tag:blogger.com,1999:blog-42332149134304039.post5038629302580135865..comments2024-01-09T07:00:00.851-05:00Comments on The Spectacled Avenger: A Canadian ViceJamie Pratthttp://www.blogger.com/profile/00467349253439645488noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-42332149134304039.post-73425334794082919002011-12-13T09:45:11.966-05:002011-12-13T09:45:11.966-05:00Third, regarding your argument about references as...Third, regarding your argument about references as a way to “prevent fundamentally bad laws from being passed” – we need to be clear on what are “bad laws”. I hope a bad law is not simply a law that you or I happen to disagree with. I think a bad law must be defined as a law that is “UNCONSTITUTIONAL”. And in our system the way we do this is through judicial review. A reference case is not the same thing as judicial review, for the various reasons outlined in my original post.<br /><br />Furthermore, suppose a government wants to pass legislation it suspects might not pass constitutional muster. It can pot the case in a trumped-up hypothetical and submit it to the SCC for a reference, and generate the answer it wants. Or, it could simply pass the legislation without a reference and risk it being shot down in subsequent judicial review, through a REAL challenge. That to my mind is the best way to handle fundamentally bad laws. That is why we have a constitution which includes judicial review.<br /><br />In short, I just can’t find anything supporting the legitimacy of reference cases. They can do a lot of bad, and what little good they do is already provided for in our constitution.Jamie Pratthttps://www.blogger.com/profile/00467349253439645488noreply@blogger.comtag:blogger.com,1999:blog-42332149134304039.post-45499665573603534102011-12-13T09:44:54.049-05:002011-12-13T09:44:54.049-05:00Hi MFS,
First, should the government really be “d...Hi MFS,<br /><br />First, should the government really be “disengaging from touchy subjects”? After all, isn’t a government ideally elected to grapple with tough issues and provide leadership? There’s no doubt that what you describe is actually happening. That’s precisely what I meant by the “chilling effect”: defusing a situation without actually solving it (e.g. the Quebec secession reference). That doesn’t mean it’s a good thing.<br /><br />Second, should a government really be enacting social legislation it knows lacks legitimacy among Canadians (no matter how noble you or I might think it is)? Sounds more like trying to do an end-run around public discourse. If the gov’t wants to legalize e.g. gay marriage, then they should simply DO IT. Then the legislation can be tested in court. If they’re afraid they’ll be voted out of office, then that’s a risk they should live with if they’re committed to their legislative agenda. They shouldn’t be trying to have their cake (passing controversial legislation) and eating it too (avoiding the consequences of so legislating). I’m not sure how, as you put it, this “expands the realm of liberty”.Jamie Pratthttps://www.blogger.com/profile/00467349253439645488noreply@blogger.comtag:blogger.com,1999:blog-42332149134304039.post-4619425193076559332011-12-12T15:51:04.237-05:002011-12-12T15:51:04.237-05:00Well, I should think that every political culture ...Well, I should think that every political culture has its devices for governments to creatively disengage from touchy subjects. In Canada, there's reference cases and Royal Commissions. I think we have to consider this in the context of being a political tool.<br /><br />I don't know the historical context very well, but it seems to me that in the post-<i>Charter</i>/Liberal hegemony era, the Reference Case was a tool to enact social legislation while taking less political heat — same-sex marriage being the prime example there.<br /><br />From your perspective, then, shouldn't this be celebrated, as it's a tool by which to expand the realm of "liberty" in the face of majoritarian discomfort?<br /><br />And second, couldn't the practice be defended as a method of preventing fundamentally bad laws from being allowed to pass? If, as above, one of the main parts of a Reference is basically pre-clearing things past the <i>Oakes</i> test, wouldn't you rather that overly-restrictive laws get tossed out before they can have negative impacts on individuals?<br /><br />Not that there aren't other uses for the procedure. Again, I could be wrong here, but it seems like this has been a tool that's not in the employ of the Conservative gov't.Mechanical Forest Soundhttps://www.blogger.com/profile/11591173844557539619noreply@blogger.com