Constitutional Forum (Journal)
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Conacher Missed the Mark on Constitutional Conventions and Fixed Election Dates
No full textGiven the fundamental role that conventions play in the Canadian constitution, it is not surprising that litigants try from time to time to engage the courts in defining or even enforcing the terms of a particular convention. The Federal Court’s September 2009 decision in Conacher v. Canada (Prime Minister)1 is the latest high-profile example. Duff Conacher, Coordinator of Democracy Watch, had launched a court case that challenged the 2008 federal election call as contravening either the provisions of the government’s fixed-date election law (Bill C-16,2 passed in 2007), or conventions supporting the law. The Federal Court rejected Conacher’s application, holding among other things that there was no constitutional convention constraining the prime minister from advising an election before the October 2009 date prescribed in the statute. Conacher’s appeal was also rejected. In May 2010, the Federal Court of Appeal upheld the lower court’s decision, stating that "no such convention exists" based on the evidentiary record.3 For many observers, the Conacher decision may seem unsurprising and solidly based on the existing jurisprudence dealing with constitutional conventions
Introduction
No full textIn Vancouver’s downtown eastside, just down from the Carnegie Community Centre on East Hastings Street, stands Insite. Funded by Vancouver Coastal Health, Insite is a supervised safe injection site for illegal drug users—currently the only such site in North America. It is also at the centre of a heated political and legal struggle over the boundary between health and crime. InPHS Community Services Society v Canada (AG) , the courts have been articulating that struggle in the language of federalism, division of powers and interjurisdictional immunity. Insite, in the courtroom and in the media, raises a host of questions not only about the boundaries of provincial and federal powers, but also about drugs, harm, crime, health, poverty, community, the economy, urban planning, equality, epidemiology, social programming, race, gender, coalition building and municipal politics. Quite the menu of legal, social, and political possibility. In this Issue ofConstitutional Forum, we have drawn together a series of papers that were generated in the context of a pedagogical encounter at the University of Victoria, one that had students and faculty engaged in a collective exploration of the Insite case
Insite: Site and Sight
No full textThe Insite case is a great study for students of constitutional law. The twinning of a claim of interjurisdictional immunity—in a somewhat novel application to provincial jurisdiction—to the assertion by some of Canada’s most marginalized citizens of the fundamental freedoms of life, liberty, and security of the person delivers a compact and compelling recitation of basic features of Canada’s constitutional landscape
The Speaker’s Ruling on Afghan Detainee Documents: The Last Hurrah for Parliamentary Privilege?
No full textOn 3 January 1642 the Commons sat, and claimed a breach of privilege which, deliberately or not, incited the king to attempt force. On 4 January [King Charles I] entered the Chamber, leaving the door open so that members could see the troops "making much of their pistols." ... He asked the Speaker if the five [rebel MPs] were present. Lenthall, on his knees, spoke. "May it please Your Majesty, I have neither eyes to see, nor tongue to speak in this place, but as the House is pleased to direct me, whose servant I am here; and I humbly beg Your Majesty’s pardon that I cannot give any other answer than this to what Your Majesty is pleased to demand of me.
The Fixed-Date Election Law: Constitutional Convention or Conventional Politics?
No full textOn September 17, 2009, Justice Michel Shore of the Federal Court of Canada refused a request from Duff Conacher and Democracy Watch, applicants, to declare "that a constitutional convention exists that prohibits a Prime Minister from advising the Governor General to dissolve Parliament except in accordance with Section 56.1 of the Canada Elections Act."1 That section, known as the "fixed-date election law," received Royal Assent on May 3, 2007. The court application was triggered by Prime Minister Harper’s September 7, 2008 request to Governor General Michaëlle Jean asking her to dissolve Parliament and call a "snap" election. The resulting election, held on October 14, 2008, returned another Conservative minority government, albeit a stronger one
The Politics of Hate Speech: A Case Comment on Warman v Lemire
No full textIn September 2009, the Canadian Human Rights Tribunal waded into a highly public and acrimonious debate about the role of human rights tribunals and commissions, especially in policing hate speech. In Warman v Lemire,1 the Tribunal held that section 13(1) of the Canadian Human Rights Act2 (CHRA), which prohibits the communication of hate messages, infringed the constitutional guarantee of freedom of expression, section 2(b) of the Charter of Rights and Freedoms.3 The decision added to a firestorm of media, political and academic debate about whether anti-discrimination statutes should prohibit hate speech. The Warman decision is complicated by a twenty-year-old Supreme Court ruling, in a 4–3 decision, that a predecessor provision in the CHRA is constitutional. In this article, I argue that the Tribunal’s decision is logically unsound and likely the result of ends-based or teleological reasoning. In my view, ends-based reasoning does not assist in Charter analysis as it produces decisions that call into question the legitimacy of the courts. This article first outlines the facts in Warman and the Tribunal’s holding on the constitutional issues. It goes on to survey the legal and constitutional background to the Warman decision and discuss the Taylor precedent. It then describes the Tribunal’s reasoning on constitutional issues, including the Taylor decision and amendments to the CHRA after Taylor. Finally, it criticizes the Tribunal’s ends-based reasoning and argues that this type of reasoning is illegitimate in constitutional decision-making
Jurisdictional Justice, Democracy and the Story of Insite
No full textInsite, North America’s first legally sanctioned safe injection site, opened its doors in 2003. It did so after several years of political struggle by a network of community groups in Vancouver’s Downtown Eastside (DTES), the neighbourhood it serves. The grassroots movement secured support at municipal, provincial, and federal levels of government. The latter expressed its approval by granting an exemption that protected Insite staff and patients from prosecution for possession of illegal substances under the federal Controlled Drugs and Substances Act (CDSA ). The remarkable political consensus in favour of Insite came apart in 2008 when the federal government, after the election of the Harper Conservatives, declined to extend the exemption. As a consequence, Vancouver Area Network of Drug Users (VANDU) and the Portland Hotel Community Services Society (PHS), the non-profit that operates Insite, along with two Insite clients, brought an action against the federal government in the B.C. Supreme Court. The provincial government intervened.2 The key arguments were that either the CDSA is inapplicable (and therefore the exemption is unnecessary) because primary jurisdiction over health resides with the province, or that the application of the provisions prohibiting possession in the federal statute violates the section 7 Charter rights3 of clients seeking treatment at Insite
Section 7, Insite and the Comptence of Courts
No full textIn the Insite case, the plaintiffs came to court with a very specific end in mind: to preserve the Insite safe-injecting facility. They did so for reasons of substantive justice: they wanted to protect drug users from the dangers of injection in the back alleys of the Downtown Eastside and to mitigate the harms common to that drug use—virulent infections and the risk of death from overdose
The Beginning of the End of the Gang of Eight: June 4, 1981
No full textThis article deals with a group that has become known as the “Gang of Eight”, consisting of the Ministers of Justice and Intergovernmental Affairs for the eight provinces that were opposing the federal initiative. These ministers took part in a meeting in June of 1981 that is now largely unknown or forgotten. This meeting took place after the eight First Ministers had gathered in Ottawa to sign a document called the Ottawa Accord, an alternative to the Trudeau government’s patriation package
