Courts Ignore the Constitution

Vincent J. Curtis

1 Oct 21

RE: Time to pay this overdue debt to indigenous kids.  Hamilton Spectator editorial of 1 Oct 21.

The Federal Court of Canada erred in upholding a decision by the Canadian Human Rights Tribunal to award $40,000 to some 54,000 people for something or other.

The House of Commons of Canada, with the agreement of the Senate, and the consent of the Governor General, has the sole sovereign right in Canada to decide how taxpayers’ money is spent.  If the House, under the guidance of the Prime Minister, Finance Minister, and cabinet, passes a budget no higher authority exists in Canada to compel expenditures higher than those agreed to.

(Tampering with this feudal right cost King Charles I his head.  By 1720, cabinet control of the House of Commons became the principle, and the right to raise taxes by the House and the control of expenditures by the executive became fused constitutionally.  The Canadian constitution is declared to be “similar in principle to that of the United Kingdom.”)

Hence, when the loftily named Canadian Human Rights Tribunal issues some bloke opinion that the budgets passed by the House  were “willfully” and “recklessly” discriminatory against Indigenous children on reserves because they “failed to provide adequate funding for child and family services,” well that’s just too bad.  Budgeting is a practical matter, money isn’t infinite, and choices have to be made.

Nevertheless, the members of the Tribunal, engaging in moral preening that costs them nothing, awarded a cool $2 billion of Canadian taxpayers’ money to private individuals.  As a creature of the Parliament, the CHRT needs to be modest in awarding taxpayer’s money, and in this case, they’ weren’t.

Since reconciliation is the order of the day, the money in this case could be part of a larger, overall settlement package.

We’ll see if the Supreme Court of Canada understands the constitution better than the Federal Court, or the CHRT, or if they too will engage in a power grab.

-30-

NB: There is no concept of sovereign immunity in Canada as there is in America.  At the same time, there is no Marbury v. Madison in Canadian legal history as there is in American.  The SCOC can’t amend the constitution of Canada as the SCOTUS often does in America.  Awarding $2 billion in this case by SCOC would amount to a one time amendment of the Canadian constitution, and it might establish a principle.