The Constitutionality of a Curriculum.
Last night I read this article. And I wish I could say I was stunned. But, I wasn't. Because this is already far from the first time we've seen this government, let alone politicians in general use this tactic.
IF the courts decide not to follow the case, it will NOT be for the reasons stated here. And that is simply because there are no actual, valid reasons contained within.
The constitution is a framework. It is highly generalized and does not contain provisions for specific actions. It also exists exclusively to put limits on the powers of elected officials. The constitution is never used against an individual. It is used to protect individuals against abuses of power by law makers. In short, a constitution contains laws which governments are held accountable to. And governments are not permitted to decide how and when they are applied.
It is also generalized for another reason. Times change. Because these laws are so foundational to all other laws established and because they are so incredibly to amend legally. It is important that they are general enough that they can remain relevant as time goes on. If the constitution contained specific stipulations, women would probably still be ineligible to vote and treated as second class citizens in rights. When the constitution was established, denying women the right to vote wasn't seen as a violation of the constitution. It was consider natural and right for them not to have those rights.
Times changed. And the public perception changed. And yet, the constitutional laws which now enshrine those right, haven't actually changed. Simply their interpretation and application have.
With that in mind, let's dive in.
They claim that the constitution doesn't set out what should be in the curriculum. And this is true. But, entirely irrelevant. The curriculum is mandated, by law, by the government. And thus, while it may not say what should be in it. Constitutional law absolutely can be applied here. Their argument is rather simply defeated with a quick thought example. But, I want to move on to another point before going into that, because the same logic applies there equally well.
It then goes on to claim that the legislature grants the ability to drive the curriculum to the minister (the Premier or his chosen Minister of Education) and should defer to them as the authority on matters related to education.
Wow! That is a doozy. Firstly, the only accurate claim is that the duty of establishing the curriculum is vested in the office of the Premier (which is subsequently delegated to the Minister of Education).
The next problem is that the position of both the Premier and the Minister of Education bear to requisite of any expertise in the field of education. There is no need to assume authority. The Minister is Education is simply appointed by the Premier. And the Premier is elected on a wide range of matters and is not presumed to be an expert in any.
But, the bigger problem is that even a provable level of expertise would not serve as just grounds for dismissing a constitutional challenge. Even experts can knowingly or unknowingly violate the constitutional rights through their actions.
These arguments by the government basically amount to "I was elected and me and my staff have limitless powers within the realms granted to our offices. As per our mandate, no action we take can be seen as unconstitutional".
And yet, we already know this is false. The government has actually already LOST a suit on constitutional law regarding their changes to the size of the Toronto government. The law is in only in place because the government leveraged a loop hole in the legal system which allowed them to basically legally ignore that.
And, we can very easily imagine a scenario which would constitute a violation of the constitution without question; They could dictate that the curriculum teach the superiority of a particular race or religion. Or promote violence or acts against particular visible minorities.
Understand, it is technically within their power to pursue such legislation. It is only the constitution's power to limit which could stop such an act.
I personally don't have much knowledge of the matters in this case, so I don't know whether it will be dismissed or whether it has a chance of succeeding. But, if evidence can be provided which show the efficacy of the current curriculum, or even specific elements of it, in protecting the constitutional rights of other at risk individuals. Then, reverting back to the older curriculum would very easily be seen as jeopardizing those rights and then I would expect the challenge to win.
But, in my mind, this statement from the Premier's office has no legal merit. I doesn't provide any valid reason why a judge might dismiss the case. The judge may still dismiss the case if he likewise thinks the other parties don't have a solid case. But, if I were a judge, based on this reasoning being provided, I would let it proceed.
The worst part in my mind; I don't believe Ford or his lawyers believe their arguments will make any difference. Not only are they non-arguments. But, they are trivial arguments which don't even need to be presented to a judge for them to take them into consideration.
From my point of view, this looks like another statement which is being made explicitly for the sake of the public. Ford is making arguments that will seem at least not wholly unreasonable to the average person. Which in turn will make people more likely to become mad when the governments position is rejected by the courts. Which in turn will make the people think that the courts have politicized the matter. When, in fact, it is the Premier's office which is politicizing this.
In short, it seems like they KNOW that the case won't be thrown out. And that they KNOW that they have some reasonable chance of losing. My justification being, if they had valid grounds upon which to convince the judge to dismiss the case, they would have supplied them. If they felt that the other party had no chance of winning in court they would likely refuse to comment publicly on it to avoid contaminating the case in any way.
But, to provide utterly useless, non-arguments? Publicly? As I said, you need only look at the nature of the arguments. They boil down to "we were elected" and "we're legally in control of this". They are SIMPLE and STRAIGHT FORWARD arguments. Those who voted for Ford will put a lot of weight in them. Those who want to see the education reformed or reverted will put a lot of stock in them as well. They will believe that the Premier has no reason to lie. They will believe he has the backing and confidence of legal professionals and that he is following their advice. And they will be enraged when he loses.
It ignores that neither being an elected official nor have control over a particular area of law mean that the constitution can't be breached. I'll repeat it again. The CONSTITUTION EXISTS TO PLACE BOUNDS ON ELECTED OFFICIALS FOR THE GOOD OF THE PEOPLE. It pretty much ONLY applies to elected officials acting within their official capacity.
From a satirical standpoint, their arguments could basically be rephrased as "Dear Judge, our opponents are attempting to properly apply constitutional law against us, and we humbly ask you to ignore any violations we may be performing by dismissing this case."
I think the worst part about this though is that the grounds upon which this challenge is most likely to win are probably the same upon which the notwithstanding clause was leveraged to allow the government to move forward with on the topic of the Toronto council.
In short, unless they are found to violate some other article of the constitution, the government will likely, as they promised the last time. Simply invoke the notwithstanding clause again. This government doesn't care about upholding the constitution.
IF the courts decide not to follow the case, it will NOT be for the reasons stated here. And that is simply because there are no actual, valid reasons contained within.
The constitution is a framework. It is highly generalized and does not contain provisions for specific actions. It also exists exclusively to put limits on the powers of elected officials. The constitution is never used against an individual. It is used to protect individuals against abuses of power by law makers. In short, a constitution contains laws which governments are held accountable to. And governments are not permitted to decide how and when they are applied.
It is also generalized for another reason. Times change. Because these laws are so foundational to all other laws established and because they are so incredibly to amend legally. It is important that they are general enough that they can remain relevant as time goes on. If the constitution contained specific stipulations, women would probably still be ineligible to vote and treated as second class citizens in rights. When the constitution was established, denying women the right to vote wasn't seen as a violation of the constitution. It was consider natural and right for them not to have those rights.
Times changed. And the public perception changed. And yet, the constitutional laws which now enshrine those right, haven't actually changed. Simply their interpretation and application have.
With that in mind, let's dive in.
They claim that the constitution doesn't set out what should be in the curriculum. And this is true. But, entirely irrelevant. The curriculum is mandated, by law, by the government. And thus, while it may not say what should be in it. Constitutional law absolutely can be applied here. Their argument is rather simply defeated with a quick thought example. But, I want to move on to another point before going into that, because the same logic applies there equally well.
It then goes on to claim that the legislature grants the ability to drive the curriculum to the minister (the Premier or his chosen Minister of Education) and should defer to them as the authority on matters related to education.
Wow! That is a doozy. Firstly, the only accurate claim is that the duty of establishing the curriculum is vested in the office of the Premier (which is subsequently delegated to the Minister of Education).
The next problem is that the position of both the Premier and the Minister of Education bear to requisite of any expertise in the field of education. There is no need to assume authority. The Minister is Education is simply appointed by the Premier. And the Premier is elected on a wide range of matters and is not presumed to be an expert in any.
But, the bigger problem is that even a provable level of expertise would not serve as just grounds for dismissing a constitutional challenge. Even experts can knowingly or unknowingly violate the constitutional rights through their actions.
These arguments by the government basically amount to "I was elected and me and my staff have limitless powers within the realms granted to our offices. As per our mandate, no action we take can be seen as unconstitutional".
And yet, we already know this is false. The government has actually already LOST a suit on constitutional law regarding their changes to the size of the Toronto government. The law is in only in place because the government leveraged a loop hole in the legal system which allowed them to basically legally ignore that.
And, we can very easily imagine a scenario which would constitute a violation of the constitution without question; They could dictate that the curriculum teach the superiority of a particular race or religion. Or promote violence or acts against particular visible minorities.
Understand, it is technically within their power to pursue such legislation. It is only the constitution's power to limit which could stop such an act.
I personally don't have much knowledge of the matters in this case, so I don't know whether it will be dismissed or whether it has a chance of succeeding. But, if evidence can be provided which show the efficacy of the current curriculum, or even specific elements of it, in protecting the constitutional rights of other at risk individuals. Then, reverting back to the older curriculum would very easily be seen as jeopardizing those rights and then I would expect the challenge to win.
But, in my mind, this statement from the Premier's office has no legal merit. I doesn't provide any valid reason why a judge might dismiss the case. The judge may still dismiss the case if he likewise thinks the other parties don't have a solid case. But, if I were a judge, based on this reasoning being provided, I would let it proceed.
The worst part in my mind; I don't believe Ford or his lawyers believe their arguments will make any difference. Not only are they non-arguments. But, they are trivial arguments which don't even need to be presented to a judge for them to take them into consideration.
From my point of view, this looks like another statement which is being made explicitly for the sake of the public. Ford is making arguments that will seem at least not wholly unreasonable to the average person. Which in turn will make people more likely to become mad when the governments position is rejected by the courts. Which in turn will make the people think that the courts have politicized the matter. When, in fact, it is the Premier's office which is politicizing this.
In short, it seems like they KNOW that the case won't be thrown out. And that they KNOW that they have some reasonable chance of losing. My justification being, if they had valid grounds upon which to convince the judge to dismiss the case, they would have supplied them. If they felt that the other party had no chance of winning in court they would likely refuse to comment publicly on it to avoid contaminating the case in any way.
But, to provide utterly useless, non-arguments? Publicly? As I said, you need only look at the nature of the arguments. They boil down to "we were elected" and "we're legally in control of this". They are SIMPLE and STRAIGHT FORWARD arguments. Those who voted for Ford will put a lot of weight in them. Those who want to see the education reformed or reverted will put a lot of stock in them as well. They will believe that the Premier has no reason to lie. They will believe he has the backing and confidence of legal professionals and that he is following their advice. And they will be enraged when he loses.
It ignores that neither being an elected official nor have control over a particular area of law mean that the constitution can't be breached. I'll repeat it again. The CONSTITUTION EXISTS TO PLACE BOUNDS ON ELECTED OFFICIALS FOR THE GOOD OF THE PEOPLE. It pretty much ONLY applies to elected officials acting within their official capacity.
From a satirical standpoint, their arguments could basically be rephrased as "Dear Judge, our opponents are attempting to properly apply constitutional law against us, and we humbly ask you to ignore any violations we may be performing by dismissing this case."
I think the worst part about this though is that the grounds upon which this challenge is most likely to win are probably the same upon which the notwithstanding clause was leveraged to allow the government to move forward with on the topic of the Toronto council.
In short, unless they are found to violate some other article of the constitution, the government will likely, as they promised the last time. Simply invoke the notwithstanding clause again. This government doesn't care about upholding the constitution.
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