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Frontier Centre for Public Policy

Trump’s trial defines justice in disrepute – A Canadian perspective

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From the Frontier Centre for Public Policy

By Colin Alexander

Canada and the US both have a problem with rogue judges

Whatever one thinks of former President Donald Trump, his criminal trial violates the jurisprudence established  by England’s Lord Chief Justice Hewart: “It is… of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

Judges too often preside over cases despite having a conflict of interest. Trump’s argument had merit, that having the Democrat stronghold of Manhattan as the venue for his trial was unfair. And the assignment of Acting Justice Juan Merchan for the trial may reasonably be said to be corrupt. The US Judicial Code says: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

Republican Congresswoman Elise Stefanik says Justice Merchan contributed to the Democrat campaign in 2020. And his daughter, Loren Merchan, is heavily involved in Democrat politics. Stefanik says her firm stood to profit from Trump’s conviction. So, one may presume the judge’s bias against Trump.

The charge against Trump was that money was paid to porn star Stormy Daniels to keep her quiet and not undermine his presidential election prospects in 2016. Paying money to suppress prurient assertions is not illegal. But, it was said to violate US election law if intended to influence the outcome of the election—and not merely to protect Trump’s reputation. Given what everyone knows, how could publication of Daniels’s assertions influence a single voter’s intentions?

Many other wandering public figures come to mind. Certainly, Presidents Kennedy and Clinton. Said to be expert on the bedroom ceilings of rich men, Pamela Digby Churchill Hayward Harriman was Clinton’s ambassador to France.

Textbooks and case law forbid judges to hear cases where there could be a perception of bias. A landmark case involved an application by the Spanish government to extradite former President Pinochet of Chile from England. Lord Hoffmann was the swing vote in the decision that immunity did not prevent extradition. The House of Lords set aside that judgment because Lord Hoffmann had been chairman of Amnesty International, which had campaigned for Pinochet’s prosecution. The judges said that the Amnesty link was an automatic disqualification for sitting on the case.

During the 2022 truckers’ protest in Ottawa, Chief Justice Richard Wagner made outlandish comments about an incipient revolution. The Canadian Judicial Council, of which he is head,  exonerated him. By contrast, Justice Thomas Berger of the BC Supreme Court resigned gracefully after being scolded for non-partisan comment on the entrenchment of Indigenous rights in the Charter.

A typical case of conflicted judging is MediaTube v. Bell Canada, discussed at length in my book Justice on Trial. The plaintiff asserting that Bell stole the technology for FibeTV. The Federal Court’s trial judge, Justice George Locke, had been a partner in the firm of Norton Fulbright that acted for Bell. His decision in favour of Bell is gobbledygook. He acknowledged that Bell had constantly changed the description of how their system worked, as if they didn’t know that. Arguably, Bell and their lawyers McCarthy Tétrault committed the criminal offences of perjury and obstruction of justice. Justice David Stratas spoke for the appellate judges despite having previously represented Bell before the Supreme Court. In 130 words, he justified the exclusion of new evidence by citing a case that had analyzed the purported new evidence in 9,000 words.

Trump’s case follows ones described in Christie Blatchford’s book, Life Sentence: Stories from four decades of court reporting—Or how I fell out of love with the Canadian justice system (Especially judges). “The judiciary,” she wrote, “is much like the Senate. Like senators they are unelected, unaccountable, entitled, expensive to maintain and remarkably smug.”

Canadians as well as Americans need outside accountability for lawyers and judges. As US Supreme Court Justice Louis Brandeis once wrote, “If we desire respect for the law, we must first make the law respectable.”

Colin Alexander’s degrees include Politics, Philosophy, and Economics from Oxford. His latest book is Justice on Trial: Jordan Peterson’s case shows we need to fix the broken system.

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Education

Classroom Size Isn’t The Real Issue

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From the Frontier Centre for Public Policy

By Michael Zwaagstra

The real challenge is managing classrooms with wide-ranging student needs, from special education to language barriers

Teachers’ unions have long pushed for smaller class sizes, but the real challenge in schools isn’t how many students are in the room—it’s how complex those classrooms have become. A class with a high proportion of special needs students, a wide range of academic levels or several students learning English as a second language can be far more difficult to teach than a larger class where students are functioning at a similar level.

Earlier this year, for example, the Elementary Teachers’ Federation of Ontario announced that smaller class sizes would be its top bargaining priority in this fall’s negotiations.

It’s not hard to see why unions want smaller classes. Teaching fewer students is generally easier than teaching more students, which reduces the workload of teachers. In addition, smaller classes require hiring more teachers, and this amounts to a significant financial gain for teachers’ unions. Each teacher pays union dues as part of membership.

However, there are good reasons to question the emphasis on class size. To begin with, reducing class size is prohibitively expensive. Teacher salaries make up the largest percentage of education spending, and hiring more teachers will significantly increase the amount of money spent on salaries.

Now, this money could be well spent if it led to a dramatic increase in student learning. But it likely wouldn’t. That’s because while research shows that smaller class sizes have a moderately beneficial impact on the academic performance of early years students, there is little evidence of a similar benefit for older students. Plus, to get a significant academic benefit, class sizes need to be reduced to 17 students or fewer, and this is simply not financially feasible.

In addition, reducing class sizes means spending more money on teacher compensation (including salaries, pensions and benefits). Also, it leads to a decline in average teacher experience and qualifications, particularly during teacher shortages.

As a case in point, when the state of California implemented a K-3 class-size reduction program in 1996, inexperienced or uncertified teachers were hired to fill many of the new teaching positions. In the end, California spent a large amount of money for little measurable improvement in academic performance. Ontario, or any other province, would risk repeating California’s costly experience.

Besides, anyone with a reasonable amount of teaching experience knows that classroom complexity is a much more important issue than class size. Smaller classes with a high percentage of special needs students are considerably more difficult to teach than larger classes where students all function at a similar academic level.

The good news is that some teachers’ unions have shifted their focus from class size to classroom complexity. For example, during the recent labour dispute between the Saskatchewan Teachers’ Federation (STF) and the Saskatchewan government, the STF demanded that a classroom complexity article be included in the provincial collective agreement. After the dispute went to binding arbitration, the arbitrator agreed with the STF’s request.

Consequently, Saskatchewan’s new collective agreement states, among other things, that schools with 150 or more students will receive an additional full-time teacher who can provide extra support to students with complex needs. This means that an extra 500 teachers will be hired across Saskatchewan.

While this is obviously a significant expenditure, it is considerably more affordable than arbitrarily reducing class sizes across the province. By making classroom complexity its primary focus, the STF has taken an important first step because the issue of classroom complexity isn’t going away.

Obviously, Saskatchewan’s new collective agreement is far from a panacea, because there is no guarantee that principals will make the most efficient use of these additional teachers.

Nevertheless, there are potential benefits that could come from this new collective agreement. By getting classroom complexity into the collective agreement, the STF has ensured that this issue will be on the table for the next round of bargaining. This could lead to policy changes that go beyond hiring a few additional teachers.

Specifically, it might be time to re-examine the wholesale adoption of placing most students, including those with special needs, in regular classrooms, since this policy is largely driving the increase in diverse student needs. While every child has the right to an education, there’s no need for this education to look the same for everyone. Although most students benefit from being part of regular academic classes, some students would learn better in a different setting that considers their individual needs.

Teachers across Canada should be grateful that the STF has taken a step in the right direction by moving beyond the simplistic demand for smaller class sizes by focusing instead on the more important issue of diverse student needs.

Michael Zwaagstra is a senior fellow with the Frontier Centre for Public Policy.

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Frontier Centre for Public Policy

Canada’s Democracy Is Running On Fumes

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From the Frontier Centre for Public Policy

By Gerry Bowler

Prime ministerial control, weak Parliament and a dependent press have left voters with little more than a ritual trip to the ballot box

Canadians take comfort in U.S. dysfunction, but the foundations of our own democracy are already showing serious strain

Canada isn’t the strong democracy we like to believe. Behind the peaceful elections and parliamentary rituals lies a system where power is concentrated in the hands of one person: the prime minister.

Since Confederation, Canada has avoided coups and revolutions. Governments have changed hands through orderly elections, a record many countries envy. On the surface, it looks like a stable democracy.

But look closer, and the cracks show.

The 1982 Constitution enshrined a Charter of Rights and Freedoms promising equality for all, and then immediately allowed governments to override those rights with the “notwithstanding clause,” which lets legislatures pass laws even if they conflict with the Charter.

The Emergencies Act, used for the first time during the 2022 trucker protests, gives Ottawa extraordinary powers to suspend freedoms and compel action. Its use included freezing bank accounts without court orders and compelling tow truck operators to provide their services to remove the vehicles, measures that left many Canadians unsettled about how quickly their rights can be curbed.

Parliamentary practice has also made the prime minister one of the most powerful elected leaders in the world. He decides who can run under his party’s banner, when MPs may speak and who sits in cabinet. He appoints the heads of federal agencies, judges, ambassadors and senators. In theory, these powers rest with the Crown. In practice, it is the prime minister who even chooses the governor general. Unlike Britain, where leaders must contend with internal party democracy, Canadian prime ministers enforce tight discipline, leaving backbench MPs with little influence.

This isn’t just theory. Pierre Trudeau’s iron grip on his caucus, Stephen Harper’s strict message control and Justin Trudeau’s demands for near-total loyalty all show how party discipline can stifle independent voices in Parliament.

When opposition parties pose a threat, a prime minister can simply prorogue Parliament, temporarily shutting it down without dissolving it, and avoiding debate. Jean Chrétien, Harper and Trudeau have all used this tactic when pressure mounted. After an election, the first sitting can be delayed for nearly a year. Even when Parliament does sit, question period, once meant to hold governments accountable, has become little more than a trading of insults. Canadians who tune in often come away with the impression of theatre, not oversight.

Parliament’s supremacy has been further eroded by section 52(1) of the Constitution, which gives the Supreme Court power to strike down laws passed by elected representatives and create new rights and obligations in their place. Courts have struck down laws on abortion, safe-injection sites and mandatory minimum sentences, reshaping policy without a vote in the House of Commons.

Meanwhile, the press, long considered democracy’s watchdog, now relies heavily on government subsidies such as the federal media bailout program. Sold as a lifeline to preserve journalism, it has raised unavoidable questions about independence. Critics argue that when newsrooms depend on Ottawa for survival, it blunts their willingness to challenge the same government that funds them. In a country where a strong, adversarial press is essential, the appearance of influence is almost as damaging as direct control.

All of this has reduced Canadian democracy to little more than a ritual trip to the ballot box every four or five years. With power so centralized, many voters understandably wonder whether their participation matters. No surprise, then, that a third of Canadians don’t bother to vote, with even lower turnout in provincial and municipal elections.

Canadians often look south at the polarization and chaos in American politics and congratulate ourselves for avoiding the same fate. But that smugness is dangerous. The U.S. reminds us how quickly democratic institutions can fray when power is abused and trust collapses. Canada is not immune.

The warning signs are here. Keep ignoring them, and our democracy will collapse: not with a bang but with a whimper.

Gerry Bowler is a Canadian historian and a senior fellow of the Frontier Centre for Public Policy.

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