as impartiality. When ideology hides behind judicial independence, the “rule of law,” and so-called “rules-based order.”In February in Davos, Prime Minister Mark Carney called for a return to a “rules-based order.”Many loved the speech, including a certain MP from Edmonton.But it was laden with irony.In Canada, the “rules-based order” has come to mean being existentially anti-American, while at the same time being dependent on America for both defence and trade.As Konrad Yakabuski recently wrote, “For decades, global elites preached the virtues of this integration, often at the expense of their own workers.”Back in Saskatchewan, a now-retired judge was well-known for his “rule-of-law-is-being-eroded” speech.But the only places it was apparently being eroded were in conservative countries: Hungary, Poland, the US (of course), and Israel.Speaking of Israel.What really angered those protesting nightly back in 2023 was that the Netanyahu government was proposing something very similar to Canada’s Notwithstanding Clause — which, depending on your political leanings, is a saviour of parliamentary sovereignty or the “nuclear option.” The destroyer of the “rule of law.”.The Chief Justice of the Supreme Court, Richard Wagner, has called for “boldness” in the face of “erosion of the rule of law.”But it’s only ever a certain kind of boldness.Wagner called the 2022 Freedom Convoy “anarchy,” “hostage-taking,” “forced blows against the state, justice, and democratic institutions,” which should be “denounced with force.”And now … he’s set to preside at the appeal of two decisions which ruled against invoking the Emergencies Act.What would Bora Laskin say?Has the “rule of law” become the “rule of lawyers?”British peer, Lord Glasman, recently wrote that the international, rules-based order was achieved not through politics, but the law. It crept up on us. Sovereignty came to lie not in Parliament, but in the courts, subordinated to international treaty law and prescribed by unelected bureaucrats on behalf of bodies such as the UN and the EU.This was impossible to sustain. Because politics is fundamental to how a society runs.Brexit, COVID-19, woke over-ideology, mass immigration, and Donald Trump..These were among the big, populist game-changers that rattled the cage of the globalist “rules-based order.” Suddenly, we remembered: Voting matters! Parliaments matter!It is a sign of desperation that Canadian governments have had to resort to the Notwithstanding Clause — simply to carry out policy.As David Warren wrote in the National Post in 2003, “It is thanks to the unamendable 1982 Constitution that the Courts now rule Canada. It took them more than a decade to discover how much power Trudeau’s Charter had given them, and taken away from Parliament.” Religious symbols, medical transitioning of minors, back-to-work legislation, and school choice.These are just some of the areas where the Notwithstanding Clause has been brought to bear.But Alan Blakeney — a father of the Charter and constitutional scholar — was very clear that the Notwithstanding Clause was intended to ensure that the state could, for “economic or social reasons” — or “because other rights were found to be more important — choose to override a Charter-protected right.”There would be instances when “rights collide,” he wrote — but Charter rights are “not more important than other rights.”In 1999, Supreme Court Justice Frank Iacobucci said the Notwithstanding Clause was “welcome” and established “a process of dialogue with the Legislatures.”What happened to dialogue? .It’s certainly not enhanced by the annual “roadshows” undertaken by Supreme Court justices in the name of “transparency,” which usually feature a single, sycophantic news conference, and carefully choreographed “community visit.”That’s “Potemkin Village.”But in real communities, trouble is brewing.A recent Léger poll found that a majority of Canadians believe the justice system is working against law-abiding citizens, fuelling the feeling, “If the law doesn’t respect me, why should I respect the law?”Who can blame them?A University of Alberta law professor recently called the accusation “deeply troubling” that judges make decisions along “partisan lines.”But let’s not forget that three-quarters of judges have donated to the Liberal Party, let alone the great BC Court of Appeal Justice Mary Southin’s comment: “We have known for years that the Charter of Rights would bring political questions into the courts.” Of course, it’s happening.Judges are utilizing the Charter’s Section 7, which encompasses “life, liberty, and security of the person,” to achieve various outcomes. They are empowering child activists to challenge the climate policies of the entire province of Ontario. Additionally, they are preventing the dismantling of homeless encampments until every “unhoused” individual has been provided with housing. Furthermore, they are stopping the removal of bike lanes and the closure of drug consumption sites near preschools.Not political?.According to the MacDonald-Laurier Institute, the $25 million, federally-funded Court Challenges program has subsidized ‘small-L’ liberal causes 96% of the time! It is no surprise that there is a sense of “erosion” when bail has been legislatively skewed in favour of release, private land ownership is suddenly in question, and more than 700 foreign criminals are at large, leading to a surge in violent crime and extortion, with anti-Semitism being a dirty secret. Additionally, a citizen in Windsor, Ontario, was handcuffed, arrested, and charged with trespassing after holding up a sign on a city ice rink that simply read, “You’re required to provide a complete budget.”Rule of law? How about the right to free expression?When judges do speak up these days, they’re usually fretting about Danielle Smith. But for all the prevailing horror about her musings, the counter-question should always be: Has Quebec ever proposed, or done, the same? Consider Quebec’s actions. They effectively bypassed the federal immigration system, utilized the Notwithstanding Clause 33 times and counting, ensured a roster of Supreme Court judges, and held two independence votes.How can we say that we live in a united country when there is such a double standard?And what about NDP Premier, David Eby, a former prosecutor and AG? He recently “lashed out” at judges, “destroying the economy,” after the BC Court of Appeal mandated that governments abide by UNDRIP in all existing legislation. That is tantamount to a veto over major projects.Eby said, “To face such dramatic overreaching and unhelpful court decisions is deeply troubling.”He’s right..But where was the public — let alone judicial — opprobrium over those remarks?When I was in government, the outright repeal of economically harmful federal legislation was my fight, including with the Saskatchewan First Act, to uphold the rule of law. Constitutionally-speaking.I also said that provinces should not accept any federal legislation, such as C-69, that UNDRIP was baked into. Same with the benign-sounding “round tables” the feds were always proposing to provinces — but whose quid pro quo was always adherence to UNDRIP. Same with equivalency agreements. And most MOUs.“Don’t worry,” I was told. “It’s just a non-binding treaty.”Until it wasn’t.If we take the fundamental precept about the pursuit of equal justice to heart, we must question. We must criticize. And be bold. There will always be pressure, by the “Château Clique” — in whatever form — to tow the line. But, as Margaret Thatcher said, “God needs no faint hearts for His ambassadors.”What John A. called the “constitutional spirit” demands more, not less, debate.So, let’s channel Cartier and Macdonald. Rebels with a cause.Fils de la Liberté. O Canada! Mon pays! Mes amours!
