How to Tame a Prerogative

David Schneiderman
Monday, March 15, 2010

From The Globe and Mail (March 10, 2010)

Opposition efforts to get at the facts about Afghan detainee abuse appear not to have entirely abated, despite former Supreme Court of Canada justice Frank Iacobucci's appointment to advise the government about releasing documents. Prime Minister Stephen Harper's constitutional footwork certainly did not do the trick. Prorogation simply will not erase the stain of Canadians handing over Afghan detainees to face torture, if accusations are true. The break also should not allow him to escape the House's motion calling for uncensored documents relating to the abuse allegations.

Up until the day before the motion in December, the government side claimed that a variety of statutes legally barred it from releasing documents that threatened national security. It was only then that Carolyn Kobernick, assistant deputy minister in the Department of Justice, acknowledged that there was no statutory basis for refusing to deliver unredacted documents.

Instead, Ms. Kobernick claimed that the government, when making decisions regarding disclosure, would be guided by “the values underlying Parliament's intention in these provisions” – namely, “to protect the national security of Canada from harm by the unauthorized disclosure of sensitive information.” So there was no legal bar to the production of unredacted documents, only a discretion guided by values underlying the law.

Khadr and Prerogative Power

David Schneiderman
Thursday, April 1, 2010

(from Spring 2010 Rights Review 3:1)

What one might call “older” constitutional law has been very much in the news lately with the two controversial prorogations by Prime Minister Harper; the Government’s failure to disclose documents relating to Afghan detainees being released by Canadians to face torture; and the Supreme Court of Canada failing to provide a meaningful remedy for the ongoing breach of Omar Khadr’s Charter rights. Khadr, a Canadian citizen, has been held at Guantanamo Bay since 2002 on terrorism and related charges after being captured on Afghan soil. The Court found a serious breach of Mr. Khadr’s Charter rights yet chose not to tread into the realm of foreign affairs by directing the Government of Canada to seek his release from US custody. Though I focus solely here on the Khadr case, the thread common to all of these events is that they all concern exercises of the royal prerogative.

What is the royal prerogative? It is the unfettered discretion that once ran the machinery of government – Charles I described it as absolute and beyond reproach and was later beheaded – of which little remains. Despite the whittling away by statute and practice, what remains of the Crown prerogative is, nevertheless, significant.

Comprehensive Draft Federal Securities Act Released Today

Anita Anand
Wednesday, May 26, 2010

The federal government today released a draft securities act filed in support of its constitutional reference to regulate capital markets activity.  The draft act is largely based on provincial securities legislation: for example, the provisions relating to disclosure of information, prospectus offerings and the public interest power remain generally the same.  However, the act contains a number of new provisions which together appear to be improvements over existing law.

To begin, the act contains a new purposes section. In addition to protecting investors and fostering fair, efficient and competitive capital markets, the new Canadian Securities Regulatory Authority must contribute “to the integrity and stability of the financial system”.  Expanding the purposes section in this way is sound. The financial meltdown demonstrated that systemic risks can arise from increasingly complex products (such as derivatives) and highly leveraged institutions (such as hedge funds) that distribute these products. Contributing to the stability of the financial system is thus a pertinent goal of securities regulation.

Hirschl Publishes New Book: "Constitutional Theocracy"

Ran Hirschl
Thursday, September 30, 2010

Prof. Ran Hirschl has published a new book, Constitutional Theocracy (Harvard University Press, 2010).

From the publisher:

At the intersection of two sweeping global trends - the rise of popular support for principles of theocratic governance, and the spread of constitutionalism and judicial review - a new legal order has emerged: constitutional theocracy. It enshrines religion and its interlocutors as "a" or "the" source of legislation, and at the same time adheres to core ideals and practices of modern constitutionalism. A unique hybrid of apparently conflicting worldviews, values, and interests, constitutional theocracies thus offer an ideal setting-a "living laboratory" as it were-for studying constitutional law as a form of politics by other means. In this book, Ran Hirschl combines insights from legal theory, economics, theology, and political sociology with a rigorous comparative analysis of religion-and-state jurisprudence from dozens of countries worldwide to explore the evolving role of constitutional law and courts in a non-secularist world.

The Houdini Gambit

Jeffrey MacIntosh
Wednesday, November 24, 2010

This commentary by Prof. Jeffrey MacIntosh was first published in the Financial Post on November 23, 2010.

Do the feds have the constitutional jurisdiction to create a national securities regulator? Not surprisingly, the federal government thinks so. Also not surprisingly, the government of Quebec does not. Quebec has referred the matter to the Quebec Court of Appeal for a decision (just as the feds have sent a reference to the Supreme Court of Canada, but the Quebec court gets the first kick at the can).

Ottawa’s legal case, in a recently filed factum with the Quebec Court of Appeal, totters on the brink of schizophrenia. At the outset, the factum invites the court to conclude that the issue of constitutionality “does not involve a performance assessment of the existing 13 provincial and territorial regulators.” But, mirabile dictu, much of the balance of the argument is sedulously devoted to demonstrating the manifest superiority of federal legislation. Go figure.

Minister Kenney’s Ban on Face Coverings is Ultra Vires

Audrey Macklin
Friday, February 17, 2012

Not only is Minister Kenney’s ban on face coverings a gratuitous insult to Muslim women, it’s ultra vires.

In the wake of all the publicity about the Minister of Immigration’s decree that no one shall be allowed to go through the citizenship ceremony with her face covered, I thought I'd find out how the ban on face coverings was authorized in law. It appears that the ban is buried in the Operations Manual on citizenship ceremonies.  The Operations Manual provides guidance to citizenship bureaucrats (including Citizenship Judges) about how to interpret and apply the law -- the Citizenship Act and the Citizenship Regulations.  Since they are only guidelines, they do not have the force of law, and are invalid to the extent that they contradict the statute or the regulations.

You can find the citizenship manual here (PDF) (see s. 6.5). The manual contains an elaborate set of instructions about how citizenship officials shall respond if a woman is both uppity and oppressed enough to show up with her face covered.

Foreign Affairs: A Delicate Balancing Act

Ed Morgan
Wednesday, April 18, 2012

This article by Prof. Ed Morgan was originally published in The Lawyers Weekly, April 13, 2012.

When it comes to conducting foreign affairs, it is well established that the constitution puts the weight of responsibility on the federal government. But in recent years, the courts have deviated from that rule as often as they have invoked it.

In the Afghan prisoners case, the Federal Court of Canada explained that the government owes no constitutional duty when, after questioning, the military turns detainees over to a foreign government. The judgment presumed that Canadian forces require flexibility, and enjoy the discretion to deviate from domestic rules when they deal with an allied state and prisoners of war.

Constitutional Roundtable (Andrew Geddis)

David Asper Centre for Constitutional Rights
UNIVERSITY OF TORONTO

presents

Andrew Geddis
University of Otago Faculty of Law

Title:  tba

Wednesday, October 24, 2012
12:30 - 2:00
Classroom B (FLB), Flavelle House
78 Queen's Park

JD student Louis Century writes in Law Times - "Forcing judges to judge old law erodes democracy"

Monday, July 30, 2012

JD student Louis Century, a summer law student with the David Asper Centre for Constitutional Rights, has written a commentary in the "Speaker's Corner" section of the Law Times, "Forcing judges to judge old law erodes democracy," (July 30, 2012).

Read the full commentary on the Law Times website.

Copyright Taxation Without Representation

Ariel Katz
Thursday, June 21, 2012

The Copyright Board of Canada and that various tariffs that it certifies rarely attract media attention. But a tariff recently certified received coverage by most major media outlets. That tariff, mandating payments for playing recorded music in weddings and other events for the years 2008-2012, will be collected by Re:Sound, a private organization representing record companies and performing musicians. If the events include dancing, the fee is double. This unusual media attention, often describing the fees as a “wedding tax” or “dancing tax”, is not surprising because it reflects how undemocratic some aspects of Canada’s copyright system have become. If that is not enough, Re:Sound now contemplates a threefold increase in the “dancing tax” according to its newly proposed tariff for the years 2013-2015.

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