“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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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 PM puts a moratorium on Senate appointments

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This week, Prime Minister Stephen Harper announced that there would be no further Senate appointments on his watch – either the Senate will be abolished or there will have to be substantial reforms to the Senate before he alters this position. The Prime Minister says that it is up to the provinces to come up with a solution. This is apparently part of his election platform. The question has to be posed: is the Prime Minister acting unconstitutionally?
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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

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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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

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


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

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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