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.
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.
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?
On July 27, 2015, Prime Minister Stephen Harper named Mr. Justice Russell Brown of the Alberta Court of Appeal to the Supreme Court of Canada. Justice Brown has been a judge for two and a half years. I am not going to comment on whether Justice Brown is or is not a good appointment. His track record as a judge is too short to be able to honestly answer that question. Only time will tell. But I am going to comment on the process, or more properly speaking – the lack of process, that the Prime Minister is following.
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.
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