Constitutional Forum (Journal)
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Judicial Review of Ministerial Advice to the Crown
No full textFor Thomas Hobbes, nothing illustrated the “inconstant use of words” better than the confusion between “Counsels and Commands,” for the words “Doe this,” he said, “are the words not only of him that Commandeth; but also of him that giveth Counsell.” This confusion remains with us today. We still do not have a sound grasp of the distinctive place that counsel or advice plays within our constitutional system. How is ministerial advice to the sovereign concerning how a power ought to be exercised different from the exercise of the power itself? Does ministerial advice exist within a domain of political action beyond the reach of law? These are persistent questions in Canada
A Recent History of Government Responses to Constitutional Litigation
No full textThe 2006 Canadian federal election, which brought the Conservative Party to power for the first time, shifted the dynamics of constitutional advocacy. The government adopted a combative litigation posture, channeled through aggressive political messaging and uncompromising choices. Since the return to power in 2015 of the Liberal Party, many expect a more respectful attitude towards litigants, the courts and the Constitution. Certainly, the new government appears more positively disposed to constitutional rights and judicial review. As a result, Canadians are less likely to witness an openly hostile attitude towards the judiciary. That said, it is impossible to predict the precise way that the new government will respond to constitutional litigation.The observations that follow largely focus on government responses to final judicial settlement of constitutional disputes. But there is, as well, much to be gleaned from how a government conducts itself during litigation. While the latter issue does not feature prominently in this paper, it informs some of the concluding comments
Accessing with Dinosaurs: Protecting Access to Government Information in the Cretaceous Period of Canadian Democracy
No full textIn many ways, our democratic institutions, processes, and frameworks resemble the dinosaurs of the Cretaceous period...They have ceased to evolve sufficiently and are being left behind in an environment where technological innovations and greater expectations for political consultation, participation, and accountability have combined to present new challenges to the legitimacy, and perhaps the viability, of the status quo. Indeed, without further evolution, one wonders how our democratic dinosaurs will be able to survive cataclysmic events on the horizon, including escalating terrorism events and their aftermath
Political Accountability in Appointments to the Supreme Court of Canada
No full textThere are many issues related to the method and formal structure of a hearing process. There are also legitimate concerns about the damage that might be done to the Supreme Court or the judicial branch generally by hearings, chiefly the risk of political partisanship in the review process, which might be perpetuated through politically partisan conflict among the members of the Court. Neither the issues of implementation nor strategies for reducing the risks of injuring the Supreme Court’s reputation or eroding confidence in the legal process through coarse politicization of a hearing process are addressed in this paper, although they are hardly insignificant concerns. The matters discussed in this article are, first, the case for instituting legislative hearings and, second, assessing the value of hearings in terms in light of the types of questions that can properly be explored in hearings before a parliamentary committee
Distant Echoes: Discussing Judicial Activism at Canadian and American Supreme Court Nomination Hearings
No full textThis paper begins by tracing Canadians’ concerns about judicial activism. Part II surveys how academics, commentators, and others have reacted to perceived overreaches by Canada’s highest court over time. By evaluating the comments made by Justices Marshall Rothstein, Michael Moldaver, Andromache Karakatsanis, and Richard Wagner at their nominee hearings, Part III shows the paucity of official public discussion on the topic. Changing countries, Part IV explains how judicial activism has been canvassed recently in American Supreme Court nomination hearings; this part assesses how the topic has been addressed during and since Chief Justice John Roberts’s confirmation hearing in 2005. Part V analyzes Justice Nadon’s comments and demonstrates how they depart from Canadian precedent and towards a deeper, more American focus on the topic’s vagaries. Part VI concludes with some thoughts on what Nadon’s comments may portend should televised ad hoc committee hearings for Supreme Court nominees be restarted
Introduction
No full textThis Special Issue of the Forum is a compelling compilation of papers presented at the Annual Constitutional Symposium organized by the Centre for Constitutional Studies in October 2015
The Committee Process: Platform for Participation or Political Theatre?
No full textIn Canada’s parliamentary democracy, the government controls the legislative agenda. At least in the case of a majority government, government bills tabled in the House of Commons will ultimately become the law of the land. While the passage of legislation emanating from the government may appear inevitable, the system is structured to provide multiple opportunities to debate and discuss legislative proposals. The process of making law provides some avenues to test and question legislative initiatives, particularly those that may appear inconsistent with Canada’s Constitution; lawmaking may also provide opportunities to ensure that the voices of Canadians — not all of whom feel represented by the government or their Members of Parliament (MPs) — are heard.Unfortunately, while some of these changes and many others are worthy of study and consideration, there is little evidence of any political will to reform the way our committees function. As a result, we are likely to continue to see political and partisan dramas play out before our committees and will have to look to different venues for meaningful participation and debate
Accessible Information and Constitutional Democracy: Who Counts?
No full textAccessible information is an essential resource for equal, meaningful participation in the public life of a democratic society. Such information is particularly vital for the effective functioning of all three branches of government in our constitutional democracy: the administrative branch, which creates government policy and holds state actors accountable to the public; the legislative branch, which scrutinizes old and creates new legislation; and the judicial branch, which reviews the acts of the legislative and executive branches. For the law-reform processes of each branch to effectively foster the informed creation and critique of public law and policy, we require reliable, accessible data depicting the diversity of individuals who make up the broader Canadian public.Beyond this practical purpose, accessible information plays an expressive role as it constitutes a particular notion of the Canadian public. The data created by national population censuses and assembled in welfare reports has the power to “nominat[e] into existence” certain groups of people and, conversely, to “refus[e] to name” others. Such information not only represents the public, it also creates the public, as it stands in for the public at all levels of government. By communicating who we are as a society and how we are changing, census information and welfare reports shape our understanding of ourselves — our laws, policies, government, and place in the world
Constitutional Obligation of Alberta to Publish Laws in French: R v Caron and Boutet
No full textThis paper outlines the decisions of the Courts in the cases of Gilles Caron and Pierre Boutet [Caron] as well as the basic arguments advanced by the parties at the Supreme Court of Canada. The central issue in the case is whether there is a constitutional obligation on the Province of Alberta to publish its laws in French.This is not intended to be an exhaustive analysis of the myriad of issues that were argued by Mr. Caron and Mr. Boutet in defence of their traffi c tickets. Rather, the objective is to give an overview of the essentials of each of the decisions and the basic arguments advanced. This paper will also not address the matter of funding at trial, an issue in this case which also went to the Supreme Court of Canada
Placing Future Senate Reform in Context
No full textAs the opening speaker at the Centre for Constitutional Studies’ March 2015 conference entitled “Time for Boldness on Senate Reform,” I took it as my mission not to advance any bold ideas of my own (though some found my comments on Senate numbers particularly bold). Rather, I tried to set the context for other participants’ bold ideas. This paper follows a format similar to my talk. In the first part, I explain the current state of scholarly knowledge of second chambers and bicameralism. In the second part, I discuss the accepted orthodoxy that exists in Canada concerning Senate reform, namely that it must simultaneously address the method of selection, the numbers of seats each province gets, and the powers of the Senate. In the third part, I discuss the real constraint on Senate reform which is sociological and not constitutional. I left it to my fellow panelists to explore the Supreme Court ruling in the reference on Senate reform