John Carpay did not come on Hannaford this week to deny that judges interpret the Charter. He came to say they do so as ideologues, not oracles – rubber stamps when Ottawa locked the country down, activists when the file is gender or property – and that the controversial Notwithstanding Clause exists so the people who pay the costs of government can still overrule them…. Thank heavens..After all, how should you feel when a judge declares aboriginal title over the land your home stands on, as was the case with last year’s Cowichan title decision hanging over fee-simple homes in British Columbia?.Perhaps you feel as many people do who contact the Western Standard about “activist judges.” They usually have a particular file in mind: For rather obvious reasons, Cowichan was especially controversial. But so too was the Alberta justice who set aside a freshly elected government’s statute on parental consent and medical transitions for minors..UCP says notwithstanding clause must be used to protect families, children, and fair play.The complaint is always the same. The bench was asked to apply the law and instead rewrote the policy. Where did they get the idea that this was their job?The unexpected answer according to John Carpay, president of the Justice Centre for Constitutional Freedoms and tonight’s guest on Hannaford, is the late prime minister Pierre Trudeau, father of the recently departed Justin Trudeau..Given Trudeau-pere’s antipathy to the US, it is deeply ironic that it was him who imported to Canada an American-style judicial power to strike statutes. Yet so it was, when amid the patriation of the Canadian Constitution from Great Britain in 1982, Trudeau insisted upon an American-style Charter of Rights.What Carpay will not accept is the mystique that has gathered around it. He condemns the idea that once a court has spoken democracy is finished, and that the power the Constitution clearly grants provinces to reject a ruling is just an unusable “nuclear option” rather than an eminently usable clause that made provincial agreement to the Charter possible at all.His organisation’s new report, ‘Saving Canada from Juristocracy: How the Charter’s Notwithstanding Clause Protects Democracy,’ therefore treats s. 33 as a designed check, not a scandal..Premiers would not have signed in 1982 without an override. So, Trudeau consented. The clause protects legislation for five years and must then be renewed in public. Thus are the interests and preferences of voters protected; change is possible but may come slowly.And the public seems to like it that way. In Quebec, Ontario and Saskatchewan, governments that have used the Notwithstanding Clause have generally been sent back to office.The contrast Carpay draws is institutional. Judges sit to age 75. Politicians can be thrown out. That, Carpay says, is why s. 33 the Notwithstanding Clause, is evidence of democratic health: most of the time governments swallow a ruling; sometimes they refuse a judicial reading of a right and risk the political cost.He is equally willing to indict the bench for passivity. In the lockdown years, courts accepted the government’s epidemiology and its claim that emergency measures were “demonstrably justified” under Section 1 of the Constitution, often without an exhaustive consideration of the evidence. Ideology – what a judge thinks government is for, what a human being is, how many sexes there are, for example – also leak into the reasons..Is there a remedy? Yes, says Carpay, electing people who appoint different judges.Meanwhile, so is using the clause the premiers extracted as the price of the Charter.In a judgment years ago, then-Chief Justice Beverley McLachlin held that “ ‘frozen concepts’ reasoning runs contrary to one of the most fundamental principles of Canadian constitutional interpretation: that our Constitution is a living tree which, by way of progressive interpretation, accommodates and addresses the realities of modern life.”Perhaps. What that arboreal formula does not decide is who pays for the pruning. Section 33’s virtue is that the taxpayer, through people who can be fired, may still say: not us.The Hannaford Show is uploaded at seven o’clock tonight.
