Ford Wins Big. Belobaba Decision an Error in Law: Court of Appeals.

Vincent J. Curtis

19 Sept 3028

The Ford government won big at the Ontario Court of Appeals over the adverse Belobaba decision.  The opinion of the court of appeal closely tracks the argument I gave last week.  They said in essence that maybe Bill 5 sucks, but it doesn’t violate constitutional rights to freedom of expression. They remarked in essence that incumbency is not constitutionally guaranteed.  The panel did not address the issue of standing.

It was a mistake, however, by the Ford government to seek a stay of judgement from the Ontario court of appeals in respect of Bill 5 - while simultaneously proceeding with Bill 31 (essentially Bill 5 preceded by the Notwithstanding Clause.)  It is corrupting both of the legislative process and of the judiciary to have done so.  The proper course of action would have been to pass Bill 31, then proceed with getting the Belobaba decision overturned.

By essentially bargaining with the judiciary over legislation, it creates the false impression that the judiciary somehow have a role in the legislative process.  They do not and must not.  By the court of appeals granting a stay while the promise of halting the use of the Notwithstanding Clause was offered, it makes the judiciary look weak. 

If Bill 31 were passed and the decision against Bill 5 were eventually overturned, then both Bills would be in force until after five years, Bill 31 would lapse.  Nothing practical would change.  If the judiciary withal upheld the Belobaba decision, then the court of appeals wouldn’t be complicit in a four year long violation of the fundamental right to freedom of expression of Toronto voters.

But a stay was granted, and the panel cast grave doubts upon the Belobaba decision, saying it likely erred in law and would likely be overturned on appeal.  There are a lot of politicians and opinion writers who owe Doug Ford and Caroline Mulroney an apology for their immoderate criticism.   Ford and Mulroney were right, and Belobaba was wrong.

What is disturbing is that none of the critics looked at the Belobaba decision itself and asked if it made sense, or not.  But they didn't, because they were part of the #Resistance and all they were looking for was a tong to hammer Ford with.  They talked about "democracy" but the Charter and the Judiciary are limitations on straight majority-rule democracy.  They didn't think about the supremacy of parliament in the British-Canadian system and why the Notwithstanding Clause was put into the Charter.  (Hint: There wouldn't have been a Charter and a patriated constitution in 1982 without a Notwithstanding Clause.)  In short, these leaders of opinion were practically criminally ignorant of the constitution, and they didn't know what they were talking about.

Alls well that ends well.

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Uneducated Savages Attack Ford Government for "Lawlessness."

Vincent J. Curtis

14 Sept 2018

RE: Where are the voices of law and reason in Doug Ford’s cabinet? (The Hamilton Spectator of this date.)

The article written by Martin Regg Cohn was based on a false premise.  The false premise is that the legislation that reduced the size of Toronto City Council was found illegal.  It was not.

The legislation was found unconstitutional, not illegal, and that is a massive difference. (It would be illegal to enforce the legislation in the teeth of its unconstitutionality.)

Cohn also holds that the use of the Notwithstanding Clause is somehow illegal, or at least illegitimate.  Again he is in error on the central point.  The Notwithstanding Clause is the constitutionally prescribed means of making a law constitutional despite some judge’s contrary opinion.  You may not like the law in question, but the action of the Ford government is formally as legal as can be.

Too comfortable in his own opinion, Cohn then goes on to savage Caroline Mulroney, Ontario’s Attorney-General, whom he holds responsible for the “illegal” actions of the Ford government.  Cohn’s script comes directly from Saul D. Alinsky’s Rule 13: “Pick a target, freeze it, personalize it, and polarize it.”  Contemptible.  These tactics are wicked enough when you are right; they are nothing but vicious and savage when you are wrong; and Cohn is wrong.

The world isn’t going to collapse because the size of Toronto’s city council is reduced to 25 from 47 members.  Ontario voted for change last June, and the savages on the Left are waging all-out war to stop change from happening.

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Ontario's own Donald Trump and #Resistance

Vincent J. Curtis

13 Sept 2018

Now that, in Doug Ford, Ontario has its very own Donald Trump, it has to have its very own #Resistance.

Where America has District Court judges vetoing Executive Orders of its newly elected president covering the entire United States, Ontario has to have judges vetoing ordinary Acts of its newly elected legislature, now controlled by our very own Donald Trump.

We even have our own Hillary Clinton.  Andrea Horwath is practically foaming at the mouth over the overriding in the constitutionally prescribed manner of an attempted judicial veto.  I thought she opposed the elites and supported democracy.  How would she act if socialism were declared unconstitutional in a Toronto courtroom?

Justice Edward (Rocky) Belobaba made a decision that calls into question legal reasoning.  But never mind,  He made a decision the #Resistance can use to hammer our very own Donald Trump, and we are treated to scenes reminiscent of the confirmation hearings of Judge Brett Kavanaugh in the course of that hammering.

In a brief return to lucidity, columnist Thomas Walkom charitably described Belobaba’s decision as “whimsical” where fallacious is the apt term.  Explaining how the fundamental right of a citizen of Toronto to freedom of expression is changed by whether the size of city council is 25 or 47 brings legal reasoning into disrepute.

The progressive cause in Ontario needs to get a life.  Ford isn’t Trump.  Ontario can’t be its own little United States.  The sky isn’t going to fall if Toronto council has 25 instead of 47 members.  But it will matter if the judiciary is used to thwart conservatives, defend a progressive agenda, and call into question the purpose of voting for something else.

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Ontario's Incompetent & Irresponsible Judiciary

Vincent J. Curtis

12 Sept 2018

The need of the recently elected Ford government to invoke the Notwithstanding Clause is the direct consequence of the incompetence and irresponsibility of the judiciary.

The fundament right of a citizen of Toronto to freedom of expression is in no way changed by the fact that the number of city councillors is 25 or 47.  It is absurd to hold otherwise.  If there is anyone inconvenienced by the reduction in the size of Toronto city council it is those 22 who are left without an incumbency.  But incumbency is a privilege, not a right guaranteed them under the Charter.

In taking up a legal case of this nature, there first arises the question of standing.  Is the person bringing the suit actually harmed?  On the face it, the fundamental right to freedom of expression by an individual is not changed by changing the number of representatives on city council.  An individual is still free to say whatever he or she wants.  But there was no battle for standing to bring suit, and by accepting the suit, the judge was more than half way along to siding with the Resistance.

The Constitution Act unambiguously places responsibility for municipal affairs in the hands of the provincial legislatures.  If there is misgovernance at the city level, it is the responsibility of the provincial legislature to fix it.  In political matters such as these, it is not the place of the judiciary to second guess the provincial legislature and its accountable government.  That is how democracy works – through elected representation.

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Mel Hurtig Lives!

Vincent J. Curtis

11 Sept 2018

RE: Protecting our culture essential to fighting off ‘Americanization.’(The Hamilton Spectator, written by Heather Mallick.)

Mel Hurtig was a vocal and active Canadian nationalist, and Liberal,  big on Canadian culture and notoriously anti-American.  John Crosby, MP, famously dismissed Hurtig as an "encyclopedia peddler"  Hurtig was publisher of The Canadian Encyclopedia.

The political left in Canada can’t seem to keep its moral imperatives straight.  I put it down to weak-mindedness.

Yesterday, we were treated to the ‘Canada is a cultural salad bowl’ argument, and the moral imperative was for the government to make the salad more diverse faster.  To inspire the world.  What it meant to be Canadian wasn’t answered and is unanswerable, since no one component of a salad is the essence of being a salad.  A salad is a mixture of things, not a single thing.  If there is some domestic Canadian culture, it is merely one component among many, of no more value than any other.  Perhaps even less treasured than any other.

Today, the moral imperative is for the government to protect “our culture” against Americanization, in the NAFTA talks.  What culture would that be?  If “our culture” is a salad, in which every component is of equal value to any other what does it matter if the salad takes on a greater American flavor?  Unless, in the hierarchy of cultures, American culture is ranked even lower than the domestic Canadian one, while all other cultures are ranked higher.  The lowest ranking of American culture in the salad calls for an explanation.

That explanation is found in money.  The benefactors of Canada’s cultural industry stand to lose if American business take over.  Can you imagine if Fox News took over the CBC, it is asked?  One can only dream, and it would be awfully tough for the tired faces presently on CBC.

There is no reconciling the salad bowl idea with protection against adding another component or from one component becoming disproportionate - except through the common idea of the ranking of cultures.  A process yet to be explained.

Mel Hurtig is dead, but his ideas occasionally emerge in spastic fits on the left.

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Canada as a cultural salad bowl

Vincent J. Curtis

10 Sept 2018

RE: Diversity in Canada has the capacity to inspire the world (The Hamilton Spectator, written by Olga Stachova)

This article is an example of starry-eyed foolishness and bad analysis reaching transparently ridiculous conclusions.

The conclusion that “diversity in Canada has the capacity to inspire the world” is patently ridiculous.  Disregard the fallacy that diversity has a capacity.  There is nothing about Canadian values that is going to inspire countries like Afghanistan, Saudi Arabia, Zimbabwe, Brazil, Sweden, France, Russian, China, or the United States.  Japan, China, Turkey, Vietnam, and Morocco, would look with disdain and horror at Canadian style “diversity.”

There is nothing about Canada’s immigration policies and the concomitant embrace of “cultural diversity” that will inspire the world.

The unasked question in the article is, what does it mean to be Canadian if Canada is a cultural salad bowl?  There is no unifying theme in a salad except for all being in a particular bowl.  Each component is something that isn’t a salad.  Hence, when the author says that “Canadians seem to be shying away from providing hope….”, she is saying, in the first place, that a mixture is single thing.  And that the present salad bowl is saying that it doesn’t want to take on any more components, get larger more rapidly, or get disproportionate in any one component.

Somehow, this reasonable request of the current salad bowl is concerning, and Canadian leadership is called to continue to be “strong custodians of Canada’s pluralistic identity.”  Since Canada is already held to have a pluralistic identity it does not follow that being a strong custodian places a moral obligation on the current salad bowl to get larger, become disproportionate, or take on more components.

This article highlights the confusion inherent in the “Canada is a salad bowl” argument.

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