As we get back into the saddle after the holiday season, I thought that it might be fun to think about what might be some of the constitutional issues that Canada might face in 2014. Of course, like all crystal globe seers, I am almost certain to be wrong on some if not most of them. But it will be interesting to look back at this short list at the end of 2014 and see just how wrong I was. So, this is not supposed to be exhaustive but here are just a few of the issues that I think Canada will be dealing with in the year to come.

The Senate Reference and How to Deal with Senate Reform

In a previous post, I commented on the Supreme Court’s hearing of the The Senate Reference. Most observers believe that the Court will hold that the appointment process via consultative elections as proposed by the current Bill will be found to require a constitutional amendment with resolutions of Parliament supported by resolutions of 2/3 of the provinces having at least 50% of the population. I agree with these observers. Because of the Senate scandal(s), however, even if the current government would like to ignore such a determination, it may be forced to take at least some preliminary steps to deal with Senate reform. Thus both the Supreme Court’s determination and how the federal government and the provinces react to it will likely present major constitutional issues for Canada in 2014.

The Supreme Court of Canada Reference

On January 15, 2014, the Supreme Court of Canada will hear a reference that will interpret the Supreme Court Act requirement that three of the Supreme Court justices be appointed from either a sitting justice of the Quebec Court of Appeal or Quebec Superior Court or the advocates of Quebec. This reference was prompted by challenges to the appointment of Mr. Justice Marc Nadon. At the time of his appointment, he was a justice of Federal Court of Appeal. The Reference will determine whether past membership as a Quebec advocate will suffice to meet the Supreme Court Act‘s requirement (arguably constitutionally protected by s. 41 of the Constitution Act, 1982).

Quebec Charter of Values

In 2013, the Quebec government introduced Bill 60 in the Quebec National Assembly. This Bill, known colloquially as the Quebec Charter of Values and bearing the actual but more unwieldy name of Charter affirming the values of State secularism and religious neutrality and
of equality between women and men, and providing a framework for accommodation requests, has been received positively by some but negatively, I would venture, by many. Apparently, the Quebec government is determined to press ahead with the Bill, creating issues and divisions where really none existed before. The federal government and many other groups have indicated that they will challenge the law if it somehow ever becomes law. The debate over the Bill will present interesting and important constitutional and human rights issues that all Canadians should be aware of.

Williams v. Attorney General of British Columbia – Aboriginal Self-Governance Equal to Canadian Laws?

In November 2013, the Supreme Court of Canada heard an appeal from the Court of Appeal of British Columbia (see Williams v. Attorney General for British Columbia, 2012 BCCA 285). The arguments put to the Supreme Court directly challenged the proposition that Canada’s laws should be given priority to the legal systems of the aboriginal peoples who governed the lands at the time of contact and the de facto imposition of European governance. If the Court accedes to the First Nations’ arguments, then Canada will be forced to deal with the issue as to why laws, legal structures and governances derived by Europeans’ “discovery” of what is now Canada should take precedence over the laws, legal structures and governances of the First Nations who were already here at that time. In my view, this case might be the sleeper issue with many observers outside the aboriginal law community unaware of its potential far-reaching ramifications. Of course, the Supreme Court may simply take an approach which side-steps these issues. But at some point, the Court will have to face these issues and adjudicate upon them.

Canada and its Prostitution Laws

As we all know, by December 20, 2014, Parliament will either have passed new prostitution laws or will have decided to leave the issue alone. I just cannot imagine the “tough-on-crime” Conservative government leaving the issue alone without deciding to take some action. Will they try to simply make prostitution itself illegal? Will they create legislation that will allow for regulated sites for the provision of prostitution services? Will they seek to invoke the notwithstanding clause? The debates in Parliament and the interaction between the government and the Court will undoubtedly involve many constitutional twists and turns.

Enbridge Pipeline and the Potential for a Provincial/Federal Conflict

In my province of British Columbia, the current of public opinion against the pipeline is nearly palpable. If the project receives federal approval (and it seems likely that it will), the pressure on the British Columbian government to do something to protect the provinces rivers and coastlines will be intense. Never mind the legal challenges by First Nations and environmental groups, it is entirely conceivable that the provincial government may take action that will lead to a good old-fashioned federal/provincial jurisdictional tussle. Stay tuned.

There are many more issues that are on the horizon and will come to the fore and many other issues that cannot be forecast. But let’s see how this list fares at the end of 2014.

Constitutionally Yours

Arthur Grant