There is a bunch of confusion and/or bad faith arguing going on around just what the federal government said in their factum to the upcoming Supreme Court of Canada hearing on the challenge of Quebec’s Law 21, which they claim is “state secularism” but is really just wholesale discrimination and racism. The reporting hasn’t been great—in fact, the National Post’s is downright misleading—because they keep describing this like it’s a reference question to the Court, which it isn’t, but rather, the argument that they’re putting forward during the existing challenge, and something that they feel the Court should address (which is how factums tend to work).
What their argument consists of is that the Court should be able to declare when a law that is protected by the Notwithstanding Clause is actually unconstitutional. They can’t strike it down, but they can weigh in and say “Yeah, this contravenes Charter rights.” They also want the Courts to be able to do this when something has been ongoing in its use of the Clause (which only lasts for five years before it needs to be renewed in legislation), and to rule on whether it may result in the “irreparable impairment” of rights, because they argue that repeated use of the Clause amounts to “indirectly amending the Constitution.” This is also not coming out of nowhere—the Saskatchewan Court of Appeal just recently ruled that they have this right when it comes to the challenge around the province’s attack on trans youth, saying that invoking the Clause should not be the last word.
Why is this important? Because the point of the five-year time-limit on the Clause is that it allows that government to be voted out before it can be renewed. Having the courts weigh in and say “Yeah, this is discrimination,” even if they can’t strike down the law, is powerful information for voters to have. And it’s absolutely democratic. But you have conservative thinkers who are trying to say that this will cause a “constitutional crisis,” or a national unity crisis if it offends Quebec or Alberta, is frankly absurd. It’s trying to give cover for attacks on minority rights and abuse of the Clause, and they should be honest about those intentions rather than trying to sow confusion and undermining the Court.
Ukraine Dispatch
An overnight Russian attack on the Kirovohrad region has partially cut power and disrupted railway operations. A top Russian commander claims they are advancing on all fronts, in contravention to Ukrainian reports. Ukraine’s anti-corruption agencies say they need more resources to crack down on the “shadow economy.”