This Court doesn’t lean

Paul Wells on why Maurice Duplessis’s old saw about the Supreme Court being like the Tower of Pisa no longer applies

by Paul Wells

“You know, the Supreme Court, it’s like the Tower of Pisa,” Maurice Duplessis used to say. “It always leans in the same direction.” Ho-ho. Toward Ottawa, he meant. The mid-20th-century Quebec premier was arguing that Quebec couldn’t win at the highest court in the land because the court would always invoke a “national interest” to ignore the Constitution and run roughshod over provincial rights.

It’s super-popular in Quebec nationalist circles to quote Duplessis on the Tower of Pisa, as the St.-Jean-Baptiste Society of the Mauricie does in this .pdf — without worrying too much that what set Duplessis off was the top court’s demolition of his loathsome Padlock Act, which he used to shut down suspected Communist-owned businesses in defiance of due process and free speech. Also handily ignored: the Supremes were upholding lower-court decisions in Quebec courts when they tossed Duplessis’s law out. Basically, justices from across Canada, when asked, joined a string of Quebec judges in protecting the people of Quebec from a lousy democrat. You’d think people would bear that in mind when quoting Duplessis on leaning towers. But no such luck.

Moving along, we note that one of the first things René Lévesque’s new Parti Québécois government did in 1976 was to contract legal scholar Gilbert L’Ecuyer to poke through Supreme Court jurisprudence looking for leaning towers. He didn’t find any: his 1978 study said the Supremes were faithfully applying the tenets of an 1867 constitution (that, to be fair, L’Ecuyer found unconscionably biased in its provisions toward the federal level).

No matter. The Leaning Tower metaphor is impervious to bullets and evidence. Lucien Bouchard and Gilles Duceppe rehearsed it in anticipation of the 1998 Supreme Court reference decision on secession. That’s when I first heard about it.

Fast forward to today, when the Supremes brought down their opinion on the national securities reference. We’ve got John Geddes and, soon, Emmett Macfarlane on the substance of the decision, so I’ll restrict myself to noting that this is a terrible decision for the Ottawa-based government of Stephen Harper and a very good one for the provinces that opposed his project, mostly Quebec and Alberta. Add this to the Insite decision, and Ottawa is having a rotten year at the top court.

Conservatives will probably use the same two rulings to complain that the Court is biased against conservative thinking. As for Quebec nationalists, they will do what they must in the face of this new evidence, and ignore it.

What will the Harper government do? It’ll be very hard to redraft this bill to bring it into compliance with the separation (UPDATE: Occasional Colleague Macfarlane reminds me I meant to say “division”) of powers. The feds may have to drop the idea altogether. Which would be too bad. But it would be easier to sympathize if this government looked like one that was chasing competitive advantage for Canada down every avenue. That’s not this government. Its own panel report on competitiveness, penned by former BCE CEO Red Wilson, mostly just gathers dust.




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This Court doesn’t lean

  1. I don’t mind this punch in nose from Supreme Court. Bigger is not necessarily better, as far as government programs go, and I think it would be wicked awesome if Prov regulators took their jobs seriously and did some regulating. White collar crime flourishes in Canada in a way that it doesn’t in America, for instance. And a national regulator won’t fix that problem, probably make it worse, because crony capitalism more likely. 

    PJ O’Rourke ~ When buying and selling are controlled by legislation, the first things to be bought and sold are legislators

    • The provincial regulators could all be competent, but the problem remains that anyone wanting to do business in Canada has to contend with 13 sets of regulation, for no good reason.

      • Yes, but Andrew, you have to delve deeper than that.  The Canadian Securities Administrators have for many years (really many decades now) been working on and implementing all kinds of harmonization initiatives.  Most of the rules governing securities in Canada are now in the form of harmonized national instruments.  For example, you no longer have multiple securities commissions clearing and receipting prospectuses.  Our continuous disclosure rules are harmonized.  I could go on and on.  The extent of harmonization of our rules and processes is grossly underestimated and understated by many people who comment on this issue.

        Personally, I would have liked to have had the single national regulator, but it’s not like we have some backwards, balkanized system riddled with inefficiencies.  All things considered, our system works quite well.  There’s a reason why, for instance, we lead the planet in the number of publicly listed mining issuers.  If our system sucked, people from around the planet would not be lining up to have their mining companies listed here.  There are many other choices out there.

        • I also thought a single regulator would make sense until talking to friends in the biz. after B.C. got cold feet.   B.C. likes its top-dog status in mining, Alberta is home to oil and gas and Montreal handles the derivatives exchange.  Notice how Ontario was quite happy in all this? lol.

          Maybe a case of “if it an’t broke, don’t fix it”

          • While I think a single regulator would have on balance been preferable, I agree with you that the current system is very effing far from broken.  It works reasonably well.  That’s where a lot of the hard-core proponents of a single regulator grossly overstate their case IMO.

            I do think it’s important to add that the single-regulator proposal had a lot of provisions and guarantees, such that BC’s and Alberta’s concerns were substantially addressed.  Those of us who work in the industry wanted to make sure that, e.g., there were local offices in money centres like Vancouver and Calgary that were fully staffed and had decision-makers there, etc.

            Naturally, though, to take an example, a BC-only regulator is always going to be more responsive to BC-only concerns than a national regulator.  Like most things in life, both alternatives have their pros and cons. 

    • ‘White collar crime flourishes in Canada in a way that it doesn’t in America, for instance.’

      ???

      Fannie Mae, Freddie Mac, Bernie Madoff, Enron…….

      • For once, I agree with Emily.  Merry Christmas.

        • LOL well, there’s a first time for everything I guess…. Happy Sir Isaac Newton’s birthday.

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