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Archive for May, 2014

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One of the enduring criticisms of the Parliamentary system (as opposed to, for instance, the republican system in the United States) is that it lends itself to successive terms of one-party rule. The one party in question may change between cycles, but as long as a general election produces a majority party in Parliament, that party can dictate policy and legislation no matter the level of dissatisfaction among other parties or even the public. It is said that the ultimate "check" on that use of power is the fact that there will always be another election - 5 years or less away - and that that fact constrains the ruling party from making profoundly unpopular decisions. Throughout Canada's history, there have been many examples of ways in which, despite that system, dissent and disagreement can change policy, even if it does not originate on the opposite benches of the House of Commons. A random, "top of the head" instance was the impressive mobilization of public opinion against Pierre Trudeau's White Paper that proposed effectively doing away with Indian status in Canada. Another well-studied phenomenon was the way that Canadian provinces utilized the great British North America Act ss. 91 and s. 92 litigation at the turn of the 19th century and well into the 20th. One of the best examples was the provinces' savvy use of the British Parliament as well as the Supreme Court of Canada in 1982 to fundamentally alter the way the ruling Liberals were planning to patriate Canada's Constitution. The recent furor over the Marc Nadon appointment provides another micro-example. It will be recalled that the Harper government proposed the appointment of semi-retired Justice of Appeal Marc Nadon to replace Justice Morris Fish as a Quebec appointee to the bench. That appointment was successfully challenged and Nadon, J.A. was disqualified on the basis that a sitting Federal Court judge is ineligible to fill a Quebec seat on the Court. What came afterward was as stunning as it was unprecedented. In what appears as though it may have been a deliberately leaked story, a major national newspaper reported allegations that during the appointment process, the Chief Justice of Canada may have inappropriately taken a position on the appointment of Marc Nadon and even to have lobbied against it. What followed was several weeks of back-and-forth allegations as to whether the Chief Justice had done so, or whether the allegation was in fact a "smear campaign" against her, perhaps in frustration over a series of setbacks the Court had dealt the Government. Indeed, the Canadian Bar Association came out swinging in the Chief Justice's defence. Much of this was examined in our blog post regarding the law and order agenda. Within the last week or two, however, it came to light that Nadon, J.A. was not the only Federal Court judge on the government's wish list. In fact, it appears that four of the six proposed appointees were on the list, guaranteeing that at least one would find its way to the "final" list from which the Prime Minister would choose. It now appears that it may have been the fact of having four of six on the list that prompted the Chief Justice to flag the issue. Yesterday the media reported that the scandal had finally produced some results. Government sources have now confirmed that the federal government is consulting with the government of Quebec to jointly prepare a list of candidates for the Prime Minister's review. Government sources say that this is not meant to be precedent-setting, but through the very peculiar and, some would say, poor, handling of this issue, it may be that the Harper administration has given provinces something that at least three failed attempts to amend the Constitution (Victoria in 1971, Meech Lake in 1987 and Charlottetown in 1992) could not: a direct role in appointing Supreme Court Justices, and the first real erosion of the single party rule's absolute discretion to do so. Time will tell.


In recent posts, we have examined some of this government's tough-on-crime agenda. Over the past several years, this government has enacted important reforms to the criminal law which strengthen sentences for drug trafficking, gun possession and use, terrorism financing and the consequences of failing to win bail. Success for the government has been mixed. For example, in one recent decision, the Supreme Court of Canada upheld the "plain language" interpretation of the Truth in Sentencing Act, which abolished that the old regime of "double time" (or even more in some circumstances) for anyone charged after the changes took effect. This interpretation came as somewhat of a surprise to those at the criminal bar (both Crown and defence) who felt, and often assumed, that what the Parliament meant was that the new rules (abolishing double time and restricting enhanced credit to a maximum of 1.5:1) applied to those who committed offences after the changes, but not before.  However, the government has also suffered more than its share of setbacks, as we've shown in relation to drugs, guns and "dead time" for most offenders.  Indeed, the setbacks have been significant enough that some have postulated that the Prime Minister and Minister of Justice vented their frustration in recent veiled criticisms of the Chief Justice of Canada over whether she inappropriately "weighed in" on the controversial selection of the newest Supreme Court Justice. CTV News recently published an interesting timeline on that controversy. In the last couple of days, the media has also published some interesting insights on how the setbacks are affecting policy, and how, outside of the courtroom, the government may be trying to shape the agenda. Today, the Vancouver Sun reported that a Supreme Court of Canada decision that did not generate much media buzz when it came out, in which the Court struck down certain aspects of the federal government's tough-on-drinking-and-driving agenda, had thrown a real "monkey wrench" into the government's plans to expand the use of increased, random roadside sobriety checks using hand-held devices. As the law stands now, police are required to have a reasonable suspicion that someone is both driving AND has alcohol in his or her body before being able to demand a roadside breath sample. Not only is that the case, but a fail is not admissible against the driver in a prosecution - it can only be used to support further investigation. According to the Vancouver Sun, the government is just not sure how to react. And in another story today, the CBC reported that the government has in fact chopped the Department of Justice's research budget by a whopping twenty percent. A primary reason for the cuts was apparently that the Department was turning out research that was not "aligned with government or department [of Justice] priorities." An example? Apparently, one report found that, "many Canadians lacked confidence in the courts and prison system, but suggested it was the result of misunderstanding rather than any failures in the system, and that education could rectify the problem." Another report, "found that harsher terms for first offenders had little bearing on whether they re-offended — a finding critics held to be contrary to the government's agenda of tougher sentencing through mandatory minimums and other measures." The Department protests that the purpose of the cuts is unrelated to any sense of such dissent and insists that researchers will still be free to reach their own conclusions, but time will tell whether the research department's pre-cuts reputation for being "perceived as non-biased and ... valued for its high quality" will survive what may be the New Agenda.