Coronavirus – as viewed by Constitutionally Canadian

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Image by Thanasis Papazacharias from Pixabay

The coronavirus crisis in Canada

Like so many other countries around the world, Canada has been rocked by the coronavirus or more specifically CoVID19 virus. Only a short time ago, Canadians thought that this virus was a problem that affected other countries, not ours. That perception is long gone.

We are now under a state of emergency. By and large, we work from home – if we can work at all. We practise “social distancing”, a phrase that most of us had never heard back in February of this year. The provinces and territories have issued public health orders, restricting our movement, our social interactions, our businesses, our way of life. The federal government has limited the ability of people to enter and leave the country. Massive spending programs, the likes of which we have not seen since the last World War, are being unleashed. Unemployment greater than anything experienced since the Great Depression is expected.

All of these changes have occurred in weeks, sometimes days, and huge pressures have been exerted on our federation, on our democracy, on our governance. Our constitutional framework is being tested and we have only just begun. Here are some of the constitutional issues that I think are coming to the fore as a result of the coronavirus outbreak:

Charter of Rights issues

The orders of the different orders of governments clearly are having an effect on the mobility rights of Canadians and the permanent residents of Canada. Prior to the coronavirus outbreak, the ability to enter or leave Canada was the unquestioned right of a Canadian citizen, protected by s. 6 of the Charter. Now that right is subjected to significant restrictions, of a level and nature not normally seen in peacetime.

Not only is the right to enter and leave the country being affected, but so too is the right to travel between provinces. While the restrictions on this right (also protected by s. 6) are less dramatic or pronounced, they do exist and some provinces, including my own, British Columbia, are actively advocating that residents of other provinces do not come across our provincial borders.

Intra-provincial mobility is being restricted in different provinces. This right to move freely that descended from the rights of freemen to move without restrictions from the nobility is being clamped down now in an attempt to limit the spread of the contagion. Constitutional protection of this right is now found in s. 7 of the Charter. 

Mobility rights are not the only rights being affected. Many of the fundamental freedoms are directly impacted by the measures. Today is Passover, a sacred Jewish holiday. This weekend is Easter, one of the most celebrated Christian holidays. Earlier last month was Nowruz, a Persian religious holiday. All of these religious holidays are normally celebrated collectively. Under the public health orders, such collective gatherings are banned. Accordingly, the fundamental freedoms of religion, association and peaceful assembly are affected.

In all of these instances, the question must be posed whether the measures adopted to combat the coronavirus outbreak are proportionate and justifiable given the limits they impose on such constitutional rights and freedoms.

Canadian federalism

Just a few months ago, the Canadian federation was being rocked by protests, with railways and ports being shut down. The provinces were blaming each other and the federal government. Indigenous nations were seeking a meaningful voice.  The coronavirus has changed the focus.

Today, we are witnessing huge investments in time, money and human resources in fighting the coronavirus, limiting its spread, “flattening the curve”, understanding it, and developing a vaccine or treatment for it. As well, gigantic plans are being created for supporting the Canadian population when so many are out of work and for bringing our economy back to life after the virus is brought under control.

Although these are early days, the provinces and the federal government appear to be working together. Things are just being done. Legal frameworks are being erected quickly. The normal care regarding constitutional jurisdiction is, most likely, not being exerted. As we progress through what will likely be months of battle against this virus, the question will be whether jurisdictional limits have been exceeded. It will also be whether this apparent exercise in cooperative federalism will continue and whether it may serve to shape future constitutional debates.

Another issue that will have to be resurrected will be whether the Indigenous Nations of Canada have been overlooked. That whole issue of Indigenous jurisdiction and Indigenous law which was at the forefront of our political and constitutional debate back in January has not gone away. But it would seem that the niceties of that debate have been pushed to the side as the federal, provincial and territorial governments deal with the immediacy of the crisis. So, how will we return to deal with that issue in the aftermath of CoVID19?

Parliamentary democracy

Just this Monday, Prime Minister Trudeau announced that the government was actively looking at whether Parliament could sit virtually.  If a virtual Parliament came to fruition, that could be a fundamental constitutional development and one that might survive the coronavirus outbreak.

There are already critics of such a proposal.  Adam Wherry wrote an op-ed today in which he suggested that Parliament requires that the members get to know each other, work together and interact with each other. He has good points. That being said, a virtual Parliament may make it easier for parliamentarians of the more remote or distant parts of the country to maintain better contact with their constituents and yet still participate in the parliamentary debates and committees.

I suspect that there would need to be a number of small “c” constitutional amendments in order to make this virtual Parliament a true and lasting reality. But it should be explored and not just for this crisis.

I hope to revisit these and other constitutional issues being raised by the coronavirus over the next few weeks. I invite you to reach out to me by commenting on this post, to suggest topics for discussion, and to provide alternate perspectives.

I remain

Constitutionally yours

Arthur Grant

Post script

It has been almost two years since I did my last blog post. I had just been recovering from significant surgery (bilateral hip replacement) and I was focused on that. As well, my work levels exploded, a happy situation I suppose.

I can report that, not only did I recover from my hip surgery but I exceeded everyone’s expectations, including my own. I returned to my passion, rowing, and competed both in 2018 and 2019. If the coronavirus permits, I will be rowing and competing again this year and for as long into the future as my health and circumstances permit.

Work is still busy but I think that I have found ways to tame it.  I have some great people working with me and they make it all possible.

So the long and short of it all is that I hope to be doing a lot more of Constitutionally Canadian. You will probably find that I will be making more of an emphasis on the issue of Indigenous jurisdiction, Indigenous governance and Indigenous laws. I think that these present some of the biggest constitutional issues that our country will face and I aspire to make a contribution towards an understanding of them and, with luck, towards a resolution and lasting reconciliation.

AG

A new appointment to the Supreme Court of Canada: congratulations (and some unintended consequences)

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Sheilah Martin named by Prime Minister Trudeau to the SCC

Today, the Prime Minister announced that his pick for the next justice of the Supreme Court of Canada is Sheilah Martin, currently a member of the Alberta Court of Appeal. If approved, Justice Martin will replace retiring Chief Justice Beverly McLachlin. It is hard to argue with Justice Martin’s credentials. Fluently bilingual. Schooled in both the common law and civil law traditions. Over twenty-two years of being a judge. A former dean of the University of Calgary Law School. Her appointment will ensure that the Court’s female judges remain four of the nine justices. She is eminently qualified to serve on the Court and we should all join in congratulating Justice Martin on having been selected by the Prime Minister for this most significant role.

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Decision of Indigenous Groups to Boycott Council of the Federation Meeting Underscores the Need for Constitutional Reconciliation and Inclusion

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The headline on today’s CBC News website says “Indigenous leaders to boycott Monday’s meeting with premiers”. The article outlines how three Indigenous groups, namely, the Assembly of First Nations, the Metis National Council and Tapirit Kanatami, have decided to withdraw from the Council of the Federation meeting where the leaders of the provinces and territories will be meeting because they (the indigenous leaders) are not being recognized as full and equal participants. In my opinion, this article demonstrates the pressing need for Canada’s reconciliation process to recognize the governments of Indigenous peoples in a more formal and constitutional manner.

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No Electoral Reform for Canada = the Liberal Government Renegs on its Promise

Today, the new Minister of Democratic Institutions, Karina Gould, announced that the Liberal government has officially abandoning the objective of electoral reform. Thus, notwithstanding the promise that 2015 would be the “last federal election conducted under the first-past-the-post system” made during the 2015 electoral campaign, Canada will be faced with more elections which permit very small percentages of the voting public to put in place electoral majorities.

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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.

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The “new” Senate takes shape – achieving parliamentary reform without constitutional amendment

On October 27, 2016, the Prime Minister named nine new senators to the Senate, with 12 more to be appointed in the coming days. These new “independent, non-partisan” senators along with their future fellow colleagues will soon comprise the largest “bloc” of senators in the Upper House, surpassing the Conservative senators. What Prime Minister Trudeau has done by moving to a non-partisan, merit-based appointment process is major parliamentary reform, all without the need for any constitutional amendment whatsoever.

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

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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How NOT to Achieve a New Electoral Process

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The Minister of Democratic Institutions, Maryam Monsef, has announced the creation of a special committee to investigate and oversee what sort of electoral process should be adopted in time for the next federal election, currently slated for 2019. In my view, the committee approach she is using is fraught with problems. No matter how “good” its recommendations may be, they will be viewed as the product of a Liberal government-biased committee and will not bear the hallmark of impartial legitimacy that any electoral process must have.
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Electoral reform for Canada – to have or not to have a referendum?

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Recently, there have been increasing cries for the Liberal government to hold a referendum on any new electoral system. On the CBC News website today, there is a report on a poll conducted by Insight West which found that nearly two thirds of Canadians polled considered that there should be a referendum on any new system of voting.  But would this be a good way to decide upon such an issue?

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Required – A Redesigned Senate for Canada, its Regions and its Indigenous Peoples

Maryam Monsef

 

On January 19, 2016, the Honourable Maryam Monsef, Minister of Democratic Institutions, announced the appointment of first members of the non-partisan panel that is charged with the task of coming up with qualified candidates for Senate vacancies. The panel, which has three federal representatives, two Ontario provincial representatives, two Quebec provincial representatives and two Manitoba provincial representatives, is supposed to come up with five qualified candidates for each Senate vacancy for those three provinces. The recommendations are not binding on the Prime Minister who ultimately submits his choices to the Governor General. The nine members of this initial panel are all eminently qualified. But there is criticism of the process. Some of the criticism has merit.

Last year, when Prime Minister Trudeau announced that he would press ahead with his plans for a non-partisan advisory panel to assist in choosing candidates for the Senate, BC’s Premier, Christy Clark, immediately slammed the proposal. She retorted that BC would not participate. On the same day as the Prime Minister’s announcement, she tweeted that the “Senate has never represented BC’s interests at the national level”. Later, she issued a statement: “[The proposed] changes do not address what’s been wrong with the Senate since the beginning. It has never been designed to represent British Columbians or our interests”.   She has argued that BC is grossly under-represented, only getting 6 seats in the 105 seat Senate, and Mr. Trudeau’s changes would only serve to the Senate to think that it is somehow legitimate and that this would allow it to think that it could make decisions on behalf of the country.  She stated that the Senate does not have that power and should not have it.

Premier Clark is both right and wrong. Furthermore, in my opinion, British Columbia is not the only party that should be seeking structural changes to the Senate. Specifically, I believe that the indigenous peoples of Canada should be included in any discussions involving revisions to the Senate.

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