Category Archives: Constitutional Principles

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

“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 →

Don’t cry for me, Argentina… A Tale of Two Countries

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Eva Peron – October 17, 1951 – Wikipedia

My wife and I have just returned from a trip to Argentina. It was a way for us to celebrate a milestone anniversary and we thought that we would choose somewhere in the world that would be different from the normal choices. Argentina sounded exotic and distant and so we booked our trip, not really knowing what to expect. Well, it has been an experience.

What has struck me is how many similarities there are between Canada and Argentina and yet, how many profound differences there are. Canada has about 35 million people. Argentina has about 40 million. Canada is a vast country – 4500 km wide. Argentina is the 6th largest country in the world, about 5000 km long. Canada has a northern identity (read Arctic). Argentina shoulders the Antarctic. Canada is blessed with natural resources. So is Argentina. Both are New World countries. Both were the subject of heavy European immigration. Both have strong indigenous populations. Both are federations. Argentina’s written constitution dates from 1853. Canada’s from 1867. With all these shared attributes, one might think that Argentina and Canada might be enjoying a similar fate in the world. But they clearly are not.

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The Supreme Court’s Exercise in Introspection

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Supreme Court This photo is from a file from the Wikimedia Commons.

On Wednesday, January 15, 2014, the Supreme Court of Canada is undertaking a rather interesting exercise. The Supreme Court justices will be hearing arguments from the Attorneys General of Canada, Quebec and Ontario as well as from certain intervenors in the Reference re Sections 5 and 6 of the Supreme Court Act which will determine whether Mr. Justice Marc Nadon has been properly appointed to sit amongst them.
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A New Year: What Major Constitutional Issues Might Canada Face in 2014?

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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.

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The Prostitution Laws Are Unconstitutional!: Attorney General (Canada) v. Bedford

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Image via Sydney Morning Herald

In an early Christmas gift to those of us who love constitutional law, the Supreme Court of Canada delivered its landmark ruling in Attorney General (Canada) v. Bedford, 2013 SCC 72 on Friday, December 20, 2013. While so many commentators refer to rulings of the Supreme Court as landmark, this one truly is a “landmark decision”. The unanimous judgment authored by Chief Justice McLachlin delivers clarification on a number of important issues and, of course, determines that the provisions of the Criminal Code prohibiting the use of bawdyhouses, living on the avails of prostitution and communication in a public place for purposes of prostitution are contrary to s. 7 of the Charter and cannot be justified by s. 1.

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Carter v. AGBC – right to physician-assisted death and rule of law

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Dying with dignity

This October, the British Columbia Court of Appeal released its reasons in Carter v. Attorney General for British Columbia, 2013 BCCA 435. The Court overturned the previous ruling of Madam Justice Lynn Smith who had cleared the way for physician assisted death. This case will undoubtedly be granted leave to appeal by the Supreme Court of Canada (see Case No. 35591).  The Court of Appeal was divided: Madam Justices Newbury and Saunders constituted the majority. Chief Justice Finch dissented.  Not only does the decision review the law respecting the right to a physician-assisted death but the judges also discussed the age-old principle of stare decisis, an essential element of the Anglo-Canadian constitutional principle of the rule of law.  Based on the Court of Appeal’s rationale, Canadians are not entitled to seek the assistance of a physician when at the end of their lives.  And the reason for that is that the Supreme Court of Canada ruled that the law imposing that restriction was constitutional twenty years ago in Rodriguez v. British Columbia (Attorney General), [1993] 3 SCR 519.

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When does the failure to fund legal aid become unconstitutional?

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Today I attended a Provincial Council meeting for the Canadian Bar Associaton – British Columbia Branch. At that meeting, representatives presented a report on behalf of the Legal Services Society, the organization responsible for delivering legal aid services to British Columbians. Their report was shocking. British Columbia’s funding of legal aid has dropped from being one of the best in the country in 2002 to one of the worst in 2013. Cuts to funding of the Society have resulted in drastic cuts to the services, in terms of numbers of persons represented, in terms of the numbers of types of cases in which legal aid representation can be obtained and in terms of the numbers of lawyers participating in legal aid cases. And more cuts are still to come.

In my view, the question as to the quality and quantity of access in justice in our society poses a constitutional issue.  In a case that is going to the Supreme Court of Canada, Vilardell v. Dunham, 2013 BCCA 65 (sub nominem Trial Lawyers Association of British Columbia v. Attorney General for British Columbia in the Supreme Court of Canada), the general question as to the application of the constitutional principle of access to justice is squarely raised. That appeal  will focus on whether hearing fees charged by the Government of British Columbia to users of the justice system are an impediment to justice and whether, if they do impede access to justice, that impediment is unconstitutional by virtue of constitutional principle promoting and protecting access to justice (the case will be heard on April 14, 2014). This case will not deal with legal aid but will confirm access to justice as a constitutional principle of the Canadian federation.

At some point, when those able to access our system of justice are restricted to the rich (or those whose circumstances permit representation by way of a contingency fee agreement), the justice system becomes a system of injustice. To be effective, there must be a reasonable means of participating in the legal process for all users, not just the few.

I am not suggesting that all access to justice must be equal for all participants. But it should not be one that is solely based on income levels and status in society. Arguably, for many matters now, “justice” as meted out by the legal system in British Columbia has become illusory for a large part of our society. Self-represented litigants are increasingly frequent in the courts and, when pitted against an opposition that is legally represented, are often overwhelmed and feel unheard and unjustly treated. Many of them may well be unheard and unjustly treated – not through the fault of the judges hearing their cases but simply because the battle is so unfairly skewed in favour of the represented party (whether that party be a private person or corporation or the State). Many of these matters require legal representation in order to be properly presented and dealt with.

Should the constitutional principle of access to justice mandate at some stage that the Government open its purse strings or allocate greater resources to legal representation for those facing dire circumstances in the courts of the land? At some stage, I am of the view that must be the result. Failure to give effect to such a principle would be to condemn whole components of society to alienation and marginalization.

I do not know whether British Columbia is at that point now. The presentation from the Legal Services Society that I watched was chilling. The numbers and charts and graphs that were put up on the PowerPoint screen represented in an impersonal, clinical manner an increasing number of deeply despaired and helpless people. I would rather see our Government and Legislature give positive and real effect to the notion of access of justice than having the courts force them to do so. But at some point, a line is crossed and the only line of defence for the rights of the people remains the courts. In British Columbia, let’s hope that the question remains an academic one.

Constitutionally yours,

Arthur Grant