00:00:33.140I'm glad to be with you and with your viewers and listeners.
00:00:35.920And there are lots of them waiting to hear from you, John.
00:00:39.020Here in the Western Standard Opinions section,
00:00:42.080I hear a lot of complaints about activist judges.
00:00:46.440That would be people who are supposed to apply the law
00:00:49.780but actually use their judgments to change it.
00:00:53.320That's how they are frequently perceived by the people who complain to me.
00:01:00.080We're talking about things, for instance, like the recent Cowichan decision which seriously impacts property rights in BC or here in Alberta when a single judge substituted a contested medical and parental policy judgment for a statute passed by a government that had just been elected.
00:01:20.720But if you talk to the judges, and I know you do, they'll say that since the Charter of Rights was
00:01:28.400established in 1982, that's what they're supposed to do. They say they interpret the law. It's a
00:01:37.680living tree that grows and changes, and the expectation upon them is that the law will
00:01:45.680change if people's general view of the world changes. They're not originalists. So are they
00:01:55.660actually making this up as they go along, or are they responding to instructors from the Department
00:02:01.700of Justice? What is going on, John? Well, two things. When it comes to activist judges, I wish
00:02:08.160that the judges had been a lot more active during the lockdowns and vaccine passports when the0.95
00:02:15.040Judges turned into rubber stamps and just approved, with very few exceptions, the judges approved all of these tyrannical, utterly unscientific measures that were violating our freedoms of association, expression, religion, conscience, peaceful assembly, and so on.
00:02:35.020And the judges just rubber-stamped it and said, well, you know, the government says that there's a scary virus.
00:02:42.800The government says that the lockdowns are saving lives, so we believe the government.
00:02:48.120And in many cases, they blatantly disregarded evidence that was before them.
00:02:53.600And so we could have used more activist judges during lockdowns and vaccine passports.
00:02:59.340But it is true that these new powers were given to judges in 1982 when Pierre Elliott Trudeau, who was very anti-American, gave us an American-style constitution where judges do have this power to strike down laws.0.55
00:03:17.120And how they go about their business is going to be influenced by their own worldview.
00:03:21.360So if you have a judge who loves individual freedom, who appreciates the free society, they're going to uphold charter rights and freedoms more so than a judge who loves government and believes that government can do no wrong.
00:03:38.120So that's just inevitable that the judge's own ideology is going to influence his or her rulings.
00:03:45.820See, this is why so many of us like the originalist concept.
00:03:50.860I mean, that's an American word, but we go back to the Constitution and carefully read
00:03:55.700it, parse it, look, what was it really trying to say?
00:03:58.280Well, OK, I don't particularly like this, but that's what those are the rules.
00:04:04.000Case dismissed, case closed, whatever.
00:04:06.980And we get the luxury, if it's a luxury indeed, of making it up as we go along.
00:04:14.060Well, you certainly see it in so many rulings where, for example, the Supreme Court within the past year or two declared that it is a fact that there are more than two genders.
00:04:28.860I'm paraphrasing, it was put into a more sophisticated language, but, you know, you cannot get away from judges being influenced by their own beliefs, their own moral beliefs, their own beliefs, their metaphysical beliefs.
00:04:57.960And so whatever beliefs the judge has, they're bound to influence the decision.
00:05:04.900So we need to elect more freedom-minded people who will appoint more freedom-minded judges.
00:05:12.260Well, I don't think I can argue with that other than to say that there still is apparently a desire to not recognize things for what they are.
00:05:23.340I mean, if we'd been having this conversation at the height of the Roman Empire,
00:05:28.420we'd have been smart guys if we agreed that, yes, the emperor was actually a god.
00:05:32.220You know, a human being could be a god.
00:05:35.060So I get the sense that some of our legal eagles are prepared to accept the common line.
00:05:46.800So, John, I mean, okay, I said that, not you.
00:05:49.520Right. The Justice Center has just published a new paper in which you're going into this.
00:05:56.160And you're actually arguing that a defense against judges taking the law out of Parliament's hands, and that's the notwithstanding clause.
00:06:07.920Now, people think that's only for incredibly serious events.
00:06:11.440a nuclear option, as our colleagues in the mainstream press love to call it when they're
00:06:18.320criticizing people for doing it. But that's not what your report is calling it. Can you tell us
00:06:23.240a bit about that? So the notwithstanding clause, section 33, saves democracy and saves us from
00:06:30.220judicial tyranny. And it's a little bit of pushback against Pierre Elliott Trudeau's
00:06:38.340American-style constitution that was when the charter was added to our constitution in 1982,
00:06:45.140giving new powers to judges. So we didn't go all the way insofar as parliament and the
00:06:53.540provincial legislatures can expressly opt out of a court's interpretation of a fundamental freedom.
00:07:00.740So, a practical example, in Ontario, Premier Doug Ford, around 2018, passed a law to reduce the number of city council seats in Toronto from 57 down to 25.
00:07:20.840They had their campaign literature and so on, and all of a sudden, we're going to go from 57 to 25 seats.
00:07:28.080They took it to court and the court rendered this ridiculous ruling saying that this reduction of city council seats violated freedom of expression, which it obviously did not.
00:07:41.760And later on, the Ontario Court of Appeals said, yeah, no, this was not a violation.0.89
00:07:45.980It may have been a bad move or a stupid move, but it did not violate freedom of expression.
00:07:50.340So the Ford government said, we're invoking section 33, we're opting out of the court's interpretation of freedom of expression. And so they got their law through and Toronto now has 25 seats instead of 57.0.95
00:08:05.200Another example in Alberta, an activist judge struck down the Daniel Smith's new policies to protect children from transgender ideology.
00:08:18.320So introducing a requirement for parental consent, banning life altering surgeries for for minors, for for kids under 18.
00:08:28.640And an activist judge said that this violated a child's charter right to keep his parents in the dark about what's happening at school, what's happening with his own body.
00:08:40.100So the Smith government responded appropriately and said, we're using Section 33 to the Notwithstanding Clause to opt out of this woke activist judge interpretation saying that children have a charter right to keep their own parents in the dark.
00:08:59.260So actually, that really wasn't a nuclear option at all.
00:09:02.840That was a, that was the, uh, but look, Doug Ford doesn't seem to have suffered too much
00:09:09.440from the wrath of the people, you know, those people who thought there should be 57 council
00:10:13.120And the government said this is reasonably justified.
00:10:16.120And the judges accepted that without taking a hard look at the evidence.
00:10:21.440Well, I've heard it said that the federal government has never used
00:10:24.200The notwithstanding clause, is that an example of it being used or just being carefully messaged?
00:10:31.040It's only been used by the provinces and in our report, just about every case that it's been used, the same government that used the notwithstanding clause to opt out of a court ruling, that government has been reelected in the subsequent election.
00:10:49.480And that's happened in Quebec, in Ontario, in Saskatchewan, and in Alberta.
00:13:03.400I think what might be an issue in the next provincial election, the next provincial election, the issue will probably be were the teachers treated fairly yes or no? Does the government have good education policies? Yes or no? That's going to be the issue. I don't think people are going to vote on whether it was right or wrong to use it not with standing clause. I think that's a bit of a side issue.
00:13:30.100okay well your paper this one's just published last week I think yes your
00:13:38.020paper treats recent uses the parental consent one that we're talking about for
00:13:44.260example or the names and pronouns restrictions on medical interventions
00:13:48.400for minors back to work laws you go into all of this you know and you're
00:13:54.520treating them as Democrat when there's when the clause has been used you're
00:13:59.780treating them as democratic corrections of judicial readings of a number of, for the sake of the
00:14:09.320listener, we won't number off the, but the constitution says this, and it's challenged
00:14:15.180by a provincial government, and they use the notwithstanding clause to make sure it sticks.0.71
00:14:22.300And opponents say that those are exactly the minority protection cases, and trans is a good
00:14:27.860example of this minority protection cases that the charter was actually written for how do you
00:14:35.460answer the charge that the notwithstanding clause is being used to insulate majorities
00:14:44.900from irritating minorities or minorities that they consider irritating i suppose i should say
00:14:51.960Well, this raises the question, who do you trust more as a group to uphold and to properly interpret Charter Rights and Freedoms, judges or politicians?
00:15:03.520So the British style that we had until 1982 said, Parliament is sovereign, Parliament is supreme.
00:15:10.720If you don't like a law that Parliament passed, then get active in the democratic process and elect different MPs or pressure the current MPs and get a different law.
00:15:20.540Now, the American style that we've adopted largely since 1982 is saying that judges are better at protecting our rights and freedoms than politicians.
00:15:37.880So at the end of the day, I think both groups are fallible.
00:15:43.520I think you would, I think it would be an error to say that, that, you know, judges are necessarily going to do a better job of interpreting charter rights and freedoms when you get this, you know, crazy Alberta judge saying that, that, uh, children have a charter right to keep their own parents in the dark.
00:16:01.040Uh, I would also, I wouldn't, I wouldn't say either that, that, uh, politicians are necessarily, uh, you know, going to do a better job at, at interpreting charter rights and freedoms.
00:16:11.760The notwithstanding clause gives us the flexibility though, which is why it's an important part
00:16:16.740of the constitution. So the courts can, can issue rulings. The elected government can look at it
00:16:21.840and, you know, most of the time they're going to abide by it and say, well, you know, that's,
00:16:27.420that's what the court ruled. In a few cases, they're going to push back. And then the voters
00:16:33.040still have a say. If the voters really disapprove of the government using the notwithstanding
00:16:36.980clause, they can vote that government out of office.
00:16:52.340Whereas, obviously, elected officials are responsible every four years to the electorate.
00:16:59.720So by giving this particular weapon to the elected representatives, your MP or MLA, you actually do keep the citizen who's paying the bill at the basis of the whole thing.
00:17:18.340It's a weapon available to us to use against judicial tyranny.
00:17:22.500Right. We don't want to be in a situation where really there is no democracy because the judges are deciding our immigration policy and they're deciding our criminal law and abortion and capital punishment and health care and taxes. And we're just ruled by judges and our elected representatives become these kind of minions, peons that are operating at a lower level because really the judges are in charge. I don't want that.
00:18:15.260But this is the kind of person who actually does tend to write in and say, judicial activists, look what they've done now, you know, and they can.
00:18:26.360So, look, in your report's closing recommendation, it's cultural as much as legal.
00:18:34.540Treat careful use of Section 33, that's the notwithstanding clause, as evidence of democratic health, not failure.
00:18:42.900What would a mature constitutional culture actually look like in newsrooms, law faculties, and opposition benches?
00:18:54.540What is a justice center's job in building it before the next five-year renewal term runs out?
00:19:05.820Educating the public, and that would include lawyers, judges, law professors.
00:19:52.240The notwithstanding clause is part of the charter and you will sometimes hear
00:19:58.380lawyers, law professors say, well, section 33 is against the charter.
00:20:02.840It's not against the charter. It's, it's part of the charter.
00:20:06.640The notwithstanding clause is part of the charter.
00:20:08.760It's part of the charter. And it was put there at the insistence of a number of premiers who would not have signed on unless that was part of the total package. And so Pierre Elliott Trudeau consented to having the notwithstanding clause.
00:20:26.120So we get kind of a bit of a compromise between the British sovereignty of parliament and the American constitutional democracy where judges can strike down laws and there's no other remedy.