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Department of Economics
Task and Context:
1. You will assume the role of a senior economist tasked with briefing a senator instead of a minister. You are to brief any senator sitting on the Senate Standing Committee for Legal and Constitutional Affairs. (You will need to search for this information on the Senate of Canada’s website: (https://sencanada.ca/en/). You will brief a senator of your choice who sits on the Senate Standing Committee for Legal and Constitutional Affairs on the correlation between economic growth and trust in/role of institutions. The institutions in question are the federal and provincial governments themselves and their growing inclination on the suspension of Canadian constitutional rights (i.e. using the “Notwithstanding Clause” – see article #1 (from 2022) below for details or for example, the use of the “Emergencies Act”, see article #2 below (from 2024) when they want to impose likely unconstitutional laws. Think about the role these bodies play in the economy and their relationship with the public. Keep the following context in mind: The use of the “Notwithstanding Clause” can, in theory, if not in practice, destabilize a country and erode trust in the very institutions that exist to protect Canadians. The use by governments of the “Notwithstanding Clause” can limit or suspend freedom of religion, freedom of association, freedom of the press, and protection from arbitrary imprisonment. In addition, there is the issue of it or the “Emergencies Act” being used to target groups differently.
2. Your task is to develop your briefing note “Issue” after reading the articles below. You should address the key points found in the articles. You will need to research the issue further. You may wish to address tradeoffs, opportunity costs, and the principal-agent problem in context, if any. You may also wish to address how broad support in and for institutions can be strained or can wane using the clause or other similar government actions. Keep in mind that the first article is an opinion piece. Thus, you may agree or disagree with it. Remember that you are an unbiased senior economist applying principles of institutional economics. You are NOT summarizing the articles; rather, providing your argued economic position (not legal position since this is not a law class) on point 1 above to a senator.
3. Your briefing note is “For Information Only”; however, ensure that it has a well-developed “Key Considerations” section. Develop your briefing note “Issue” after reading the articles pasted below.
4. Important note: As per the lecture on briefing notes (BNs), know your audience and what is important to them. Familiarize yourself with the committee’s mandate. Do not write your BN in the manner you would an essay for experts in your field. Do not write as a journalist/reporter. Do not use the vernacular. Do not summarize these articles – that is not the purpose of the BNs. Research the issues to inform. your advice to the senator, and integrate your knowledge of economics (from this and all your other courses) into the BN. No references or citations in your BN, please, but do not plagiarism or use any AI for assistance! The BN should be 2 pages in length with 1.15 spacing, 12 font, Times New Roman.
Article #1
The Americas| Fights over citizens’ rights
The ticking bomb under Canada’s constitution
The obscure-sounding “notwithstanding clause” is actually rather dangerous
The Economist Dec 8th 2022 | MONTREAL
In November Doug Ford, the premier of Ontario, Canada’s most populous province, got into a
brawl. The trade union representing 55,000 janitors, teachers’ assistants and other support staff in
schools wanted an above-inflation pay rise of 11.7%. Mr. Ford’s government passed a law to
impose a settlement of just 2.5% on the provincial government’s lowest-paid workers. Anyone who
walked off the job would be fined C$4,000 ($3,000) a day.
To make sure he got his way Mr. Ford resorted to constitutional hardball. The imposed contract looked like a violation of workers’ rights to bargain collectively, which is protected by the
constitutional right to freedom of association. That opened it to legal challenge. In response Mr.
Ford’s law invoked the constitution’s “notwithstanding clause”, which allows Canada’s legislatures to override basic rights for up to five years (and to keep renewing the measure).
After thousands of workers took to the streets and unions threatened the province with a general
strike, Mr. Ford backed down. But his attempt to use the “notwithstanding clause”—Section 33 of Canada’s Charter of Rights and Freedoms—set off shock waves that are still reverberating. The
charter “cannot become a suggestion”, thundered Justin Trudeau, the prime minister. Yet the clause invites norm-bending politicians to make it just that.
Canada’s bill of rights was adopted in 1982 under the government of Mr. Trudeau’s father, Pierre, as part of the “patriation” of Canada’s constitution from Britain, the final step in claiming its
independence. Fearing that a written charter would empower judges at their expense, provincial premiers demanded Section 33 as a way of preserving politicians’ autonomy. Constitutional
scholars see it as a way of reconciling the principle of parliamentary sovereignty, inherited from Britain, with the introduction of a written charter.
Under Section 33 federal, provincial and territorial parliaments may suspend such rights as freedom of religion and speech, as well as protection from torture and unreasonable searches and seizures
(but not the right to vote), if they specify what right they’re overriding. A prime minister or premier with enough votes in the legislature could use it to muzzle the press, subject people to arbitrary
arrest or shut down houses of worship. Brian Mulroney, prime minister from 1984 to 1993, said that Section 33 meant that the charter was “not worth the paper it is written on” . No other country has such a constitutional get-out clause in Canada’s expansive form.
Not withstanding?
During Section 33’s 40-year life Canada has not become a police state. Governments, thinking that voters would deem its use to be a nuclear option, have invoked it rarely. The main exception has
been that of French-speaking Quebec. In 1988, after Canada’s Supreme Court struck down
Quebec’s ban on non-French shop signs and public advertisements, the province used the clause to override the decision.
But lately the clause has been invoked more often. In 2019 Quebec’s conservative premier,
Fran?ois Legault, used Section 33 when enacting a law that bars public servants from wearing
religious symbols, which seems to be aimed at hijab-wearing Muslims. He followed up this year with a law restricting the use of English in courts and public services. The law also authorises the Office Québécois de la langue fran?aise, a sort of language-enforcement agency, to conduct
searches without a warrant to ensure that businesses are using French in the workplace. That, too, came with the support of Section 33.
Mr. Ford, a Progressive Conservative by party and a populist by inclination, was poised to use it in 2018 to reduce the number of seats on Toronto’s city council. (He didn’t have to; a court said he
had the authority to do that.) In 2021 he invoked Section 33 for the first time in the province’s
history, and for a worrying purpose: seemingly to boost his chances of re-election. Facing criticism for his government’s response to covid-19, he pushed through a law that tightened restrictions on campaign advertising by organisations other than political parties. The intent appears to have been to curb hostile adverts by trade unions. When a court struck down the law as unconstitutional Mr. Ford enacted a new version, clad in Section 33 armour. That may have helped him win re-election in June this year, though it was probably not the decisive factor.
“For a long time it was thought that the political costs of invoking Section 33 would always be
really big,” says Hoi Kong at the University of British Columbia. “Governments are now testing
that.” Mr. Ford has said that the clause is just another “tool”, and that a good premier will make full use of his “toolbox” .
It is not the only tool that politicians have lately used to push their powers to the limit. In February, Mr. Trudeau, of the centre-left Liberal Party, invoked (for the first time in the law’s 34-year
history)the Emergencies Act, which empowers the federal government to override laws and seize
authority from provincial and local governments. The emergency in question was the blockade of central Ottawa, the capital, by a “freedom convoy” of truckers opposed to vaccine mandates and by thousands of sympathisers. Many Canadians thought Mr. Trudeau was abusing his power by using the act to disperse a protest that was illegal but no threat to the state. He ended the order after nine days; in November he testified at the parliamentary review that by law must be held after the act is invoked.
And on November 29th Alberta, a western province often at odds with the federal administration,
introduced a bill that would authorise its Conservative government to refuse to enforce federal laws if the legislature finds that they are unconstitutional or cause “harm to Albertans” . The first draft of the bill allowed the cabinet to amend provincial laws unilaterally, but this clause is likely to be removed.
All this alarms civil libertarians. Robert Leckey, dean of the law school at McGill University in
Montreal, worries about the “creeping populism” of Mr. Ford and Mr. Legault. What makes Mr.
Legault’s use of Section 33 especially worrying is that he invoked it pre-emptively, suspecting that courts would rule against him otherwise.
Canada has yet to produce a Donald Trump, but it may have weaker constitutional defences than
the United States if such a person appears. Section 33 “creates a vulnerability to the democratic
backsliding that is occurring elsewhere”, says Peter Biro, founder of a group that lobbies for its
repeal. To many Canadians, the freedom convoy was a sign that populism could move north of the border. It had the support of a significant minority, and cash and encouragement from Trumpist
Americans. (Right-wingers claim that the real danger to personal liberties comes from Mr. Trudeau, who they say has the freedom-trampling instincts of the left.)
The repeal that Mr. Biro wants is unlikely. It would require the approval of seven of Canada’s ten provinces, representing at least half of the population. A more realistic possibility is that Canada’s Supreme Court will put in place “guard-rails”, which would bar governments from invoking
Section 33 pre-emptively. Civil libertarians are hoping that when the court eventually considers a challenge to Quebec’s religious-symbols law it will ban future pre-emptive uses, though it is
unlikely to strike down the law itself. That might lessen, but would not eliminate, the danger that a political malefactor could use Section 33 to crush Canadians’ rights. For decades they largely
ignored the bomb lodged in their constitution. Now they must anxiously hope that no one sets it off. .
This article appeared in the The Americas section of the print edition under the headline "A bomb lodged in the constitution"
The Americas, December 10th 2022
Article #2 :Emergencies Act ruling reopens emotional debate two years after huge protests
(msn.com)
This report by The Canadian Press was first published Jan. 24, 2024. Jim Bronskill and Laura Osman, The Canadian Press
OTTAWA — A judge's ruling that the federal Liberals were unjustified in using emergency law to quell a weeks-long protest in Ottawa has left the administrator of a downtown church feeling the court disregarded infringements of her rights.
In a decision released Tuesday, Federal Court Justice Richard Mosley said the government's
invocation of the Emergencies Act in February 2022 was unreasonable and led to violation of the constitutional right of free expression.
The Canadian Civil Liberties Association, an applicant in the case, said the ruling serves notice that even in times of crisis, when emotions are running high, no government is above the law and that
basic rights and freedoms must be upheld.
Vivian Leir, the long-time administrator of a Presbyterian church near Parliament Hill, said she was
dismayed by the court decision after what she experienced during the three-week protest in downtown Ottawa.
The "Freedom Convoy" protest, initially seen as a demonstration against COVID-19 health
restrictions, attracted people with a variety of grievances against Prime Minister Justin Trudeau and the Liberal government.
Blaring truck horns, diesel fumes and makeshift encampments prompted many businesses to
temporarily close their doors and aggravated downtown residents, some of whom were harassed.
Disgruntled protesters also blockaded key border crossings to the United States.
The Emergencies Act allowed for temporary measures including regulation and prohibition of
public assemblies, the designation of secure places, direction to banks to freeze assets and a ban on support for participants.
Leir said the court ruling has done nothing to change her belief that the government was justified in invoking the emergency powers.
"At the time, when the federal government brought in the Emergencies Act, it was a great relief to myself and I think many of the citizens of Ottawa," she said in an interview Wednesday.
"To hear that they didn't think it was justified when clearly nothing was being done about the situation, it kind of hurts."
Leir testified in the criminal trial of two "Freedom Convoy" organizers about how overwhelmed she felt by the number of big-rig trucks and near-constant horn honking that accompanied the protest. That criminal trial is still ongoing.
A proposed $290-million class-action lawsuit against convoy organizers on behalf of downtown Ottawa residents, workers and business owners is also still unfolding in Ontario court, said Paul Champ, lawyer for the lead plaintiff in the case.
Reflecting on Mosley's ruling, Champ said Wednesday that invoking the Emergencies Act is
something that should be reserved for extraordinary circumstances, involving dire threats to the security of Canada, "and I don't think that we were necessarily there."
"The court definitely found that there was an unacceptable breakdown in public order in Ottawa, but felt that the Emergencies Act, or at least the way it was invoked, was a blunt tool to try to address it," Champ said.
"The big takeaway is that it's an extremely high threshold."
The federal government has said it disagrees with Mosley's decision and plans to appeal, meaning the case is likely to be before the courts for many more months or even years.
The Public Order Emergency Commission, which carried out a mandatory review after invocation of the emergency law, issued 56 recommendations last February on improving the response to large-scale public order events.
Public Safety Minister Dominic LeBlanc is expected to provide the government's full response to Rouleau's findings next month.
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