2016 – a year in constitutional retrospect

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As 2016 fades into the distance, I thought that it might be useful to look back and see what were some of the biggest constitutional developments in the Old Year. There were many but I think that a few stand out for me. A number do not involve constitutional judicial determinations but they are major Canadian constitutional developments nonetheless.

Medical Assistance in Dying

Last year, Canadians were finally granted legal access to medical assistance in dying. Although only really available since June, hundreds of Canadians applied for and were granted such assistance. Following in the wake of Carter v. AGBC, the federal Parliament ultimately adopted the Bill C-14, a legislative response that was far more restrictive than the criteria outlined by the Supreme Court of Canada. For those who did meet the narrow definitions in the legislation and who feel the need to avail themselves of such medical assistance, this has meant a sooner and humane end to intolerable suffering.

R. v. Jordan, 2016 SCC 27

This decision of the Supreme Court of Canada has imposed a “presumptive ceiling” as to how much time can transpire between the charge and the end of the trial of the accused: for provincial court matters, 18 months; for superior court matters, 30 months. After those presumptive ceilings have been exceeded, the burden passes to the Crown to demonstrate that exceptional circumstances existed to justify the delay. The decision has been criticized (not just by the minority but by numerous academics and police and Crown officials). But there can be no denying the effect that this decision has had on the handling of criminal matters before the courts.

Independent nomination process for the Senate

In the spring of 2016, the Prime Minister announced that there would be independent nomination committees, one for each province or territory in which there is or will be a Senate vacancy. Canadians were invited to apply and their applications were vetted by the nomination committees. The Prime Minister then chose to appoint the Senators from the short lists provided by the nomination committees. The independent senators have become now the largest bloc in the Senate and have started to flex their independent muscle. Thus Bill C-14 was not merely rubberstamped but rather the legislation was sent back with amendments to the House. Recently, budget bills have been similarly scrutinized by the Senate. With party discipline now absent (or fast disappearing) in the Senate, the Upper House is truly becoming the chamber of second sober thought, removed from the hurly burly of partisan politics that dominates the House of Commons. Some think this to be a good change whilst others think that we are descending into legislative chaos. But none can disagree with the statement that this was a major constitutional development.

Independent nomination process for the Supreme Court of Canada

Like the nomination process for the Senate, the Prime Minister put into place a new nomination process for the highest court. Persons interested in being named to the Supreme Court must apply and be vetted by an independent nomination committee which has representation from the Federation of Law Societies, the Canadian Bar Association, the Judicial Council of Canada and the Council of Canadian Law Deans as well as three more members appointed by the Minister of Justice, two of which who are not part of the legal community. A short list is provided by the committee to the Prime Minister from which list the appointment is made. One of the criteria for the nomination committee’s consideration is functional fluency in both official languages. Again, while not strictly a constitutional amendment or a constitutional decision, this change was a significant development in Canada’s evolution.

Electoral reform – a 2016 disappointment

This file was badly mishandled by the Liberal government last year. An all party committee which worked to put forward recommendations for electoral reform. One of its key recommendations was to put forward a proposal for proportionate representation to a nation-wide referendum. The government response to this committee’s proposal appears to be shelve the recommendation and instead mail out an invitation to all Canadian households. I completed that questionnaire but frankly found it to be somewhat self-serving and doubt that it will produce useful results.

Tinkering with the election apparatus has been done by previous governments – sometimes with dubious objectives. In a democracy, nothing is really more central than the right to vote and how that right may be exercised. I can only hope that the present government regains its resolve to tackle this issue and to ensure that real progress is made on the question of electoral reform in 2017.

In all, 2016 was a year of substantial constitutional news. Let’s hope that 2017 has overall positive constitutional direction for Canada.

I remain

Constitutionally yours,

Arthur Grant

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