Author Archives: artgrant

What happens if the PM simply stops appointing Senators? What about the GG?

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Could Governor General David Johnston have to decide what to do if no senators are appointed?

It could come to this. As of today, the Senate has 11 vacancies. By the end of the year, there could be as many as 17. According to some reports, the Prime Minister is loath to appoint any new senators. What would happen if Prime Minister Harper, still stinging from the rebuke by the Supreme Court of Canada, simply chose to not appoint any more senators? Assuming that he was able to stay in government long enough, over time, the Senate as a functioning institution would cease to exist.

Could this de facto constitutional amendment, one committed by inaction rather than action, bring about the abolition of the Upper House? A fascinating piece authored by James Cudmore of CBC News, “Is Stephen Harper obliged to fill empty Senate seats?” examines this issue. Mr. Cudmore interviews political scientists, Emmett MacFarlane and Philippe Lagasse, and eminent constitutional lawyer, Peter Hogg. While Mr. Cudmore’s article does not purport to present a definitive response to the question posed by the article’s title, it is certainly thought provoking.

Professor Lagasse is recorded as postulating that, if by refusing to appoint so many senators, the Prime Minister effectively and unilaterally fundamentally restructures the architecture and operation of the Canadian Parliament, at some point, the Governor General would be driven to the conclusion that the Prime Minister was acting unconstitutionally and have grounds to dismiss him. Now that would be interesting….

I recommend heartily that you review Mr. Cudmore’s article. The Prime Minister would do well to consider the article as well. In an earlier post “Stop in the name of love (or the Constitution) – the Supremes Block the Government’s Plans for Senate Reform” (April 25, 2014) prepared after the Supreme Court rendered its decision in Reference re Senate Reform, 2014 SCC 32, I wrote in relation to the abolition of the Senate:

Insofar as the proposal to simply abolish the Senate on the basis of the general amending formula, the Court dismissed the Attorney General for Canada’s argument as again putting “form over substance”. The Court concluded {para. 110]:

The review of constitutional amendments by an upper house is an essential component of the Part V amending procedures. The Senate has a role to play in all of the Part V amending procedures, except for the unilateral provincial procedure. The process of constitutional amendment in a unicameral system would be qualitatively different from the current process. There would be one less player in the process, one less mechanism of review. It would be necessary to decide whether the amending procedure can function as currently drafted in a unicameral system, or whether it should be modified to provide for a new mechanism of review that occupies the role formerly played by the upper chamber. These issues relate to the functioning of the constitutional amendment formula and, as such, unanimous consent of Parliament and of all the provinces is required under s. 41(e) of the Constitution Act, 1982.

It is clear, in my view, that the Supreme Court of Canada views the continued participation of the Senate as an essential component of the Canadian constitutional framework and only a constitutional amendment pursuant to s. 41(e) (requiring unanimity of the provinces) could change that. It follows, therefore, that the continued existence of the Senate is essential to the proper constitutional functioning of our federation. I will write later about the importance of the concept of rule of law, and how it is important that that concept be fostered not only in the courts, but also in the legislatures, the executives and the citizenry of the country (and I must give credit to Simon Potter, former President of the Canadian Bar Association, who made this point at his speech at the Conference of the Constitutional Law and Human Rights Section of the CBA on June 27, 2014). I will say now, however, that, if the Prime Minister is seeking to abolish the Senate by a deliberate choice not to appoint senators, he would be acting contrary to the Constitution of Canada and he would be undermining the principle of rule of law. I trust that that is not the case but we should all remain vigilant in protecting that fundamental constitutional principle and in upholding our Constitution.

I remain

Constitutionally yours

Arthur Grant

Tsilhqot’in Nation v. British Columbia – the Dawning of a New Era

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The Chilcotin, British Columbia

On Thursday, June 26, 2014, the constitutional framework of Canada experienced an earthquake. Whether it was an earthquake of Richter scale 7 or 8, I cannot say. But let no one think otherwise – this was a big one. Whether it was the Big One or not will remain to be seen. For the first time in Canadian history, there has been a finding that a First Nation has established their claim to Aboriginal title. The Supreme Court of Canada decided in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 that the Tsilhqot’in Nation has proven its Aboriginal title to a swath of some 1900 square kilometers in the interior of British Columbia. What precipitated the action in which the claim was made was the Province’s issuance of timber harvest licences without consultation to the First Nation in question. Now, not only are the timber harvest licences invalid but the provincial Forest Act is now constitutionally inapplicable to those 1900 square kilometres. This is just the first claim of hundreds. After this decision, governments across the country are running back to check the claims of the First Nations resident in their territories – just how strong are those claims to Aboriginal title? – did those treaties really extinguish Aboriginal title or were they some sort of lesser treaty? – have the First Nations been consulted and accommodated in accordance with the Court’s dictates?

The Chief Justice spoke for the full court. In a relatively short 153 paragraph judgment that was clearly crafted with care and that united the various themes and principles that have been articulated in previous cases, she pronounced on the requirements for proving Aboriginal title, the rights conferred by Aboriginal title, the duties owed by the provincial government at the time of infringement and the ongoing ability of the provincial government to legislate and govern in respect of the Aboriginal title lands. While I cannot do it justice in a single post, I will touch upon some of the highlights and then discuss what I think this judgment means in the long term.

Before I go there, however, I want to present the thesis that this is not simply an Aboriginal law case focussing on Aboriginal title: it is fundamentally a constitutional law case. Because of s. 35 of the Constitution Act, 1982, in my view, the import of this decision is that the First Nations of this country must now be engaged as full actors in our constitutional framework and not merely as historical irritants that must be somehow assuaged before moving on to getting the business of the country done. This is what makes this case so earthshaking in my view.
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Privacy and the Internet – The Supreme Court Defends Anonymity of Online Users

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Mr. Matthew David Spencer won the battle but lost the war in the recent ruling of the Supreme Court of Canada of R. v. Spencer, 2014 SCC 43. The unanimous 8 member panel has made it very clear that persons using the Internet have a reasonable expectation of privacy, including a reasonable expectation that their anonymity will be respected. While the Court allowed the admission of evidence obtained in this case through the police’s warrantless acquisition of Mr. Spencer’s identity from the internet service provider (“ISP”), from this point on, police in Canada must understand that they will need authorized searches through the use of properly issued warrants in order to overcome this presumption of preservation of anonymity.

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The Chief Justice and the Prime Minister

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Last week, Prime Minister Harper suggested that a phone call by Chief Justice McLachlin to Justice Minister Peter MacKay’s office about a potential appointment to fill a vacancy for a Quebec judge on the Court was improper. The Chief Justice took the unprecedented step of responding to this allegation by issuing a press release. It stated:

At no time was there any communication between Chief Justice McLachlin and the government regarding any case before the courts. The facts are as follows:

On April 22, 2013, as a courtesy, the Chief Justice met with the Prime Minister to give him Justice Fish’s retirement letter. As is customary, they briefly discussed the needs of the Supreme Court of Canada.
On July 29, 2013, as part of the usual process the Chief Justice met with the Parliamentary committee regarding the appointment of Justice Fish’s successor. She provided the committee with her views on the needs of the Supreme Court.

On July 31, 2013, the Chief Justice’s office called the Minister of Justice’s office and the Prime Minister’s Chief of Staff, Mr. Novak, to flag a potential issue regarding the eligibility of a judge of the federal courts to fill a Quebec seat on the Supreme Court. Later that day, the Chief Justice spoke with the Minister of Justice, Mr. MacKay, to flag the potential issue. The Chief Justice’s office also made preliminary inquiries to set up a call or meeting with the Prime Minister, but ultimately the Chief Justice decided not to pursue a call or meeting.

The Chief Justice had no other contact with the government on this issue.

The Chief Justice provided the following statement: “Given the potential impact on the Court, I wished to ensure that the government was aware of the eligibility issue. At no time did I express any opinion as to the merits of the eligibility issue. It is customary for Chief Justices to be consulted during the appointment process and there is nothing inappropriate in raising a potential issue affecting a future appointment.”

In a few words, the Chief Justice is right.

I must make a simple observation. Whenever the Prime Minister and his government lose a battle or whenever an issue is raised with one of their programs or policies, the person or agency winning the battle or raising the issue becomes an “enemy” of the government. It is then considered to be fair game for the government to attack that person or agency at any level and by any means.

The current enemy of the Prime Minister and his government appears to be the Supreme Court of Canada. It is not enough to state that he disagrees with the decisions of the Court. Instead, a baseless attack on the integrity of the Chief Justice is in order. And truth need not enter the equation. It seems that the Prime Minister and Justice Minister think that it is appropriate to try to twist what was a normal exercise of her authority, indeed a proper discharge of her constitutional obligations (namely, providing prior input to the Prime Minister and the Justice Minister about a potential appointment to fill a vacancy on the bench), into some sort of sordid show of impropriety.

In acting in this way in relation to the Court and the Chief Justice, the Prime Minister is simply following a practice that he has cultivated over the last decade. He does not simply disagree with the Leader of the Opposition, Mr. Mulcair, or the Leader of the Third Party, Mr. Trudeau, he must seek to impeach their personal integrity. Ditto for the Chief Electoral Officer Marc Mayrand. Same for Parliamentary Budget Officer Kevin Page. The list goes on. In so doing, the Prime Minister and his government is bringing the entirety of Canada’s central institutions – the House of Commons, the Senate, the Supreme Court of Canada, the role of responsible and democratic government – all into disrepute. He is undermining the very foundations of the Canadian federation.

A constitution must not be simply written and read. It must be lived and embraced by all of its constituents. The Prime Minister would do well to learn to appreciate the underlying constitutional principles that support the country that is Canada.

I remain

Constitutionally yours

Arthur Grant

Trinity Western University and Law School – Is the Law Society Complicit in the Discrimination if it Accredits TWU?

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On April 11, 2014, the benchers of the Law Society of British Columbia approved the application of the future law school of Trinity Western University, a Christian faith-based university located in the Fraser Valley of British Columbia, to be an accredited law school. TWU obliges its students to sign and comply with a religious-based covenant that only sex in marriage between a man and a woman is permitted. The concern is that this covenant discriminates against gays and lesbians (and unmarried couples). The Law Society’s vote was 15 to 6 in support of the application. One of British Columbia’s most eminent constitutional scholars, Joseph Arvay, Q.C., was one of the six who opposed the application. On April 24, 2014, the Law Society of Upper Canada rejected TWU’s application for accreditation. The vote was 28 to 21 against accreditation. The next day, the Law Society of Nova Scotia met and voted 11 to 9 to approve TWU’s application — on the condition that TWU drop the requirement that its students sign and respect the covenant. In the meantime, back on the West Coast, over 1000 members of the Law Society of British Columbia signed documents demanding that the decision of the Law Society’s benchers be reconsidered by a full meeting of the membership. Only 500 such members were necessary to require such a special meeting. That meeting will have to be held sometime in the next two months. This collision between equality and anti-discrimination rights on one hand and freedom of religion has been played out before. The British Columbia College of Teachers and TWU went to the Supreme Court on this issue nearly 15 years ago and TWU won: Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31.. Before the law societies, TWU has argued that this case is no different. I must say that I disagree.

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“Stop! In the name of love (or the Constitution)” – The Supremes Block the Government’s Plans for Senate Reform

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Today, the Supreme Court of Canada denounced the federal government’s plans to reform the Senate by unilaterally imposing term limits for senators and by holding non-binding “consultative” elections for the selection of future senators. The Court also decried the proposal that, by use of the general amending formula, the Senate could be abolished. The decision, Reference re Senate Reform, 2014 SCC 32, was rendered by “the Court” without any one of the eight justices who heard the appeal identified as the author of the reasons for judgment. In making these pronouncements, the Court did no more than its job: it upheld the Constitution of the country and held the federal government (and provincial governments) to the letter, spirit and intent of the supreme law of the land. For that, we all owe the Court a debt of gratitude.

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BC Court Upholds Transcript Fees Requirement for Appeals but Pleads for Government to Act to Increase Access to Justice

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On Friday, in Allart v. Alec’s Automotive Machine Shop (2003) Ltd., 2014 BCSC 476, Madam Justice Bruce of the British Columbia Supreme Court ruled that the appellant’s constitutional challenge of Rule 18-3 of the Supreme Court Civil Rules (appeals from Provincial Court, Small Claims) could not succeed. In so doing, however, she recognized the plight that many litigants face when dealing with an appeal from the Provincial Court, namely the costs of a transcript of the Provincial Court proceedings. In my view, while this case does not deal substantively with the issue as to whether the requirement that one pay the costs of the transcription of the proceedings below results in a barrier to access to justice, it raises tangentially the question as to whether access to justice has become an illusory concept for most Canadians.
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The Supreme Court Rules on the Eligibility Requirements for its Three Members from Quebec – Back to the Drawing Board for the Prime Minister

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Another day and another defeat for the Government of Canada. This time, a six-to-one majority of the Court has ruled that the Prime Minister’s attempt to appoint Mr. Justice Marc Nadon, a supernumerary justice of the Federal Court of Appeal who, prior to his appointment to the Federal Court, had been an advocate of the Province of Quebec for more than 10 years, was not constitutional and his swearing in was void. Moreover, the Government’s attempt to amend the Supreme Court Act was found to be unconstitutional. Continue reading →

The Court says “No” to retroactive punishment

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Today, in the case of Canada (Attorney General) v. Whaling, 2014 SCC 20, the Supreme Court of Canada pushed back against one small element of the government’s “tough on crime” agenda, namely, the retroactive abolition of early parole for offenders already serving their sentences. In a unanimous decision, the Court held that the Charter‘s prohibition against double punishment (s. 11(h)) presented an insurmountable obstacle to the government’s attempt to get tough, not only on offenders who were to be convicted and sentenced in the future, but on offenders who had already previously been convicted and sentenced before the amending legislation, Abolition of Early Parole Act, took effect.

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The Internet Turns 25 Years Old – The Court and the World Wide Web

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In one of my earlier posts, “Freedom of Expression and the Internet – The new realities of a cyberspace inhabited by copycats” (January 24, 2014), I provided the first installment respecting the relationship between freedom of expression and the courts in the World Wide Web. This is the next post in that series. The Internet is a relatively recent phenomenon but despite its youth, it has reshaped our human environment. After only 25 years, not only has it changed our economies and our social lives but it is penetrating deep into our jurisprudence. One might argue that the courts and the law are institutions that are slow to alter course. That is usually true. But at the level of the highest court in our land, the Internet appears to have seized the imagination of the justices.

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