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.
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.
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.
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.
This week Prime Minister Trudeau announced that, henceforth, the federal government would be following a new process for appointing new justices to the highest court. In article published in The Globe and Mail on August 2, 2016, “Why Canada has a new way to choose Supreme Court judges”, the Prime Minister outlined the basic elements of the reform to the naming of Supreme Court justices. They can be summarized as follows:
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?
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.”
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.
On February 16, 2016, the Quebec Superior Court upheld the Succession to the Throne Act, 2013, an Act of the federal Parliament that gave Canada’s assent to an Act before the Parliament of the United Kingdom that changed the rules of succession for the British monarchy such that the system of male preference primogeniture under which a younger son could displace an elder daughter in the line of succession was to be ended and also such that the rule that rendered anyone who married a Catholic became ineligible to succeed to the Crown was similarly removed. In Motard v. Procureur general du Canada et al., 2016 QCCS 588, Justice Claude Bouchard examined the question as to whether the amendments to the royal succession, and Canada’s assent to them, were changes to Canada’s constitution and, if so, whether Part V of the Constitution Act, 1982 was therefore engaged.
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?