Constitutional Forum (Journal)
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Section 273.65 of the National Defence Act: Inappropriate and Unconstitutional
No full textAfter six short weeks of debate, Bill C-36, The Anti-terrorism Act,1 passed into law on 28 November 2001. Bill C-36 was Parliament’s formal legislative response to the terrorist attacks upon the U.S. on September 11. Among other things, Bill C-36 amended the National Defence Act2 to grant the Minister of National Defence, in place of a judge, the power to authorize the Communications Security Establishment (CSE) to intercept private communications for the purpose of obtaining foreign intelligence under section 273.65. The CSE’s mandate includes acquiring and providing foreign signals intelligence.3 In this article, I argue that this amendment to the National Defence Act abolished an essential safeguard to arbitrary state actions and likely violates section 8 of the Canadian Charter of Rights and Freedoms.4 The eventual removal of section 273.65 from the National Defence Act would uphold the long-standing, appropriate, and constitutional doctrine that the power to authorize agents of the state to intercept private communications rests solely with the judiciary
CANADIAN MULTICULTURALISM IN HISTORICAL AND COMPARATIVE PERSPECTIVE: IS CANADA UNIQUE?
No full textThe title of this conference implies that there is something unusual or distinctive about the way Canada deals with issues of cultural diversity. Is this true? In his introductory remarks, Professor Abu-Laban suggested that what is distinctive to Canada is not the sheer fact of diversity — one can find equally high levels of ethnic, linguistic and religious diversity in the United States, Brazil or Nigeria — but rather the legal and institutional response to diversity.1 Canada is unique, he suggested, in that our laws and institutions accommodate and promote diversity, most obviously through the Multiculturalism policy
CRISIS WHAT CRISIS? THE RECOGNITION ISSUE AND CANADIAN IDENTITY CRISES
No full textDuring his 1996 swearing-in ceremony, Québec Premier Lucien Bouchard spoke about the need for “a renewed recognition on the northern part of the continent of two profoundly different peoples.”1 Explicitly referring to Québecers and Canadians, he added that these two peoples would soon have to decide upon their respective destinies. Those who are attached to both Québec and Canada will no doubt have difficulty situating themselves within the Premier’s observation. Still, his characterization remains representative of the way in which the national unity debate and the identity crisis that underlies it are often described by those who advocate Québec sovereignty. It also points to the extent to which an important number of Québecers — to be specific the province’s francophones — do not feel a strong attachment to Canada
LA JUDICIARISATION DE LA POLITIQUE, LES DROITS DES MINORITES ET LE NATIONALISME CANADIEN*
No full textCe texte propose un commentaire sur les rapports entre le droit et la politique à partir de trois cas de figure : le phénomène de la judiciarisation de la politique, la question des droits des minorités linguistiques, et le nationalisme canadien. Trois thèmes qui méritent un développement à part, mais qu’il faut aussi tenter d’analyser comme des éléments d’un tout car ils sont liés, bien que de façon contradictoire. En effet, si la judiciarisation de la politique a favorisé le développement des droits linguistiques au Canada et la démocratisation de la justice, elle a aussi coïncidé avec l’avènement d’un nationalisme des droits fondé exclusivement sur la référence à des droits individuels pancanadiens, une idéologie qui rend difficile l’accommodement entre les groupes. Dit autrement, nous avons été témoin, au Canada, de l’avènement d’un populisme des droits qui, paradoxalement, a favorisé le rétrécissement de l’espace politique canadien au profit d’un mouvement de réconciliation de la nation avec elle-même heurtant de front l’idée d’une ouverture à l’Autre qu’a rendu possible une certaine tradition canadienne fondée sur le binationalisme. Pour dire les choses encore plus brusquement, obsédé par son unité, le Canada a cherché de plus en plus à fusionner avec lui-même. Il a fondé son identité sur un nationalisme des droits, un nationalisme apparemment civique, sauf que celui-ci a, jusqu’à présent, fait peu de place au débat démocratique, notamment au débat sur les institutions politiques et à l’aménagement de rapports plus justes entre les groupes nationaux et ce, malgré une représentation de soi fondée sur la diversité
EDMONTON JOURNAL V. ATTORNEY GENERAL OF ALBERTA
No full textEDMONTON JOURNAL V. ATTORNEY GENERAL OF ALBERT
The Turmoil Surrounding the Prorogation of Canada’s 40th Parliament & the Crown
No full textThe prorogation of the first session of Can- ada’s fortieth Parliament awakened Canadians to the intricacies of their political system and it brought the Canadian Crown to the fore of our history once more. Acceding to her Prime Min- ister’s advice on that cold, dreary, snow-covered morning of 4 December 2008, the Governor General, Michaëlle Jean, sparked the interest of Canadians in their monarchical institutions. A docile and politically bored population refused in large numbers to cast their ballots in a general election in October. Less than two months later, the prorogation of the first session of their new Parliament sparked a new-fired enthusiasm for politics, and throughout the country Canadians became constitutional experts overnight. They voiced their opinions on talk shows, at work and at leisure, in bars and over formal dinners, sud- denly manifesting astonishing skill at discuss- ing the strengths and weaknesses of their sys- tem of government with particular emphasis on the Maple Crown. Many based their opinions about the Crown on whether or not they liked the Prime Minister. Only a handful focused on the essential issue of the prorogation: was Prime Minister Stephen Harper abusing the preroga- tive and reserve powers of the Crown for parti- san political advantage? This issue was raised by David Smith over a decade ago in his book The Invisible Crown1 and it remains an unresolved question for constitutional observers today
The European Union’s Trap of Constitutional Politics: From the Convention Towards the Failure of the Treaty of Lisbon
No full textIn a national referendum held on 12 June 2008, 53.4 percent of Irish citizens voted “no” to the Treaty of Lisbon. As its provisions require ratification by all member states, the Irish vote marks a further setback for attempts at consti- tutional reform of the European Union (EU). The Lisbon reform treaty, officially entitled the Treaty of Lisbon amending the Treaty on Euro- pean Union and the Treaty establishing the Eu- ropean Community,1 was signed by the prime ministers and presidents of EU member states in December 2007. It was the result of a pro- cess set in motion by the European Council in a meeting held in Laeken, Belgium in December 2001. Intended to make the “ever closer union” more democratic, and to facilitate the adjust- ment of European institutions to the new po- litical situation brought on by the accession to the EU of Central and Eastern European states, the “Laeken Council” issued a declaration trig- gering efforts to constitutionalize the European Union. To this end, a reform process was ini- tiated involving a body called the Convention on the Future of Europe (Convention), made up of European and member state government representatives and parliamentarians.2 This re- form process resulted in the recommendation in 2003 of a draft Treaty Establishing a Constitu- tion for Europe (Constitutional Treaty),3 which was subsequently approved by the Intergovern- mental Conference and the European Council in Rome in October 2004. Despite several mem- ber states ratifying the Constitutional Treaty, it was rejected by popular referenda in France and the Netherlands in the spring of 2005. At that time, and in view of the obvious risks to ratifi- cation in some other member states, the process of constitutionalization ground to a halt
A Democratic Defence of the Court Challenges Program
No full textThe introduction of the Charter of Rights and Freedoms1 has provided many historically disadvantaged groups with an opportunity to have their rights acknowledged in the policy process. Indeed the Charter places a legal ob- ligation upon governments to ensure their leg- islative efforts respect the rights of historically disadvantaged groups. Some claim, however, that the Charter has produced activist judges who create rights for “special” interest groups rather than defer to Parliament. Others sug- gest Canada’s parliamentary system is not, on its own, favourable to all Canadians, and many groups and individuals are forced to the courts to make their interests and concerns known to government policy makers and legislators. The Court Challenges Program (CCP) was at the centre of this debate. This modest, federally funded initiative contributed to the protection and promotion of Canada’s official language mi- nority groups (OLMGs) for almost thirty years, and provided assistance to groups seeking to as- sert their section 15 Charter rights for almost twenty. The Court Challenges Program served as a last resort for many of Canada’s most dis- advantaged groups, but the Harper government recently took the position that the CCP was one of several “wasteful programs” not “providing good value for money.”2 Funding for the pro- gram was eliminated in 2006, silencing many of Canada’s most vulnerable groups
UNDERSTANDING GROOTBOOM — A RESPONSE TO CASS R. SUNSTEIN
No full textIn a typically thought-provoking essay on the significance of the recent judgment of the South African Constitutional Court in Grootboom,1 Cass R. Sunstein welcomes the contribution of this “extraordinary decision” to the international debate over the justiciability of socio-economic rights.2 In particular, he argues that the decision provides a partial answer to the objection that the judicial enforcement of such rights inevitably requires courts to assume “an unacceptable managerial role.”3 On Professor Sunstein’s reading, the Court in Grootboom successfully steers a middle course between the Scylla of complete enforceability and the Charybdis of non- justiciability. It does so by adopting what is in effect an “administrative law model of socio-economic rights,” one which reads such rights as giving courts the power to order government to “devote more resources than it otherwise would” to the regulatory problem at issue
RIGHTS, RECOGNITION, AND RECTIFICATION: CONSTITUTIONAL REMEDIES IN JOHNSON V. SAND
No full textRIGHTS, RECOGNITION, AND RECTIFICATION: CONSTITUTIONAL REMEDIES IN JOHNSON V. SAN