“Rule of Law” – Is it under Siege?

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This last year has seen surprising developments throughout the Western world. Probably none is more surprising than the changes that have been the consequences of the election of American President Donald Trump. His daily Tweets (his preferred means of communicating White House policy it would seem) are often confusing, contradictory, and,…, well…, frankly concerning. Like many, I have found many of President Trump’s pronouncements troubling. They demonstrate to any who have the most basic comprehension of the proper functioning of western democracies that he does not understand or appreciate the importance of basic constitutional norms. Like freedom of the press. Or worse, like rule of law.

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The birthday of Canada’s Constitution and the British Columbian lesson

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Today marks the 150th anniversary of the date that Canada’s constitution came into effect. While many are saying that today is Canada’s 150t birthday, it is more accurate to say that it is the “150th birthday” of Canada’s written federal constitution. On July 1, 1867, the British North America Act, now named the Constitution Act, 1867, came into force and the fledgling federation known as Canada was created. But Canada and her constitution existed long before that, Even in the political and legal sense of the word, “Canada” was a concept or an entity in one form or another well before 1867. There was the united Province of Canada, Upper and Lower Canada, and, of course, the indigenous nations that spanned the territories of what is now Caanda for long before 1867. But today, I would like to commemorate the 150th anniversary of Canada’s BNA Act (let’s use the former name today for old time’s sake). I would also like to take notice of what transpired recently in British Columbia to underscore that Canada and her constitution are much, much older than 150 years.

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UK Supreme Court rules – Parliament must authorize the triggering of Brexit – R. v. Secretary of State for Exiting European Union, 2017 UKSC 5

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Today, in an 8:3 split ruling in R. v. Secretary of State for Exiting the European Union, 2017 UKSC 5, the United Kingdom Supreme Court held that Parliament must first authorize the exercise of Article 50’s triggering of the notice for exiting the European Union. While this blog focuses on Canadian constitutional law, what I found of interest was the discussion by the majority on the role of royal prerogative under the Constitution. Much of that discussion is applicable in the Canadian context.
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Constitutional Democracy and Rule of Law and the American Election

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Yesterday, I did two things of note. First, I listened with interest to a webinar sponsored by our Constitutional and Human Rights Law Section of the Canadian Bar Association entitled “Access to Information at a Crossroads: Implications of the Long-gun Registry Case”. Second, I watched the televised returns of the American election.

Notwithstanding its title, the webinar was about rule of law and how access to information is inextricably interwoven with that concept. Its speakers were Suzanne Legault, Information Commissioner of Canada, and Dr. Vincent Kazmierski, Department of Law and Legal Studies of Carleton University. Using the Long-gun Registry case as an example, the speakers illustrated how the rule of law was involved and perhaps even imperilled from various perspectives. Dr. Kazmierski presented a thesis that postulated that the government of the day abused its powers to overwhelm legitimate rights to access to information and that, in so doing, disrespected essential elements of the principle of rule of law. (You can probably still listen to the excellent webinar by contacting the CBA Professional Development at pd@cba.org.)

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The Senate says “’nuff”… Bill C-14 approved by the Red Chamber

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This is just a quick post to note that Bill C-14 in the more restricted format passed by the House of Commons – for the second time – was just approved by the Senate by a 44 to 28 vote. Earlier, the Senate had returned the Bill to the House of Commons with a substantial majority of Senators agreeing that the House of Commons’ version was too restricted, especially considering the requirement that a person seeking medical assistance in dying (“MAID”) be at the point where his or her natural death was “reasonably foreseeable”. Constitutional experts had testified before the Senate to the effect that this version of the Bill was unconstitutional because it stripped away rights from a group of persons that the Supreme Court of Canada had expressly determined were theirs. So what next?

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Don’t complain when the Senate fulfills its constitutional role: Bill C-14 as a case-study

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Government ministers and opposition leaders were in a flap this last week. The Senate dared to amend Bill C-14, the bill on physician-assisted dying and strike out one of the qualifications that the House of Commons had insisted on – namely, that natural death be reasonably foreseeable. Opposition Leader Rona Ambrose stated in response on June 9, 2016:

“We have the courts making laws in this country and now we have an unelected Senate changing the laws of an elected House….”

Minister of Health Jane Philpott stated that the government was “concerned” about the amendments to a bill that “has been supported by a vote in the House of Commons”. Justice Minister Jody Wilson-Raybould called the amendment a “significant one” and said that it would “broaden the regime of medical assistance in dying in this country and we have sought to ensure that we, at every step, find the right balance that is required for such a turn in direction.”

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The legal profession’s ability to advocate in the public interest is upheld: Canada (Procureur general) v. Barreau du Quebec, 2014 QCCA 2234

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In a decision made in late 2014, the Quebec Court of Appeal affirmed the legal profession’s unique role in undertaking constitutional challenges. In a unanimous decision (Vezina, Savard, and Vauclair JJA), the Court upheld Justice Roy’s decision to reject the Government of Canada’s application to strike the claim of the Barreau du Quebec for want of standing. The relatively short decision, Canada (Procureur general) v. Barreau du Quebec, 2014 QCCA 2234, was released on December 4, 2014 and was a judgment “par la Cour”.

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The PM names a new Supreme Court of Canada justice – but ignores his own protocols

Suzanne Cote

Photo of Future SCC Justice Suzanne Cote from Osler, Hoskin & Harcourt website

Prime Minister Harper announced late last week that his choice for replacing soon to retire Justice Louis LeBel was Suzanne Cote, a respected member of the Quebec bar and commercial litigator with the esteemed law firm of Osler, Hoskin & Harcourt. While his choice of judge cannot be faulted, the manner in which he is carrying out this nomination can be.

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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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