Juno News - On C2C： Can Canadian law be saved？

00:00:00.000 Welcome to Canada's Most Irreverent Talk Show.

00:00:05.480 This is the Andrew Lawton Show, brought to you by True North.

00:00:12.780 Welcome along. It is Canada's Most Irreverent Talk Show,

00:00:16.360 the Andrew Lawton Show, here on True North, Friday, June 16, 2023.

00:00:22.160 I had the great privilege last night of attending the JCCF,

00:00:26.280 the Justice Centre for Constitutional Freedom's George Jonas Freedom Awards.

00:00:30.980 I've been to, I think this was my fourth one.

00:00:33.180 I was there at the first one a few years back when Mark Stein was given the award.

00:00:37.800 Last night, it went to none other than Jordan Peterson,

00:00:41.240 who has done more, I think, to expand the base of people talking about issues of liberty and of free speech

00:00:47.080 than many other Canadians, though not for lack of trying, I can assure you.

00:00:51.180 He just captured a few years ago this perfect moment and explained some of these issues so eloquently and so passionately that he has continued on and has had this meteoric rise, but still was willing to stand up there at the JCCF dinner and accept that award and give a tremendous talk.

00:01:09.820 And I know some of you listening in came up and said that they had a great time and a few of you had very kind things to say about the show.

00:01:16.320 So I thank you very much for that.

00:01:18.060 And I also saw Bruce Party, who is no stranger to many of you on this program.

00:01:23.220 He is a law professor at Queen's University, the executive director of Rights Probe, and

00:01:28.700 also the author of a fascinating essay in C2C Journal, which has become a very good

00:01:34.940 friend and supporter of True North.

00:01:37.400 The piece is called Legal Canons and Social Fables.

00:01:41.140 The law in Canada has never been perfect, but now it is losing its way.

00:01:45.720 And it talks about a lot of the key themes of the legal field in Canada that I think we need to tackle as a society.

00:01:52.820 But before we get into that, I just want to briefly mention, I think I talked about it earlier in the week on the show,

00:01:58.740 the resignation slash retirement of Supreme Court Justice Russell Brown,

00:02:04.160 who, if you read Supreme Court decisions, has been a often underappreciated breath of fresh air,

00:02:11.300 oftentimes one of just a couple of people pushing back against these incursions on civil liberties

00:02:17.360 that we see from the Supreme Court of Canada, and due to rather bizarre allegations and accusations

00:02:24.040 that were weak, and even if they were accepted at face value, I don't think would carry the

00:02:29.460 punishment of being judicial misconduct. He has found himself now no longer on the bench,

00:02:35.300 another vacancy on the Supreme Court, which Justin Trudeau will get to fill, his sixth judge

00:02:40.980 of nine on the bench. And what that means for the legal field and justice in Canada,

00:02:46.540 we can talk about as well. But we'll get to all that. Bruce Party joins me now. It's good to talk

00:02:51.240 to you again, Bruce. Thanks for coming on today. Andrew, thanks for the invitation.

00:02:55.960 Let's actually talk about the Russell Brown aspect for a moment here before we get into it,

00:03:00.480 because he was very much a minority on the Supreme Court, even among justices appointed

00:03:05.960 by Stephen Harper. Many of them ended up ruling against liberty, against free speech in a couple

00:03:11.340 of cases. What do you take from his ousting, if I can call it that, which I think is an accurate

00:03:17.940 way of putting it? Well, I mean, I'm very sorry to see him go. He, I think, was one of the best

00:03:29.060 minds on the court uh for for for the time that he was there people call him a conservative judge

00:03:35.780 but that's not to give him enough credit he he was a you know that would that would be to pigeonhole

00:03:41.700 him in an artificial way he was a just a just a solid judicial thinker a a judge who who took his

00:03:52.500 restrained rules seriously in the sense that the two traditions, the two competing traditions are,

00:04:02.160 you know, judges do policy and they do what they think is right and they interpret the

00:04:06.500 Constitution as a living tree and so on. And the other philosophy is, no, judges are there to do

00:04:11.360 a restrained job. They apply the law as it's written. They interpret the text. And sure,

00:04:16.300 sometimes there's ambiguity in the text, but we're supposed to be doing a judicial rule so that this

00:04:21.060 idea of separation of powers that deserve and and and brown was was was extremely good at

00:04:27.780 understanding that philosophy and applying it um and so we we owe him a great debt on the court

00:04:35.700 uh for his time on the court he he contributed uh far beyond the the time that he had available

00:04:43.300 on it both both in this in dissent and he dissented uh with with great courage but also he managed to

00:04:49.380 persuade his colleagues to follow him sometimes in creating a judgment that was the majority

00:04:56.540 and a good one. So it's a great law. And then you look moving forward at

00:05:02.880 one more vacancy. There is no convention in Canada where you try to replace someone

00:05:09.260 with someone who's going to think in a very similar way. And, you know, we look at the

00:05:13.040 appointments that Justin Trudeau has made or recommended to the bench. And there are people

00:05:18.240 who, and I know you're in a law society, so you're not allowed to speak ill of other lawyers. I can,

00:05:23.540 but I'll spare you having to listen to it for now. But they have not been the best picks, I would

00:05:28.880 say. Well, for my money, for the kind of jurist that I would favor having on the court, someone,

00:05:40.340 frankly, with Brown's approach and features in terms of his philosophy, I completely agree.

00:05:48.740 And the likelihood that we will get somebody like that next time, don't put your money on it.

00:05:55.560 Are you available, by the way? I can start a letter writing campaign. Bruce Party for the

00:05:59.740 Supreme Court. Sure, sure. Okay, good. Everyone, BrucePartyForTheSupremeCourt.com.

00:06:04.780 We'll set it up. I'm sure I'm at the top of Trudeau's list. Sure.

00:06:07.780 If called upon, you will serve. Well, let's segue from there into the bigger picture aspects here. And you and I have often had conversations about a variety of issues on this show and off air. And the problem is, as much as I enjoy talking to you, I always end up very depressed after we've had a conversation because you take a very cynical view of things. And I don't think you can be faulted for that because you look around and there's great reason for cynicism.

00:06:34.580 I mean, one of the big victories on the Supreme Court in the last couple of years in Canada was

00:06:39.460 the Mike Ward case, which was the free speech case involving a Quebec comedian. But that was a

00:06:44.800 victory by one vote. It was one single judge. And that judge was, quite frankly, Russell Brown,

00:06:51.460 you could say, 5'4", that stood up for something that should have been plain as day, so fundamentally

00:06:56.980 simple and easy to adjudicate. So what is the problem? Is the problem that we have a set of

00:07:03.920 judges in this country that are not oriented around liberty and around free speech and around

00:07:08.480 that strict originalist view of the charter or is the problem the law itself that there's something

00:07:14.080 fundamentally structurally wrong in the canadian legal system well i i think both

00:07:22.760 we've so our legal system has worked for a good long time you know it's as it's as good

00:07:34.180 for periods it's been as good as anything that we've ever seen in the world but it is based upon

00:07:41.060 a couple of ideas that work as long as you have people inside the system that believe a certain

00:07:48.100 thing and act in a certain way and one of those things is restraint judicial restraint you know

00:07:53.540 keeping to your knitting staying in your wheelhouse but we are getting now to the stage where

00:08:00.740 that that restraint is well not been there for for a good while and if you look at the very basic

00:08:09.860 premises of the system you have two at least two i mean more than two but here's let's here here

00:08:16.580 just two basic ideas legislatures are supreme in the sense that they can pass anything they want

00:08:22.260 like literally anything if you can write it down they can pass it and people think well hold on

00:08:27.860 wait a minute what about the charter the charter is not the foundation of the legal system the

00:08:32.020 foundation is legislative supremacy they can do anything they want except those things that the

00:08:39.460 court says are unconstitutional now we say all right well we got a constitution it's written

00:08:43.460 down in black and white so that's the restraint well yes except that that document has to be

00:08:48.660 interpreted by the court and the court can say it means whatever it likes now that's not the theory

00:08:57.860 not supposed to do that but in fact the court's power to interpret the constitution is essentially

00:09:03.460 unrestrained so you have two institutions that are essentially unrestrained and that works

00:09:11.860 for as long as it works but when it starts to not work because the people involved think well

00:09:17.780 it's our job to do what we think is right now you're going to start to get into problems and

00:09:23.780 and in my opinion that's where we're at i i know that there was i think it was uh what 26 years

00:09:30.980 ago now the the famous charter dialogue uh doctrine that started to emerge that you know

00:09:36.180 there's this dialogue between the courts and parliament you know parliament puts forward a bill

00:09:40.820 the court kicks it back and eventually we perhaps make everyone happy but i i think the flaw with

00:09:46.340 that as we see over time is that someone has to have a veto at a certain point when the court

00:09:50.740 wants one thing and elected officials want another thing, someone is going to have to

00:09:55.660 win out. And Beverly McLaughlin infamously said in one decision, I can't remember what

00:10:00.720 case it was, that, you know, Parliament doesn't get to say, it's not a case of if at first

00:10:04.960 you don't succeed, try, try again. So she basically thought the Supreme Court should

00:10:08.720 be the final authority on things. And I'm curious if you think that will hold, that

00:10:13.900 the court will be the ones that get the final say and not democracy itself, not elected

00:10:18.640 officials well that's the way it's it's set up to work right now you know given given the

00:10:25.440 constitution and the charter uh with respect to those matters that come before it on constitutional

00:10:32.160 grounds instead of legislative supremacy we have judicial supremacy and if i you know when i when

00:10:38.080 the supreme court makes a final ruling if you know the government doesn't like it there is nothing

00:10:44.240 they can do nothing they can do about it uh so in that sense we do actually have the last word

00:10:50.240 sitting with the court now as i say that that system worked for a good while and well when

00:10:57.280 the court keeps its own purview constrained i guess that's the issue not when they start

00:11:02.080 extending expending expanding rather well right except that we are we are talking about this

00:11:06.960 through our own lens and if you talk to somebody with a different view they would say well they are

00:11:10.960 doing their job you know their the job of the supreme court is to do is to be the final arbiter

00:11:18.000 of which social values will prevail those are rosa rosalie abella's work um so so this is a

00:11:25.200 this is a a a dispute about what the proper role of the court actually is i mean and keep in mind

00:11:32.640 this is not just a view held by the court or its supporters this is also a view held frankly by a

00:11:39.040 lot of legislators so one time i was giving evidence before a senate committee and there was

00:11:44.000 some dispute about the content of the bill and one of the senators asked well why don't we just pass

00:11:48.560 the bill and then send it to the court and have them work it out i said but you're the legislator

00:11:56.080 you should at least say what it is that you want the bill to mean instead of avoiding the question

00:12:04.080 and then just fobbing it off onto the court but but that's the mentality that that we that a lot

00:12:10.640 of people have in this country now that the supreme court ought to be the final arbiter because

00:12:16.560 you know they're not political they're not elected they're you know nine wise people sitting up there

00:12:23.440 on the bench so they must know what they're doing well they're just ordinary people they're just

00:12:27.200 lawyers who've been appointed their political appointments frankly all of them and do you

00:12:32.880 really want those nine unelected people being the final arbiter of what the law is in the country

00:12:38.720 that's more or less what we have right now there was an interview years ago that beverly mclaughlin

00:12:44.720 the former supreme court chief justice gave in which she said that you know her job was to you

00:12:49.760 know hear the facts hear the evidence then uh you know go back and decide and her exact words were

00:12:55.200 what is, quote, best for society, unquote. And if you're not keenly astute on these things,

00:13:02.900 that may sound like a perfectly reasonable thing of, well, absolutely, we want society to be bettered

00:13:08.260 through the legal system. But in actuality, what she was describing is exactly what you're

00:13:12.440 discussing there, which is a court that wants to not just choose what is legal, but what is optimal.

00:13:18.840 And that is not the job. I mean, a court should be, in my view, upholding a very bad,

00:13:24.640 ineffective policy if that policy complies with the Constitution.

00:13:29.080 Many, many years ago, I happened to be at some kind of a law school banquet when I was a law

00:13:34.200 student. And I happened to end up sitting beside Madam Justice Lear de Bay. And I had opportunity

00:13:40.860 to ask her while we were chatting, you know, what the most important thing, I was just a law student,

00:13:45.940 I forget what year I was in but it was very very early on I was just interested what what what is

00:13:51.780 the most important thing that you consider when you're making a decision and and to my surprise

00:13:57.380 because I was very green she said uh the the policy you know I my job and I don't want to put

00:14:04.180 words in her mouth but essentially she said I regard my job as to is to choose the right policy

00:14:10.500 and I was astounded because that the learning with a little learning that I had done so far in law

00:14:15.060 school basically said you know you take the law and you find the facts and then you put those two

00:14:19.300 things together and those two things will tell you what the answer is supposed to be

00:14:23.140 so that was a a new idea for me but it turns out to be a prevailing one in your c2c piece which

00:14:30.580 again i think people should definitely read you have a number of these fables that you say the

00:14:35.780 the suppositions of the uh of the legal system which of course you you then debunk and one of

00:14:40.820 them that i wanted to ask you about which i think is particularly timely with all of the covet

00:14:45.300 challenges we've seen over the last few years and we'll continue to see for the next couple fable

00:14:50.420 court finds courts find facts with evidence explain what you're talking about there yes well

00:14:56.340 so during covet you know a good number of of suits were brought you know challenging this rule or

00:15:04.740 that rule or defending tickets or the like uh and the the courts and and not to a court not to a

00:15:12.500 judge because you know they all have their own minds but um largely the courts embraced the

00:15:19.220 coveted narrative the government had provided and insisted that everything was fine and and

00:15:26.260 one of the phenomena that happened in some of those cases was that that judges and this happened

00:15:31.460 especially in family law cases where there is a dispute between parents about whether a child

00:15:35.540 was going to be vaccinated or not one of the things that some of these courts did was take 0.99

00:15:39.860 judicial notice of the safety and efficacy of the vaccine now judicial notice is a is a shortcut to

00:15:47.940 finding facts without evidence the general rule of course is that any fact you find in the courtroom

00:15:54.420 has to be proven with evidence you're not allowed to go outside the courtroom read the newspaper

00:15:58.420 look at the sky and see what's going on and decide what the fact is no no you're strained

00:16:03.220 to the four walls of the courtroom to what you hear from witnesses but judicial notice is a

00:16:09.380 shortcut you can take judicial notice and conclude certain facts if they're so notorious that no one

00:16:14.900 would dispute them or you can or you can you can confirm them with with sources of indisputable

00:16:21.060 accuracy but in these cases the safety and efficacy of the vaccine was the matter in issue

00:16:26.500 and judicial notice is not intended to apply to the issue in the case and yet some judges said

00:16:32.740 well i'm just going to take judicial notice of the fact that for you know for this child or for

00:16:36.660 children in general the vaccine is safe and effective and the way we go another one of

00:16:42.580 your fables and and this one i don't think will surprise people necessarily that uh the fable is

00:16:48.020 that judges are impartial and you point out that they're not uh in many cases well i so i think

00:16:55.060 they try to be and it's not that they never are it's just that we can see examples where you

00:17:01.460 really have to wonder about that about that sort of cultural myth that we insist on that they are

00:17:07.700 so the example that i talk about is is is chief justice wagner talking about the convoy at the

00:17:13.060 convoy uh the chief justice gave an interview to le devoir where he talked about the convoy basically

00:17:20.020 condemned them and suggested that it had to be put down by force now that's a perfectly fine 0.99

00:17:25.940 opinion if you're just a citizen but you're the chief justice of the whole system and there were

00:17:32.180 challenges of course to be brought to the invocation of the emergencies act and and and those

00:17:37.940 challenges have now been heard but not decided at the federal court and they could very easily end

00:17:43.380 up in front of the supreme court and yet the chief justice had already expressed his view

00:17:47.860 about the nature of the protest whether it was right or wrong what should have been done about

00:17:51.860 it and so if you were a person involved in that protest you you would be justified in thinking

00:17:58.660 well am i really going to get a fair shake if this judge is sitting on the case he's already told me

00:18:02.820 what he thinks and that that that conflicts with the the whole idea of being a a an unbiased

00:18:10.740 adjudicator with a blank slate who will only base conclusions upon what you hear in the court

00:18:16.980 Yeah, and I think that's a fair distinction. I mean, everyone has a bias. Journalists have bias. Judges have bias. And anyone who says that bias does not exist in them or in others, I think is delusional. And I think they probably have a view that their position is neutral and everyone else is biased.

00:18:33.880 But in reality, any position that we expect someone to be unbiased or impartial in is really

00:18:39.760 a question of how good they are at separating their personal bias from their work. And I would

00:18:44.960 agree with you. That's what a judge is supposed to do. You cannot separate judges from the context

00:18:50.260 in which they live as human beings. For example, during COVID, judges were living under the same

00:18:56.120 laws that we were, the same restrictions that we were. And some of them would have had a variety

00:19:00.960 of opinions on that. Some of them would have been fine. I mean, you had judges that were very

00:19:04.380 vigilant about enforcing mask mandates in their courtrooms. And, you know, you then you ask the

00:19:09.540 question of, well, if you're going in there to fight against mask mandates, how effectively

00:19:13.340 are you going to be able to do it? Another one, I think it was one of the bail judges that Tamara

00:19:18.540 Leach had, who was discussing the convoy and referred to Ottawa as my city and my community.

00:19:25.180 And again, not inaccurate. A judge in Ottawa who lives in Ottawa is not breaking news, but

00:19:30.020 it's a little thing that just sort of indicates how much are you bringing in your life and your

00:19:37.640 experience and your values rather than just the law and i think there are very subtle ways in

00:19:42.760 which this is probably happening yes no i think you put your finger on it though so part of the

00:19:47.620 part of the bad trend here i think is that the idea of neutrality

00:19:52.760 is instead of instead of neutrality being equivalent to a blank slate as in i have no

00:20:01.060 i'm going to do my very best to have no preconceived notions about this yes i'm a human

00:20:07.040 being i live in a particular context i'm going to have certain biases like everybody does but

00:20:12.120 my role as a judge is to go in and try and ignore those and and start contracting but more and more

00:20:19.380 there seems to be a trend i think that new to give neutrality content to give a particular view

00:20:27.860 the the the the the the credential of being neutral and by that i mean the progressivism

00:20:36.580 is becoming the neutral view at his first press conference uh the chief justice

00:20:44.260 as the first press conference as chief justice a reporter asked him whether or not he agreed

00:20:49.380 the supreme court was the most progressive court in the world and the chief justice agreed

00:20:58.180 with with some pride now if you are suggesting that it's a good thing that your court is a

00:21:05.460 progressive court doesn't that mean that right off the bat you are now not neutral

00:21:10.180 unless you view progressivism as neutral and that's what i'm that's what i mean

00:21:14.100 yeah and i i think this is the problem and what we've seen here is not just people that are you

00:21:21.520 know progressive outside the courtroom and then when they sit down it goes to the bare bones of

00:21:26.420 what the constitution says and what the law says as we've talked about and and i think this brings

00:21:31.300 us to one of your other fables which was the the constitution means what it says there are

00:21:36.740 situations in which there is ambiguity in the law and you could have people that in good faith

00:21:41.540 debate it and discuss it? What did they mean with this? There are other cases where, and you

00:21:46.620 mentioned the Camo case in particular, which for those who don't recall is the guy who lived in

00:21:52.960 New Brunswick and wanted to commit the egregious infraction of bringing a case of beer across the

00:21:58.380 Quebec-New Brunswick border. And the constitution in this case says that there is to be no

00:22:05.520 restriction on interprovincial trade. And this is, again, of all the things that we cannot

00:22:11.440 necessarily entirely understand or discern, this one is literally in black and white in ink. And

00:22:17.980 yet the court finds it's not actually there. Yeah, this is one of the great things about

00:22:22.820 this case, you know, bad great things, is that, as you say, a lot of parts of the Constitution,

00:22:29.640 like many statutes, are ambiguous. You know, they're pretty vague, you have to fill in the

00:22:33.500 and so on. This particular section, as you allude to, is actually pretty clear. It says this in

00:22:40.040 black and white, and yet still the Supreme Court finds a way to say, well, that's not really what

00:22:45.340 it means. What it means is this, so as to allow these provincial programs, the monopoly provided

00:22:52.780 to the alcohol industry in New Brunswick, for example, in the case that we're talking about,

00:22:57.640 can continue so as to ignore the words of the constitution and allow the regulatory state to

00:23:05.080 carry on in spite of the statements of the contrary. The thing about this case, I remember

00:23:11.420 when it came up and I started following it at some point in the, I don't know, eight or nine

00:23:15.680 years it was going on. And I recall it being a very wonky thing because interprovincial trade

00:23:21.620 is not an issue that most people think affects them. If you live in one of these towns or

00:23:27.520 cities near the border, like Mr. Kamo did, you're obviously more well-versed in this. And I went to

00:23:32.780 a conference that the CCF put on in Ottawa, and I said, I'm going to report on it. And I, you know,

00:23:37.780 did all this great coverage. And I think like, I don't know, 42 people, you know, followed it or

00:23:41.620 anything like that. But I'm of the view that if the Supreme Court can't get the stuff this small

00:23:47.620 right, of whether you have a right to buy beer in Quebec and drink it in New Brunswick, they're

00:23:53.080 certainly not going to get the big stuff right that involves our fundamental freedoms well yes

00:23:58.700 so but this small thing at least through the eyes of the supreme court the beer aspect is small the

00:24:03.720 underlying concept is large i agree the concept is large i mean one of the things that the supreme

00:24:08.720 court seems to be concerned have been concerned about is that if we if they say that the constitution

00:24:14.700 prevents this from happening then you know what are the implications for the administrative state

00:24:19.680 You know, all these various programs and restrictions and rules about everything under the sun, are those all in jeopardy?

00:24:26.680 And, you know, do we have to defend and protect the administrative state from this constitutional provision so as not, you know, let the world collapse?

00:24:34.680 You know, let's just observe this. The administrative state, this nanny state that we have now, is not provided for in the Constitution.

00:24:48.680 This large mechanism, multilayered bureaucracy that we have is not provided for in the Constitution.

00:24:55.700 Now, the Constitution doesn't prohibit it exactly, but it doesn't provide for it either.

00:25:00.740 It's been an evolutionary choice over a long period of time.

00:25:06.080 And yet it has, if you read this decision in a particular way, it has become, if you like, a constitutional ideal that's higher than the words of the document itself.

00:25:18.680 in in the in the face of words that suggest actually the state can't and shouldn't do this

00:25:24.800 the Supreme Court said well we can't we can't have that therefore the words don't mean what

00:25:30.560 they appear to mean let me ask you though do you believe that the courts should or shouldn't think

00:25:37.200 of and evaluate the consequences of its decisions I mean should it be looking at things as a moment

00:25:42.460 in time this is what the law says figuring out the details is not our problem or do you think

00:25:47.200 courts should, in an ideal world, have to think about the eventualities of what will come from

00:25:52.300 their decisions? Well, consequences are a legitimate part of judicial reasoning. I mean,

00:25:57.100 it's part of figuring out what the words are supposed to mean, what the words were intended

00:26:02.160 to mean. And whenever you have ambiguity in a provision, the courts do have to go through this

00:26:08.840 process of deciding what the words are supposed to mean and put them into context. But that's not

00:26:15.720 an a an unlimited license just to make stuff out i mean there's a there's a process a set

00:26:21.640 of principles that are supposed to apply to this to this this um exercise of of interpretation

00:26:30.040 and set the there are rules of statutory interpretation now i've got no problem when

00:26:34.520 a court says you know here here are our principles of interpretation that set out in precedence

00:26:40.200 and i'm going to apply this principle and that principle here's what we get and so you could

00:26:45.080 have disagreement i mean there are lots of situations in which you have a provision that's

00:26:48.920 vague enough so that you could come to different conclusions legitimately by applying these

00:26:55.560 principles okay so no problem but then there are those situations where well you're just going to

00:27:00.280 throw the principles out the window and say well because of the consequences of this interpretation

00:27:04.280 we're not going to do that now now you're now you're legislating from the bench now you're

00:27:10.040 you know, doing policy instead of interpretation. And of course, all of this is opinion,

00:27:18.080 but my opinion is that that's the kind of process that they went through in the Como case.

00:27:22.400 Yeah, and it's interesting to compare the court's own decisions against its own decisions. I mean,

00:27:29.080 assisted suicide is probably one of the more brazen examples. I mean, not even to weigh in

00:27:33.560 on the policy itself, where the Supreme Court can basically assess the same question twice

00:27:39.260 and come up with radically different responses to that.

00:27:43.800 You know, once in the Rodriguez case

00:27:45.140 and then more recently in Carter.

00:27:47.480 And then, but even on a shorter timeframe,

00:27:49.800 I mean, healthcare is one that came up recently

00:27:51.680 where in Quebec, the Chayouli case,

00:27:54.580 the Supreme Court of Canada says basically,

00:27:56.460 yes, you have a right to private access to healthcare.

00:27:58.780 And then in British Columbia,

00:28:01.620 you have courts going a very different direction on this.

00:28:05.440 I mean, you know, years and years of litigation

00:28:07.740 and ultimately uh saying yeah shaoli doesn't apply here so two different provinces two different laws

00:28:14.060 yeah two different laws and two different two different charters in fact so quebec has its

00:28:18.460 own provincial charter not a part of the constitution but nevertheless was the basis

00:28:22.220 for the truly a decision but all of this i think reveals a a larger truth if you like which which

00:28:31.100 is that, you know, one of these cultural fables that we're talking about with respect to the

00:28:39.580 legal system is that legal decisions are arrived at through a logical reasoning process. And

00:28:47.460 the counter view, I prefer to use the word skeptical than cynical, but nevertheless,

00:28:54.440 the skeptical view is that actually we're talking about something else. And that something else is

00:29:00.480 really could be seen from, if you like, an anthropological point of view, which is the law

00:29:06.080 and the system is a, if you like, is a social ritual, an institutional ritual. It's political

00:29:14.700 language to provide legitimacy to political decisions. And as long as we go through the

00:29:20.420 ritual of the court process and reasoning and we have a statute and everybody does the job that

00:29:26.820 they're assigned to do, then it doesn't matter what the outcome is because we've given its

00:29:31.560 ritualistic approval and therefore everything is fine. And that's nothing to do with the content.

00:29:36.620 So it's an elaborate set of institutional marks to provide cultural legitimacy to a political outcome.

00:29:48.300 Now, I've plucked out a few of the fables that stood out to me, but I'll let you

00:29:52.800 pick your favorite here, perhaps the one that you feel is the most misunderstood

00:29:57.120 that we haven't touched on? Well,

00:30:01.000 the one, one of the ones, oh, I'm sorry about that. I'm going to have to shut up. 0.80

00:30:10.540 See, you're getting your Supreme Court appointment.

00:30:13.080 Sure. So, excuse me.

00:30:17.580 All right. This is the great thing about live, about live media folks. We'll get

00:30:22.360 Bruce back on in a couple of moments here, but I just want to kind of reference one aspect here

00:30:27.900 that he brings up, which I think is quite fascinating in that there tends to be in Canada

00:30:33.320 this sense that the system is just going to work and that it's going to hold government accountable.

00:30:38.280 And oftentimes when courts and parliaments are in tension, which let's be honest is the whole point

00:30:43.960 of courts, that's why we have them there because it needs to be a check on legislative power. 1.00

00:30:48.480 The problem is that you have courts that wish they were legislators and legislatures, and that is the big difference here.

00:30:56.720 So, for example, when you have the law itself saying, yes, you can have trade that is interprovincial and you can bring trade from one province into the other, that is supposed to be.

00:31:10.060 But again, they become policymakers, and that's the issue here.

00:31:13.320 I think we have Bruce back.

00:31:15.220 Bruce, was that your appointment call from the prime minister?

00:31:17.440 Are you on the bench?

00:31:18.480 i didn't open it i didn't know oh okay we'll find out afterwards but but you asked about about the

00:31:24.340 these other fables and so let's go to the one that that that i think people have internalized

00:31:32.060 most deeply without really even thinking about it which is this idea that justice is blind

00:31:37.180 i mean and you can even see it in the statues if you look at the statues of lady justice

00:31:42.020 often she has a blindfold on and she has scales and the whole idea is that people are going to

00:31:48.280 be assessed and the law is going to be applied to them without regard to who they are their

00:31:52.980 personal circumstances are irrelevant everything is is is again neutral in the sense of identity

00:31:59.260 your identity doesn't matter and you know that idea as much as any other idea is going by the

00:32:07.620 wayside. We had a, and this is not the only one, but we had a decision of the Ontario Human Rights

00:32:14.140 Tribunal last fall that basically came out and said in black and white, no, no, white people

00:32:22.720 can't claim discrimination. In other words, white people can be discriminated against. In other

00:32:28.460 words, we have now a regime of the law that says different rules apply depending upon your race

00:32:36.380 or your gender or your sex or your disability or your religion that's the territory we're now

00:32:44.620 entering into and you can see this arising in various different contexts under the human rights

00:32:50.920 codes of the provinces under the equality provision of the charter uh under the support

00:32:55.860 programs that are promulgated by a government under look at indigenous sentencing guidelines

00:33:00.640 that your sentencing in cases of criminal conviction

00:33:04.880 should be laxer because you are indigenous. 1.00

00:33:08.380 Well, not as a matter of course,

00:33:10.360 what the Supreme Court has said,

00:33:11.760 but certainly there is a process

00:33:14.660 for differentiating the punishment

00:33:17.680 depending upon the group that you belong to

00:33:20.280 and the experience that that group identity has provided.

00:33:24.360 And so, yes, we can no longer proceed

00:33:29.000 indeed safe in the assumption that we're going to be treated exquisitely equally regardless of

00:33:35.360 the person that we are. The essay is fantastic and again it I think identifies a number of the

00:33:42.840 problems but let's try to end on a bit more of a forward-looking note if we can here and the

00:33:48.320 question that I sort of envisioned coming into this was can it be saved and what would need to

00:33:53.160 happen for the Canadian legal order to be saved? Well, I think that the, the simple answer would

00:33:59.860 be to, to return to this very fundamental idea of the separation of powers and that the people

00:34:06.940 in the system would embrace it as, as well, we, to be fair, that idea has been eroding for a long

00:34:15.620 time, a long time. This is not just the, you know, past few years, this has been on the road for a

00:34:20.120 long time but if if we would go to go back to that because after all separation of power the idea

00:34:24.620 here is this legislatures pass rules the executive uh enforces rules rules carries those those those

00:34:32.600 rules out and the courts apply the rules to particular cases and that is the rule of law

00:34:38.480 because it protects us from the concentration of power in any one person or branch of the state

00:34:44.640 If we have that, then we're all safe.

00:34:46.880 If we don't have that, then you're liable to be subject to the arbitrary preferences

00:34:52.240 of one of these persons or agencies, and that's not what we want.

00:34:58.440 But if the people involved in the system would embrace that idea, again, afresh,

00:35:04.380 and say, all right, each of these branches have a different role,

00:35:08.340 and the three shall never mix, never meet, but that's going to be a very difficult

00:35:13.760 ask because the administrative state is based upon the mixing it's based upon the delegation

00:35:21.360 of powers to it so that it can make all the rules and the regulations and the directives and the

00:35:26.320 orders and the policies and so on we've entered into a different era of government the the ideas

00:35:34.800 like separation of powers is is still talked about it's still praised but it's not applied

00:35:41.360 aside nearly as seriously as it ought to be. The piece in C2C Journal, Legal Canons and Social

00:35:49.480 Fables, The Law in Canada, has never been perfect, but now it is losing its way. And I think if we

00:35:55.880 put that up on the screen there, people will be able to see it for themselves. Do go and read it

00:35:59.700 at c2cjournal.ca. Bruce Party, the Executive Director of Rights Probe, always good to talk to

00:36:05.680 you. Hopefully you'll come back on once you're on the Supreme Court there, Bruce. But thank you very

00:36:11.060 much thanks for having me andrew always good to talk to you all right always good to talk to you

00:36:15.120 as well thank you for that and thanks again to those of you i had the chance to chat with last

00:36:20.540 night i also had the chance to speak to jordan peterson who told us uh how big a fan he is of

00:36:26.440 the work true north is doing so i thank jordan peterson for that we'll have to get him on the

00:36:30.840 show i interviewed him uh several years ago on my old show that i did before here and admittedly he

00:36:37.100 has gotten like continued to get more and more and more famous and important since then. I went

00:36:42.800 up like a little bit since then, but he shot like way up. But it was still nonetheless great to chat

00:36:48.160 with him and his lovely wife again. So all of you, we will talk to you next week with more of

00:36:52.600 Canada's most irreverent talk show. And I was hoping to have a promo to play for you now. I

00:36:57.840 don't have a promo, but we'll post something over the weekend. We have a great interview coming up

00:37:03.280 next week, a full hour sit down with Tamara Leach, in which she finally breaks her silence 0.92

00:37:09.360 free of some of the really restrictive bail conditions that were preventing her from speaking

00:37:13.660 out and have made it difficult to actually have a sit down with her in the past. So we will have

00:37:18.620 that for you next week. Stay tuned for that. Have a good weekend, everyone. Thank you. God bless

00:37:22.680 and good day to you all. Thanks for listening to The Andrew Lawton Show. Support the program

00:37:28.200 by donating to True North at www.tnc.news.

Juno News - June 16, 2023

On C2C： Can Canadian law be saved？

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