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Today was the day of the first definitive fall first: I saw the first returning junco. Some day in the last couple of weeks will have been the first day the hummingbirds were gone.
Like everyone else in Ontario, I'm sure, I spent my morning reading court decisions. A few thoughts:
1. It was a mistake for Belobaba to find that Bill 5 impaired the s. 2(b) rights of voters by impairing the effectiveness of their representation--a matter on which his reasoning seems to have nothing to do with the timing of the legislation. The government, obviously, would argue that voters are more effectively represented under the 25-ward scheme. The government's argument may be wrong, but it would not (necessarily) be unreasonable, and this seems clearly the sort of question on which there is room for reasonable political disagreement that the courts have no business adjudicating. I think it's a mistake not just because it's incorrect, but also because it makes it look like Belobaba is grasping at straws, which undermines his credibility.
2. I think the Court of Appeals is wrong in its argument that Belobaba incorrectly reads s. 2(b) in light of s. 3, which does not apply to municipal elections, when he argues (much more persuasively) that Bill 5 infringes the 2(b) rights of candidates. Belobaba is not arguing that municipal elections are subject to 3 or to 2(b) in conjunction with 3; he is arguing that the reasoning by which the Supreme Court established that 2(b) is to be read in conjunction with 3 in Libman (1997) also applies to municipal elections. Paragraph 47 of Libman, which is the one cited by Belobaba, says that campaign spending limits prevent damage to candidates' ability to communicate effectively, which is necessary for the exercise of the voting rights guaranteed by s. 3 (and maybe also equality rights guaranteed by s. 15). The question Belobaba is answering is what is a relevant impairment of expression in this case. The Court of Appeals says that nothing about Bill 5 stops candidates from saying whatever they want, and that nothing about it has "erased" what they have already said. This represents a narrow, "negative" view of freedom of expression: your expression rights are impaired if and only if you are prevented by use of coercive force from expressing yourself. Belobaba is arguing that Libman establishes that, at least where elections are concerned, the negative view, or at least a purely negative view, is inappropriate: the law needs to establish conditions under which candidates are able to communicate effectively, and not just refrain from preventing candidates from communicating effectively. Unfortunately for Belobaba's argument, the relevant part of Libman does not invoke 2(b) explicitly--and in fact it doesn't invoke 3 explicitly, either. So while I think the Court of Appeals' rebuttal of Belobaba on this point--which is the point on which the whole case hinges--is incorrect, I think it still can be reasonably argued that the precedent Belobaba invokes is not really there (whereas the Court of Appeals appears to assume with Belobaba that it is there, but argues that it is irrelevant to municipal elections).
3. The arguments of both Belobaba and the Court of Appeals more or less state outright that there is no legal limit to the power of provincial governments to do as they like with the structure of municipal governments except for readings of certain sections of the Constitution which constitutional conservatives (by which I just mean people who favour narrow readings of constitutions) might describe as "creative". The Court of Appeals, taking a more constitutionally conservative position than Belobaba, seems to more or less suggest that there is no legal limit at all to the power of provincial governments to do as they like with the structure of municipal governments, which leaves one to wonder how it would respond if, for instance, the province moved to change the rules in Bill 5 fashion the week before an election--or, to put a sharper point on it, the week after. What if, immediately after a municipal election, the province moved to abolish council altogether, effective immediately? If in fact there is no constitutional bar to that ... then there obviously should be! And there so obviously should be that this seems to be the kind of case where unwritten constitutional conventions have to hold sway--especially since, given the practical impossibility of amending the Constitution post-Charlottetown, there is no practical way to explicitly remedy this oversight in the written Constitution. Much as Bill Davis said about the use of the notwithstanding clause in Bill 31, this is the kind of thing that is not explicitly disallowed because no one imagined anyone doing such a thing. There are no explicit constitutional provisions against provinces arbitrarily changing the rules of municipal elections during election campaigns because who does that?
4. The fact that nobody knew how either Belobaba or the Court of Appeals would rule, and that nobody knows how the Supreme Court will rule if it gets there, speaks to a touchy kind of problem with the idea of government of laws, not (uh) persons: the laws don't apply themselves; particular persons apply them, and different particular persons will do so in different ways. This doesn't mean that the Fordists are right when they claim that elected governments always ought to trump unelected judges (such that, what, if a newly elected government wants to pass a Lock Her Up Act, that's OK?), but it does mean that it's not as easy to dismiss more nuanced versions of the claim as one might like.
Currently at the back of my shed: 18.1.
Like everyone else in Ontario, I'm sure, I spent my morning reading court decisions. A few thoughts:
1. It was a mistake for Belobaba to find that Bill 5 impaired the s. 2(b) rights of voters by impairing the effectiveness of their representation--a matter on which his reasoning seems to have nothing to do with the timing of the legislation. The government, obviously, would argue that voters are more effectively represented under the 25-ward scheme. The government's argument may be wrong, but it would not (necessarily) be unreasonable, and this seems clearly the sort of question on which there is room for reasonable political disagreement that the courts have no business adjudicating. I think it's a mistake not just because it's incorrect, but also because it makes it look like Belobaba is grasping at straws, which undermines his credibility.
2. I think the Court of Appeals is wrong in its argument that Belobaba incorrectly reads s. 2(b) in light of s. 3, which does not apply to municipal elections, when he argues (much more persuasively) that Bill 5 infringes the 2(b) rights of candidates. Belobaba is not arguing that municipal elections are subject to 3 or to 2(b) in conjunction with 3; he is arguing that the reasoning by which the Supreme Court established that 2(b) is to be read in conjunction with 3 in Libman (1997) also applies to municipal elections. Paragraph 47 of Libman, which is the one cited by Belobaba, says that campaign spending limits prevent damage to candidates' ability to communicate effectively, which is necessary for the exercise of the voting rights guaranteed by s. 3 (and maybe also equality rights guaranteed by s. 15). The question Belobaba is answering is what is a relevant impairment of expression in this case. The Court of Appeals says that nothing about Bill 5 stops candidates from saying whatever they want, and that nothing about it has "erased" what they have already said. This represents a narrow, "negative" view of freedom of expression: your expression rights are impaired if and only if you are prevented by use of coercive force from expressing yourself. Belobaba is arguing that Libman establishes that, at least where elections are concerned, the negative view, or at least a purely negative view, is inappropriate: the law needs to establish conditions under which candidates are able to communicate effectively, and not just refrain from preventing candidates from communicating effectively. Unfortunately for Belobaba's argument, the relevant part of Libman does not invoke 2(b) explicitly--and in fact it doesn't invoke 3 explicitly, either. So while I think the Court of Appeals' rebuttal of Belobaba on this point--which is the point on which the whole case hinges--is incorrect, I think it still can be reasonably argued that the precedent Belobaba invokes is not really there (whereas the Court of Appeals appears to assume with Belobaba that it is there, but argues that it is irrelevant to municipal elections).
3. The arguments of both Belobaba and the Court of Appeals more or less state outright that there is no legal limit to the power of provincial governments to do as they like with the structure of municipal governments except for readings of certain sections of the Constitution which constitutional conservatives (by which I just mean people who favour narrow readings of constitutions) might describe as "creative". The Court of Appeals, taking a more constitutionally conservative position than Belobaba, seems to more or less suggest that there is no legal limit at all to the power of provincial governments to do as they like with the structure of municipal governments, which leaves one to wonder how it would respond if, for instance, the province moved to change the rules in Bill 5 fashion the week before an election--or, to put a sharper point on it, the week after. What if, immediately after a municipal election, the province moved to abolish council altogether, effective immediately? If in fact there is no constitutional bar to that ... then there obviously should be! And there so obviously should be that this seems to be the kind of case where unwritten constitutional conventions have to hold sway--especially since, given the practical impossibility of amending the Constitution post-Charlottetown, there is no practical way to explicitly remedy this oversight in the written Constitution. Much as Bill Davis said about the use of the notwithstanding clause in Bill 31, this is the kind of thing that is not explicitly disallowed because no one imagined anyone doing such a thing. There are no explicit constitutional provisions against provinces arbitrarily changing the rules of municipal elections during election campaigns because who does that?
4. The fact that nobody knew how either Belobaba or the Court of Appeals would rule, and that nobody knows how the Supreme Court will rule if it gets there, speaks to a touchy kind of problem with the idea of government of laws, not (uh) persons: the laws don't apply themselves; particular persons apply them, and different particular persons will do so in different ways. This doesn't mean that the Fordists are right when they claim that elected governments always ought to trump unelected judges (such that, what, if a newly elected government wants to pass a Lock Her Up Act, that's OK?), but it does mean that it's not as easy to dismiss more nuanced versions of the claim as one might like.
Currently at the back of my shed: 18.1.
