Canadian Constitutional Law

On Friday, Dec. 5, 2008 the University of Toronto Faculty of Law hosted a panel discussion about the Governor-General's decision to prorogue parliament. The following is a summary of the remarks made by panelist Lorne Sossin.

In light of the presentations, questions and comments on the panel, there are three broad constitutional principles imperiled by the recent decision by the Governor General to prorogue Parliament and its fallout:

There is a disturbing trend in much of the commentary precipitated by the events of the last two weeks culminating in Governor General Michaël Jean’s decision to prorogue Parliament. Much of the commentary rightly notes that the decision to prorogue, and even to dissolve Parliament, is a prerogative and, therefore, a matter of discretion that rests solely with the Governor General. Most commentators appear to agree that this discretion enables the Governor General to actively intervene in Canadian political life, the only question remaining is in what direction. At that point, political preferences usually enter into the discussion and determine the way in which that discretion should be exercised.

Yet it should be apparent that the Governor General is expected to steer clear of political controversies and so should exercise her discretion in ways that minimize her meddling in Canadian Parliamentary affairs. The Governor General should be guided less by the dictates of political partisanship, then, and more by the principles of democracy and responsible government. The Governor General’s actions should be guided principally by considerations that do the utmost to respect the will of Parliament and, ultimately, the people. It is Parliament which, conveniently for the Governor General, is the barometer of the people’s will as expressed periodically through the electoral process.

In a commentary in the National Post, Professors Lorraine Weinrib and Lorne Sossin argue that the Governor-General's decision-making should be public and transparent in situations such as the recent request by the Prime Minister to prorogue Parliament ("Canada's constitutional 'black box'," December 11, 2008).

Last Thursday, Governor-General Michaelle Jean granted a request from Prime Minister Stephen Harper to prorogue Parliament until late-January. She thus protected the Conservative government from a confidence vote that would have likely toppled the minority government, and perhaps prompted her to invite a Liberal-NDP coalition, supported by the Bloc Quebecois, to form a government. We would like to be in a position to share with you the arguments that the Prime Minister submitted to the Governor-General and her reasons for accepting them.

Prof. Ed Morgan has posted a new paper to SSRN entitled "Sunshine Cases of a Little Constitution." The paper can be downloaded here.

The following commentary by Professor Lorraine Weinrib was published in the Toronto Star, January 13, 2009.

The attorney general of British Columbia has announced criminal prosecutions against two leaders of the Fundamentalist Church of Jesus Christ of Latter Day Saints for breach of the Criminal Code prohibition against polygamy. The decision to prosecute follows years of deliberation on the appropriate response to harms attributed to polygamy as practised within the community in Bountiful, B.C.

Examination of some of the concerns raised in the media over the past week may provide some clarity as the prosecution proceeds.

Andrew Green and I have just posted a new paper on SSRN in which we analyze 105 Charter decisions of the Supreme Court of Canada.  Here's the abstract:

This paper examines how justices on the Supreme Court of Canada voted in Charter appeals between 2000 and 2009. Charter appeals, at least in popular belief (and possibly also in theory), have the greatest potential to reveal voting that is influenced by extra-legal policy preferences. Confining the analysis to the time during which Chief Justice McLachlin has led the Court aids in controlling for the effects of a particular Chief Justice in assessing the roles of ideology and consensus.

The David Asper Centre for Constitutional Rights will be hosting a book launch for the new book Parliamentary Democracy in Crisis: The Dilemmas, Choices and Future of Parliamentary Government in Canada on Tuesday April 21 at 4:30 pm.

The book launch will include a panel discussion on the future of Canada's democracy: lessons learned and where to we go from here.  This is the third in the series on the topic and celebrates the book that came out of our December 5th event on the Governor General's decision to prorogue Parliament. Panelists include Peter Hogg, Michael Valpy, David Cameron and Barbara Cameron.

The event will be webcast live starting shortly after 4:30 pm.

Click here April 21 at 4:30 to watch the webcast.

Click here to find out more about the event.

Click here to find out more about and purchase the book.

First published in the Globe and Mail, April 21, 2009.

In taking on the chef who runs the famed Wildcat Cafe, Yellowknife's city council appears to have concocted a recipe for bringing Quebec-style language politics to the Northwest Territories. In the process, it has given us the basis for a constitutional crise du jour.

The iconic eatery in Yellowknife's Old Town sports a log cabin veneer, rough wooden benches and floors, and a pedigree that harks back to the 1930s prospectors who founded it and the miners and bush pilots who made it a frontier landmark. The building was designated a heritage site in the early 1990s and it has been leased out by a municipal committee to licensed operators since reopening as a popular tourist destination in the late 1970s.

This commentary by Prof. Ed Morgan was first published in The Globe and Mail on May 27, 2009.

Canadians may be surprised to learn a few things about our constitutional law.

First, the military owes no duty toward detainees arrested by us and turned over to a foreign state for custody.

Second, our intelligence service does owe a duty toward prisoners taken into custody by a foreign state and turned over to us for interrogation.

Third, our diplomats are obliged to intervene with a foreign legal system that fails to live up to our domestic standards of punishment.

And fourth, our police are free to comply with a foreign legal system that fails to live up to our domestic standards of search and seizure.

When it comes to the powers of the Canadian government abroad, each new court ruling makes us wonder if the judges took the time to read the last one. How did this confused state of affairs come to be?