Juno News - On C2C： Who really governs Canada？

00:00:00.000 Let's take a look at the bigger picture. I always like doing that from time to time,

00:00:13.020 especially in this country. And when it comes to legal matters anyway, there are few people,

00:00:18.680 in fact, I'd say probably no one better to do it with than Bruce Party, who is the executive

00:00:24.160 director of Rights Probe and also a professor that is probably worth anyone in law going to

00:00:31.560 Queens just so they have a chance at getting Bruce Party as a prof. Bruce, good to talk to you. Thanks

00:00:35.920 for coming on today. Great to see you, Andrew. Thank you. That's very kind of you. You had this

00:00:40.400 great piece in C2C Journal, Canada's constitutional mistake, how the rule of law gave way to the

00:00:47.600 managerial state. And normally with these sorts of things, I do like a bit of a windup before I bring

00:00:52.580 the guest on. But I actually thought it would be more prudent here to let you describe what is

00:00:58.040 your thesis here? What is it you're saying? Okay, here's the core of the idea. We've gone through

00:01:05.580 centuries of legal and political reform, starting in England, to go back to the original problem.

00:01:14.300 The original problem was these kings who ruled for centuries. And some of the kings were bad and some

00:01:21.760 kings were better. But essentially, the kings had absolute power. Whatever they said was the law. 0.79

00:01:28.600 And then slowly, starting perhaps with the Magna Carta in 1215, we started this long process

00:01:36.960 of taking power away from the king and giving it to legislatures. And eventually, we got to the stage

00:01:45.260 in the British system of arriving at this idea called legislative supremacy, meaning the legislature

00:01:52.680 is supreme, not the king. The legislature can enact any laws that it wants, because after all,

00:01:58.100 it has democratic legitimacy. But the problem was this, that legislatures turned out that they could

00:02:06.520 be tyrannical as well as kings. And then the Americans came along. And the newly independent

00:02:12.720 Americans said, okay, we're going to fix this problem as well. We're going to enact a bill of

00:02:17.360 rights. And they put that in their constitution. And then 200 years later, we did the same thing in

00:02:21.940 Canada with the Charter of Rights. So what they did was take power away from legislatures

00:02:26.820 and give it to the courts. Problem is that the courts now kind of abuse their power by doing

00:02:35.480 policy and making decisions that are not based upon the text and the living tree and all these

00:02:40.260 kinds of things. You'll hear people complain about this all the time. So here's the problem.

00:02:45.300 All we've done from the very beginning is move power around from place to place to place to place,

00:02:53.220 from king to legislature to courts, and now from courts and legislatures back to, if you like,

00:03:00.380 the king in the form of the administrative state. And so we proceed with this idea that the final word

00:03:08.580 has to rest somewhere, but nowhere seems to work. And that's the mistake. The mistake is,

00:03:16.040 instead of moving power around, we should have taken power away. So that the power

00:03:23.160 rests with us individually. It's a fascinating thesis. And I'm glad I had you explain it because

00:03:29.820 you did it so eloquently there. And what strikes me when you describe that there and also in your

00:03:35.580 essay in C2C Journal is that at every stage, we've been told that the shift is to give power

00:03:42.500 to the people. When power is taken from the king and given to legislatures, going back to running

00:03:47.360 me to Magna Carta, it's because, oh, well, the legislators are the representatives of the people.

00:03:50.900 When it's taken away and you have a constitution. I mean, the sales pitch from the founding fathers

00:03:55.800 of the United States, and I believe them to, with my knowledge of history, be authentic in this desire

00:04:00.760 was that we need to put a constraint on the state's power. But you cannot do that without an

00:04:07.120 intermediary, without an adjudicator. And that's where we go to the courts. Now, I'd say in the

00:04:11.740 United States, the courts have done a better job at keeping to the intent of the constitution. But

00:04:16.780 in Canada, we have the opposite. I mean, the quote that I bring up from our former chief justice from

00:04:22.360 time to time, Beverly McLaughlin, is where she described in her memoir, her job as being to take

00:04:27.100 a step back and hear the facts of the case, and then decide what's best for society, which is

00:04:32.140 actually more dangerous than just letting the legislature have free reign, I think, is to have

00:04:36.640 someone who for whom there is no accountability, trying to really, by very definition, socially

00:04:42.820 engineer. So we have this libertarian utopia that we seek of wanting individuals to be sovereign.

00:04:50.320 How is that possible?

00:04:52.680 Right. So if you start with the opposite premise, so the premise that we have now essentially is that

00:05:00.520 the state, and the state comprised of these various institutions, legislatures, courts, and

00:05:05.420 administration, that the state has the authority to govern. And these various branches of the state

00:05:14.100 are supposed to act as checks and balances on each other, but they're all basically on the same page

00:05:18.160 now. So they don't really act as checks and balances very effectively anymore. So the opposite premise

00:05:22.600 would be, instead of authority of those who govern, it would be the consent of those who are governed.

00:05:32.340 And by that, I mean, not the will of the majority. I don't mean consent as a group. I don't mean by vote

00:05:39.940 or referendum. I mean, every person gets to give their individual consent to be subject to laws. Now,

00:05:48.720 if we're going to premise the system on consent, you start with that idea, which means, by definition,

00:05:56.780 if you like, that no one, whether you're a fellow citizen or the state, can impose force against you.

00:06:05.380 They can't coerce you. And that becomes the first rule of the legal system. No force, no coercion,

00:06:11.760 no threat of force. And then from that, we get all kinds of rules about theft and battery and assault

00:06:18.800 and all those lots of things that we already know and love in our legal system. But then once you get

00:06:25.420 beyond that rule, then for all the other rules that have nothing to do with force, each of those laws

00:06:33.700 requires the individual consent of each individual citizen, without which those citizens are not

00:06:40.520 subject to those laws. Now, that's a radically different system. And people will obviously have

00:06:46.360 lots of questions. And, and, and understandably so, and those questions can be worked out.

00:06:53.080 But let's not throw away the idea just because it's strange, because it needs to be strange,

00:06:58.780 because the system we have right now, isn't working very well.

00:07:04.840 I think there might be some minor steps that have been I don't want to say missed, but really sub steps

00:07:11.780 that have taken place in this trajectory that you explain. And one of them that I studied in

00:07:16.340 school, and I should probably have Ted Morton on the show to talk about it, is the establishment

00:07:21.160 of what I mean, you're well aware of it, he called the court party, which was basically courts becoming

00:07:25.860 overly deferential to social justice groups and activists. And this was like the 1990s that he

00:07:32.200 wrote this. And I think the problem has gotten much worse since then. So you even have within that

00:07:37.080 this subcategory of disproportionate weight being given to special interest groups, which has, I guess,

00:07:43.240 fallen under the banner of the judiciary. And I wonder if the next stage of this, the where we're

00:07:49.060 heading is not necessarily rule by the mob, but but rule to this, this even more obscure and malleable

00:07:57.920 group that is really embedded in the courts embedded into the political class embedded into the bureaucracy,

00:08:05.020 which, I mean, at its core is really DEI.

00:08:09.980 Sure. Yes. Well, we would say we we have a we have a huge managerial state problem, the way I would put it.

00:08:18.680 And the bureaucracy and well, frankly, all three of the bureaucracy, the courts and the legislatures

00:08:25.100 are are working together. Essentially, I don't mean that they don't have their disputes and quarrels.

00:08:30.980 They do. And I don't say I'm not saying that the courts never overturned decisions of the legislature

00:08:36.920 and or the bureaucracy. That's not true either. But in a general sense, in a broad sense,

00:08:42.380 they all fundamentally agree, believe in the need to manage society. And they all work towards that end.

00:08:52.020 And so you're not going to have a genuine check and balance from any of these outfits.

00:08:58.860 So you can you can see the way people react to bad decisions when a court makes one of these

00:09:04.320 creative decisions based upon the living tree or, you know, interpretation of the words that the words

00:09:12.320 don't really seem to reflect, then they'll complain about the courts having power and fair enough.

00:09:16.800 But then, you know, when legislatures say that they're going to invoke the notwithstanding clause,

00:09:23.340 they react kind of the same way, which is, well, the legislature is abusing my charter rights

00:09:28.740 and I want the court to have the final say. But you just finished saying that the court wasn't doing

00:09:32.960 a very good job. And then when we have a bureaucracy, bureaucracy making the final call, like during

00:09:38.760 COVID, you know, you'll wear a mask here and take a vaccine there and so on. People complain that

00:09:43.560 the bureaucracy is making the calls and not the legislature. OK, well, come on, people make up

00:09:48.980 your mind. The problem is there is no good answer to this. They're all also it's where they want the

00:09:55.180 outcome and they don't really care how they get to the outcome. So there's no desire to be consistent

00:10:00.840 on when they want legislative supremacy and when they want judicial supremacy. It's whatever gets them

00:10:06.360 where they want to go. See, you are getting now to the nub of the difference between what the law

00:10:12.860 actually is and what it actually does compared to what it's thought to do. So one could go so far

00:10:19.340 as to say this. The role of the law in society, maybe, maybe, is not reasoning to a result.

00:10:28.940 It's justifying a result that they want to reach. And those two things are quite different.

00:10:35.520 And we may be giving the law too much credit for being, you know, objective and solid and immovable

00:10:42.320 and and and immune to the currents of cultural change. It's an institution. It's none of those

00:10:49.560 things. It's this it's it's liable to be influenced by culture in the same way that any other of our

00:10:55.180 political institutions are. And so we have to acknowledge the reality of the way the thing works.

00:11:00.700 I think there are and you and I have spoken about this in the past, some structural issues in how

00:11:06.700 Canada's Charter was created. This idea of having the Section One, which really nullifies much of the

00:11:13.240 rest of the Charter, the notwithstanding clause itself is problematic. And I say that to contrast

00:11:18.200 it with the United States, which has had a I think their Bill of Rights is a much stronger and more

00:11:24.180 rigid document. But but even so, the problems between the two are, I think, the same in that,

00:11:30.040 you know, I used to look at the U.S. Constitution in a much more favorable light than I do now,

00:11:35.060 not because the document itself is flawed. But as my friend Mark Stein says, waving it around in the

00:11:40.040 air doesn't really get you all that much. And and that's when we we go to the point that all of

00:11:45.060 these things are not worth the paper they're printed on, literally, if you don't have institutions

00:11:49.960 that are upholding them. And we've seen that the institutions are not as rooted in what they need

00:11:56.080 to be. And I guess the question that I fear asking about is, can that come back?

00:12:02.680 Well, the point that you made about the U.S. Constitution is quite right, I think, in many

00:12:06.240 respects. I mean, I think it has fared better as of right now than the Canadian Charter has. But

00:12:10.580 it's not been a straight line. I mean, like the Canadian Charter, the American Bill of Rights has

00:12:15.000 been subject to digital interpretation, which is waxed and waned over time. And some of the decisions under the

00:12:19.820 U.S. Bill of Rights have not been decisions that you and I would like over time. So yes,

00:12:25.200 your point is quite right, that it depends upon the institutions who are applying it,

00:12:28.420 which makes the point that the document itself does not govern. It's the people who are making

00:12:34.080 the decisions who govern. And and that, you know, it's a funny thing, because people instinctively

00:12:40.660 understand that they make jokes about it, you know, depends upon the judge, I get. But there's

00:12:44.880 actually more truth to that than they think. And you can't. Language has inherent ambiguities.

00:12:52.900 And so the idea that we're going to fix the Charter or fix the Bill of Rights by simply

00:12:57.960 drafting it better, you know, more precisely. Now, don't get me wrong. There are some really

00:13:02.140 vague provisions in the cart in the Charter that could have been done much better. But nevertheless,

00:13:06.000 it's unlikely that you can ever draft a document that compels every single answer for every case

00:13:14.960 under the sun. It doesn't work that way. So you're going to have to acknowledge the fact

00:13:18.640 of the ambiguity and acknowledge the idea that the way the system runs is, in fact,

00:13:25.200 going to depend upon the ideas and the heads of the people who run the institutions.

00:13:28.980 So we have then two problems, one of which is, can the law be? Well, I guess they're all really

00:13:37.000 coming under this one question, which is, can the law be safeguarded against people? And it's ironic

00:13:43.740 that the law, which at its core, we want to be there to protect people, is, you know, still being

00:13:50.200 weaponized by another group of people, whether you want to call them the elites, the state, the

00:13:54.040 institutions, the courts, whatever the case is. And it's a very strange dilemma, because at its core,

00:14:00.580 we're back to the original problem we have, in a way, which is that there is the need to save people

00:14:07.960 from other people. And there isn't really the answer to how to do that. Well, so it's funny you

00:14:14.820 should put it that way. Because if you if you like, you can contrast the two competing ideas this way,

00:14:20.680 you can say, look, if we stuck to the idea that the that the role of the law and the courts and so

00:14:27.560 on, was to save people from other people from the interference of other people, if we all agreed

00:14:32.440 about that, then we might not have such a big problem. But we don't agree about that. The other

00:14:39.160 competing purpose that a lot of people think that the law should serve is to protect people from

00:14:45.880 themselves to put rules in place to prevent people from making their own decisions about their own

00:14:52.280 lives, because other smarter people think, oh, that's not a very good idea. You know, for my money,

00:14:58.300 that's a terrible thing. But, but a lot of people thoroughly believe that, you know, I've said that

00:15:03.800 those people who think they believe in liberty, need to come to two epiphanies, not one, but two.

00:15:10.240 And the first one is easy. And the second one is not. The first one is, well, I don't want to be

00:15:15.760 told what to do. That's, that's easy. Anybody can come to that conclusion. But the second one is,

00:15:22.720 I don't want to tell other people what to do. Even though I think I'm more challenging. Yeah. Until

00:15:30.320 you get until you get there. And until you get the people inside the system running our governments

00:15:35.440 to believe that as well, then you're going to have a problem.

00:15:40.400 And, and that is where I, you know, the, the one little bit of hope that I try to find in all of

00:15:44.640 this is that there's always the hearts and minds approach is that, you know, none of the what's on

00:15:49.200 paper, what's in the institutions doesn't matter if people are behaving the way we need people to. And

00:15:55.040 that is embracing freedom, embracing free speech, embracing the ability to self govern in this sense.

00:16:01.840 So, uh, it was a very, very thoughtful piece. It's in C2C journal. You can read it for yourself,

00:16:06.160 and I would encourage you to do so. Canada's constitutional mistake, how the rule of law gave

00:16:11.040 way to the managerial state. Bruce Party, always a delight. Thanks for coming on today. Great to see

00:16:16.320 you, Andrew. Thank you. Thanks for listening to the Andrew Lawton Show. Support the program by donating to

00:16:21.280 True North at www.tnc.news.

Juno News - June 01, 2024

On C2C： Who really governs Canada？

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