00:00:00.000Welcome to Canada's Most Irreverent Talk Show.
00:00:05.480This is the Andrew Lawton Show, brought to you by True North.
00:00:12.780Welcome along. It is Canada's Most Irreverent Talk Show,
00:00:16.360the Andrew Lawton Show, here on True North, Friday, June 16, 2023.
00:00:22.160I had the great privilege last night of attending the JCCF,
00:00:26.280the Justice Centre for Constitutional Freedom's George Jonas Freedom Awards.
00:00:30.980I've been to, I think this was my fourth one.
00:00:33.180I was there at the first one a few years back when Mark Stein was given the award.
00:00:37.800Last night, it went to none other than Jordan Peterson,
00:00:41.240who has done more, I think, to expand the base of people talking about issues of liberty and of free speech
00:00:47.080than many other Canadians, though not for lack of trying, I can assure you.
00:00:51.180He 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.
00:01:09.820And 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.
00:06:04.780We'll set it up. I'm sure I'm at the top of Trudeau's list. Sure.
00:06:07.780If 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.
00:06:34.580I mean, one of the big victories on the Supreme Court in the last couple of years in Canada was
00:06:39.460the Mike Ward case, which was the free speech case involving a Quebec comedian. But that was a
00:06:44.800victory by one vote. It was one single judge. And that judge was, quite frankly, Russell Brown,
00:06:51.460you could say, 5'4", that stood up for something that should have been plain as day, so fundamentally
00:06:56.980simple and easy to adjudicate. So what is the problem? Is the problem that we have a set of
00:07:03.920judges in this country that are not oriented around liberty and around free speech and around
00:07:08.480that strict originalist view of the charter or is the problem the law itself that there's something
00:07:14.080fundamentally structurally wrong in the canadian legal system well i i think both
00:07:22.760we've so our legal system has worked for a good long time you know it's as it's as good
00:07:34.180for periods it's been as good as anything that we've ever seen in the world but it is based upon
00:07:41.060a couple of ideas that work as long as you have people inside the system that believe a certain
00:07:48.100thing and act in a certain way and one of those things is restraint judicial restraint you know
00:07:53.540keeping to your knitting staying in your wheelhouse but we are getting now to the stage where
00:08:00.740that that restraint is well not been there for for a good while and if you look at the very basic
00:08:09.860premises of the system you have two at least two i mean more than two but here's let's here here
00:08:16.580just two basic ideas legislatures are supreme in the sense that they can pass anything they want
00:08:22.260like literally anything if you can write it down they can pass it and people think well hold on
00:08:27.860wait a minute what about the charter the charter is not the foundation of the legal system the
00:08:32.020foundation is legislative supremacy they can do anything they want except those things that the
00:08:39.460court says are unconstitutional now we say all right well we got a constitution it's written
00:08:43.460down in black and white so that's the restraint well yes except that that document has to be
00:08:48.660interpreted by the court and the court can say it means whatever it likes now that's not the theory
00:08:57.860not supposed to do that but in fact the court's power to interpret the constitution is essentially
00:09:03.460unrestrained so you have two institutions that are essentially unrestrained and that works
00:09:11.860for as long as it works but when it starts to not work because the people involved think well
00:09:17.780it's our job to do what we think is right now you're going to start to get into problems and
00:09:23.780and in my opinion that's where we're at i i know that there was i think it was uh what 26 years
00:09:30.980ago now the the famous charter dialogue uh doctrine that started to emerge that you know
00:09:36.180there's this dialogue between the courts and parliament you know parliament puts forward a bill
00:09:40.820the court kicks it back and eventually we perhaps make everyone happy but i i think the flaw with
00:09:46.340that as we see over time is that someone has to have a veto at a certain point when the court
00:09:50.740wants one thing and elected officials want another thing, someone is going to have to
00:09:55.660win out. And Beverly McLaughlin infamously said in one decision, I can't remember what
00:10:00.720case it was, that, you know, Parliament doesn't get to say, it's not a case of if at first
00:10:04.960you don't succeed, try, try again. So she basically thought the Supreme Court should
00:10:08.720be the final authority on things. And I'm curious if you think that will hold, that
00:10:13.900the court will be the ones that get the final say and not democracy itself, not elected
00:10:18.640officials well that's the way it's it's set up to work right now you know given given the
00:10:25.440constitution and the charter uh with respect to those matters that come before it on constitutional
00:10:32.160grounds instead of legislative supremacy we have judicial supremacy and if i you know when i when
00:10:38.080the supreme court makes a final ruling if you know the government doesn't like it there is nothing
00:10:44.240they can do nothing they can do about it uh so in that sense we do actually have the last word
00:10:50.240sitting with the court now as i say that that system worked for a good while and well when
00:10:57.280the court keeps its own purview constrained i guess that's the issue not when they start
00:11:02.080extending expending expanding rather well right except that we are we are talking about this
00:11:06.960through our own lens and if you talk to somebody with a different view they would say well they are
00:11:10.960doing their job you know their the job of the supreme court is to do is to be the final arbiter
00:11:18.000of which social values will prevail those are rosa rosalie abella's work um so so this is a
00:11:25.200this is a a a dispute about what the proper role of the court actually is i mean and keep in mind
00:11:32.640this is not just a view held by the court or its supporters this is also a view held frankly by a
00:11:39.040lot of legislators so one time i was giving evidence before a senate committee and there was
00:11:44.000some dispute about the content of the bill and one of the senators asked well why don't we just pass
00:11:48.560the bill and then send it to the court and have them work it out i said but you're the legislator
00:11:56.080you should at least say what it is that you want the bill to mean instead of avoiding the question
00:12:04.080and then just fobbing it off onto the court but but that's the mentality that that we that a lot
00:12:10.640of people have in this country now that the supreme court ought to be the final arbiter because
00:12:16.560you know they're not political they're not elected they're you know nine wise people sitting up there
00:12:23.440on the bench so they must know what they're doing well they're just ordinary people they're just
00:12:27.200lawyers who've been appointed their political appointments frankly all of them and do you
00:12:32.880really want those nine unelected people being the final arbiter of what the law is in the country
00:12:38.720that's more or less what we have right now there was an interview years ago that beverly mclaughlin
00:12:44.720the former supreme court chief justice gave in which she said that you know her job was to you
00:12:49.760know hear the facts hear the evidence then uh you know go back and decide and her exact words were
00:12:55.200what is, quote, best for society, unquote. And if you're not keenly astute on these things,
00:13:02.900that may sound like a perfectly reasonable thing of, well, absolutely, we want society to be bettered
00:13:08.260through the legal system. But in actuality, what she was describing is exactly what you're
00:13:12.440discussing there, which is a court that wants to not just choose what is legal, but what is optimal.
00:13:18.840And that is not the job. I mean, a court should be, in my view, upholding a very bad,
00:13:24.640ineffective policy if that policy complies with the Constitution.
00:13:29.080Many, many years ago, I happened to be at some kind of a law school banquet when I was a law
00:13:34.200student. And I happened to end up sitting beside Madam Justice Lear de Bay. And I had opportunity
00:13:40.860to ask her while we were chatting, you know, what the most important thing, I was just a law student,
00:13:45.940I forget what year I was in but it was very very early on I was just interested what what what is
00:13:51.780the most important thing that you consider when you're making a decision and and to my surprise
00:13:57.380because I was very green she said uh the the policy you know I my job and I don't want to put
00:14:04.180words in her mouth but essentially she said I regard my job as to is to choose the right policy
00:14:10.500and I was astounded because that the learning with a little learning that I had done so far in law
00:14:15.060school basically said you know you take the law and you find the facts and then you put those two
00:14:19.300things together and those two things will tell you what the answer is supposed to be
00:14:23.140so that was a a new idea for me but it turns out to be a prevailing one in your c2c piece which
00:14:30.580again i think people should definitely read you have a number of these fables that you say the
00:14:35.780the suppositions of the uh of the legal system which of course you you then debunk and one of
00:14:40.820them that i wanted to ask you about which i think is particularly timely with all of the covet
00:14:45.300challenges we've seen over the last few years and we'll continue to see for the next couple fable
00:14:50.420court finds courts find facts with evidence explain what you're talking about there yes well
00:14:56.340so during covet you know a good number of of suits were brought you know challenging this rule or
00:15:04.740that rule or defending tickets or the like uh and the the courts and and not to a court not to a
00:15:12.500judge because you know they all have their own minds but um largely the courts embraced the
00:15:19.220coveted narrative the government had provided and insisted that everything was fine and and
00:15:26.260one of the phenomena that happened in some of those cases was that that judges and this happened
00:15:31.460especially in family law cases where there is a dispute between parents about whether a child
00:15:35.540was going to be vaccinated or not one of the things that some of these courts did was take
00:15:39.860judicial notice of the safety and efficacy of the vaccine now judicial notice is a is a shortcut to
00:15:47.940finding facts without evidence the general rule of course is that any fact you find in the courtroom
00:15:54.420has to be proven with evidence you're not allowed to go outside the courtroom read the newspaper
00:15:58.420look at the sky and see what's going on and decide what the fact is no no you're strained
00:16:03.220to the four walls of the courtroom to what you hear from witnesses but judicial notice is a
00:16:09.380shortcut you can take judicial notice and conclude certain facts if they're so notorious that no one
00:16:14.900would dispute them or you can or you can you can confirm them with with sources of indisputable
00:16:21.060accuracy but in these cases the safety and efficacy of the vaccine was the matter in issue
00:16:26.500and judicial notice is not intended to apply to the issue in the case and yet some judges said
00:16:32.740well i'm just going to take judicial notice of the fact that for you know for this child or for
00:16:36.660children in general the vaccine is safe and effective and the way we go another one of
00:16:42.580your fables and and this one i don't think will surprise people necessarily that uh the fable is
00:16:48.020that judges are impartial and you point out that they're not uh in many cases well i so i think
00:16:55.060they try to be and it's not that they never are it's just that we can see examples where you
00:17:01.460really have to wonder about that about that sort of cultural myth that we insist on that they are
00:17:07.700so the example that i talk about is is is chief justice wagner talking about the convoy at the
00:17:13.060convoy uh the chief justice gave an interview to le devoir where he talked about the convoy basically
00:17:20.020condemned them and suggested that it had to be put down by force now that's a perfectly fine
00:17:25.940opinion if you're just a citizen but you're the chief justice of the whole system and there were
00:17:32.180challenges of course to be brought to the invocation of the emergencies act and and and those
00:17:37.940challenges have now been heard but not decided at the federal court and they could very easily end
00:17:43.380up in front of the supreme court and yet the chief justice had already expressed his view
00:17:47.860about the nature of the protest whether it was right or wrong what should have been done about
00:17:51.860it and so if you were a person involved in that protest you you would be justified in thinking
00:17:58.660well am i really going to get a fair shake if this judge is sitting on the case he's already told me
00:18:02.820what he thinks and that that that conflicts with the the whole idea of being a a an unbiased
00:18:10.740adjudicator with a blank slate who will only base conclusions upon what you hear in the court
00:18:16.980Yeah, 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.
00:18:33.880But in reality, any position that we expect someone to be unbiased or impartial in is really
00:18:39.760a question of how good they are at separating their personal bias from their work. And I would
00:18:44.960agree with you. That's what a judge is supposed to do. You cannot separate judges from the context
00:18:50.260in which they live as human beings. For example, during COVID, judges were living under the same
00:18:56.120laws that we were, the same restrictions that we were. And some of them would have had a variety
00:19:00.960of opinions on that. Some of them would have been fine. I mean, you had judges that were very
00:19:04.380vigilant about enforcing mask mandates in their courtrooms. And, you know, you then you ask the
00:19:09.540question of, well, if you're going in there to fight against mask mandates, how effectively
00:19:13.340are you going to be able to do it? Another one, I think it was one of the bail judges that Tamara
00:19:18.540Leach had, who was discussing the convoy and referred to Ottawa as my city and my community.
00:19:25.180And again, not inaccurate. A judge in Ottawa who lives in Ottawa is not breaking news, but
00:19:30.020it's a little thing that just sort of indicates how much are you bringing in your life and your
00:19:37.640experience and your values rather than just the law and i think there are very subtle ways in
00:19:42.760which this is probably happening yes no i think you put your finger on it though so part of the
00:19:47.620part of the bad trend here i think is that the idea of neutrality
00:19:52.760is instead of instead of neutrality being equivalent to a blank slate as in i have no
00:20:01.060i'm going to do my very best to have no preconceived notions about this yes i'm a human
00:20:07.040being i live in a particular context i'm going to have certain biases like everybody does but
00:20:12.120my role as a judge is to go in and try and ignore those and and start contracting but more and more
00:20:19.380there seems to be a trend i think that new to give neutrality content to give a particular view
00:20:27.860the the the the the the credential of being neutral and by that i mean the progressivism
00:20:36.580is becoming the neutral view at his first press conference uh the chief justice
00:20:44.260as the first press conference as chief justice a reporter asked him whether or not he agreed
00:20:49.380the supreme court was the most progressive court in the world and the chief justice agreed
00:20:58.180with with some pride now if you are suggesting that it's a good thing that your court is a
00:21:05.460progressive court doesn't that mean that right off the bat you are now not neutral
00:21:10.180unless you view progressivism as neutral and that's what i'm that's what i mean
00:21:14.100yeah and i i think this is the problem and what we've seen here is not just people that are you
00:21:21.520know progressive outside the courtroom and then when they sit down it goes to the bare bones of
00:21:26.420what the constitution says and what the law says as we've talked about and and i think this brings
00:21:31.300us to one of your other fables which was the the constitution means what it says there are
00:21:36.740situations in which there is ambiguity in the law and you could have people that in good faith
00:21:41.540debate it and discuss it? What did they mean with this? There are other cases where, and you
00:21:46.620mentioned the Camo case in particular, which for those who don't recall is the guy who lived in
00:21:52.960New Brunswick and wanted to commit the egregious infraction of bringing a case of beer across the
00:21:58.380Quebec-New Brunswick border. And the constitution in this case says that there is to be no
00:22:05.520restriction on interprovincial trade. And this is, again, of all the things that we cannot
00:22:11.440necessarily entirely understand or discern, this one is literally in black and white in ink. And
00:22:17.980yet the court finds it's not actually there. Yeah, this is one of the great things about
00:22:22.820this case, you know, bad great things, is that, as you say, a lot of parts of the Constitution,
00:22:29.640like many statutes, are ambiguous. You know, they're pretty vague, you have to fill in the
00:22:33.500and so on. This particular section, as you allude to, is actually pretty clear. It says this in
00:22:40.040black and white, and yet still the Supreme Court finds a way to say, well, that's not really what
00:22:45.340it means. What it means is this, so as to allow these provincial programs, the monopoly provided
00:22:52.780to the alcohol industry in New Brunswick, for example, in the case that we're talking about,
00:22:57.640can continue so as to ignore the words of the constitution and allow the regulatory state to
00:23:05.080carry on in spite of the statements of the contrary. The thing about this case, I remember
00:23:11.420when it came up and I started following it at some point in the, I don't know, eight or nine
00:23:15.680years it was going on. And I recall it being a very wonky thing because interprovincial trade
00:23:21.620is not an issue that most people think affects them. If you live in one of these towns or
00:23:27.520cities near the border, like Mr. Kamo did, you're obviously more well-versed in this. And I went to
00:23:32.780a conference that the CCF put on in Ottawa, and I said, I'm going to report on it. And I, you know,
00:23:37.780did all this great coverage. And I think like, I don't know, 42 people, you know, followed it or
00:23:41.620anything like that. But I'm of the view that if the Supreme Court can't get the stuff this small
00:23:47.620right, of whether you have a right to buy beer in Quebec and drink it in New Brunswick, they're
00:23:53.080certainly not going to get the big stuff right that involves our fundamental freedoms well yes
00:23:58.700so but this small thing at least through the eyes of the supreme court the beer aspect is small the
00:24:03.720underlying concept is large i agree the concept is large i mean one of the things that the supreme
00:24:08.720court seems to be concerned have been concerned about is that if we if they say that the constitution
00:24:14.700prevents this from happening then you know what are the implications for the administrative state
00:24:19.680You know, all these various programs and restrictions and rules about everything under the sun, are those all in jeopardy?
00:24:26.680And, 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?
00:24:34.680You know, let's just observe this. The administrative state, this nanny state that we have now, is not provided for in the Constitution.
00:24:48.680This large mechanism, multilayered bureaucracy that we have is not provided for in the Constitution.
00:24:55.700Now, the Constitution doesn't prohibit it exactly, but it doesn't provide for it either.
00:25:00.740It's been an evolutionary choice over a long period of time.
00:25:06.080And 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.
00:25:18.680in in the in the face of words that suggest actually the state can't and shouldn't do this
00:25:24.800the Supreme Court said well we can't we can't have that therefore the words don't mean what
00:25:30.560they appear to mean let me ask you though do you believe that the courts should or shouldn't think
00:25:37.200of and evaluate the consequences of its decisions I mean should it be looking at things as a moment
00:25:42.460in time this is what the law says figuring out the details is not our problem or do you think
00:25:47.200courts should, in an ideal world, have to think about the eventualities of what will come from
00:25:52.300their decisions? Well, consequences are a legitimate part of judicial reasoning. I mean,
00:25:57.100it's part of figuring out what the words are supposed to mean, what the words were intended
00:26:02.160to mean. And whenever you have ambiguity in a provision, the courts do have to go through this
00:26:08.840process of deciding what the words are supposed to mean and put them into context. But that's not
00:26:15.720an a an unlimited license just to make stuff out i mean there's a there's a process a set
00:26:21.640of principles that are supposed to apply to this to this this um exercise of of interpretation
00:26:30.040and set the there are rules of statutory interpretation now i've got no problem when
00:26:34.520a court says you know here here are our principles of interpretation that set out in precedence
00:26:40.200and i'm going to apply this principle and that principle here's what we get and so you could
00:26:45.080have disagreement i mean there are lots of situations in which you have a provision that's
00:26:48.920vague enough so that you could come to different conclusions legitimately by applying these
00:26:55.560principles okay so no problem but then there are those situations where well you're just going to
00:27:00.280throw the principles out the window and say well because of the consequences of this interpretation
00:27:04.280we're not going to do that now now you're now you're legislating from the bench now you're
00:27:10.040you know, doing policy instead of interpretation. And of course, all of this is opinion,
00:27:18.080but my opinion is that that's the kind of process that they went through in the Como case.
00:27:22.400Yeah, and it's interesting to compare the court's own decisions against its own decisions. I mean,
00:27:29.080assisted suicide is probably one of the more brazen examples. I mean, not even to weigh in
00:27:33.560on the policy itself, where the Supreme Court can basically assess the same question twice
00:27:39.260and come up with radically different responses to that.
00:30:17.580All right. This is the great thing about live, about live media folks. We'll get
00:30:22.360Bruce back on in a couple of moments here, but I just want to kind of reference one aspect here
00:30:27.900that he brings up, which I think is quite fascinating in that there tends to be in Canada
00:30:33.320this sense that the system is just going to work and that it's going to hold government accountable.
00:30:38.280And oftentimes when courts and parliaments are in tension, which let's be honest is the whole point
00:30:43.960of courts, that's why we have them there because it needs to be a check on legislative power.
00:30:48.480The problem is that you have courts that wish they were legislators and legislatures, and that is the big difference here.
00:30:56.720So, 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.
00:31:10.060But again, they become policymakers, and that's the issue here.