Does the Canadian Parliament have the power to pass a bill of attainder (eg a law declaring a specific person(s) guilty of a crime and imposing sentence without trial)? While I’m sure the Charter of Rights & Freedoms would prevent it; couldn’t Parliament invoke the notwithstanding clause? True the law would only be valid for 5 years, but if the sentence was already imposed (eg a death sentence) that point would be moot.
The Canadian Parliament basically inherited the powers of the United Kingdom Parliament, with the limitations of confederation. So I suspect the answer depends on whether the United Kingdom Parliament could have passed a bill of attainder in 1867. I think you could argue that the practice had at least fallen into disuse in the UK Parliament.
Well, Canada doesn’t have the death penalty, so no sentence could be passed irrevocably. Nonetheless, your main point is interesting, and very similar to one I had the opportunity to raise whilst sitting in a bar at a table of law professors. Generally, the protections perceived to be built into the system fall into two areas: 1) the explicit five year limit that you mention (which means that no government can renew a Notwithstanding objection without facing an election first), and 2) the belief that people simply would not tolerate a wholesale undoing of the fundamentals of common law. Of course, neither would protect someone unpopular with the common folk, such as Paul Bernardo, from legislated suspension of rights. Churchill’s “tyranny of the masses” would definitely spell the end for someone as roundly hated by the general population, despite the ultimate perversion of the very system that protects society that it would entail.
True, but couldn’t Parliament simply reinstate the death penalty for the sole purpose of the attainder? It couldn’t be challenged on Charter grounds because of the notwithstanding clause.
There’s nothing to stop a bill of attainder being passed in the US either, if it’s passed in the form of a constitutional amendment. The likelihood of it happening in either country is roughly the same I’d imagine.
Substantially different, actually. In the United States, the states themselves would have to concur to an amendment authorizing bills of attainder.
In Canada, all it would take is the passage of a bill of attainder, and the lack of a rejection of that bill by the court system. That really only needs the control of the federal government by one particular party, a substantially different situation than the US, where the party in question would have to control the Congress, the President, AND 3/4 of the state legislatures.
Wouldn’t an attainder be against the Criminal Code?
So, that would rule out attainder, wouldn’t it?
No because the Criminal Code is just act of parliament subject to amendmend by another act of parliament. In case there’s any confusion about my OP I meant to ask whether Parliament has the power under the Canadian constitution as it exists in it’s current form. DSYoungEsq, what grounds would Canadian courts even have to invalidate it?
Well, I doubt an act of attainder would get royal assent…the whole practice having fallen out of favor these days.
As far as I can tell, yes, technically it could happen; practically it couldn’t, and you need to understand the weight that that second statement has, because like the British system much of our constitutional procedure reposes on unwritten traditions that have so very much weight that they are proof against abuse.
Under normal conditions, people are protected from arbitrary imprisonment by sections 7-12 of the Charter:
The Notwithstanding Clause reads:
The upshot of this is that Parliament could legally pass a bill saying 1) Joe Canuck is hereby declared a criminal and imprisoned at Her Majesty’s pleasure; 2) this bill shall operate notwithstanding any provisions in the Charter.
First: What would be the problems passing it? Under normal circumstances, party MPs are required to vote as their leaders direct (the whip). However it is entirely possible that, even in a majority government, MPs could defy the whip and refuse to vote in favour of such a bill. Even if they were punished by their party afterwards, they cannot actually be prevented from doing so. The same goes for the Senate.
Further assuming the bill were to pass both houses of Parliament, ordinarily the Governor General would be required to sign it. However, this requirement is strictly a matter of tradition – the same weight of tradition that would make such a bill unthinkable in the first place. We are already accepting a constitutional crisis of unprecedented proportions - Parliament has never invoked the Notwithstanding Clause - so we might as well be hanged for a sheep as a goat. It could therefore be argued (and not just in an ethical sense, but in a constitutional sense, remember) that the two houses of Parliament are behaving illegitimately and it is the legitimate role (or even responsibility) of the Queen (via the GG), who is one of the three branches of Parliament, to restore order.
It is also entirely possible that the constitutionality of the law could be successfully challenged despite the use of the notwithstanding clause. Precisely because constitutional law is such a cloudy notion (what with the unwritten traditions, the living tree doctrine, and so forth), judges have had a lot of flexibility in interpreting the Charter, generally with public support and a strong perception of legitimacy, and might find that this is so obviously an abuse of natural justice and centuries of constitutional tradition that it is illegitimate despite purporting to use the NWC.
Finally, and this is the ultimate defence, the NWC cannot be used to prevent an election: the people are guaranteed the right to vote in a new Parliament no less often than every five years, unless in a situation of war or insurrection more than two-thirds vote in favour of such a continuation, and Parliament must sit at least once a year. These sections of the Charter are specifically exempted from the NWC. You will also note, as stated above, that the NWC automatically expires after five years. So even if the NWC was used, was given royal assent, and was not successfully challenged in court, the people would have the right to vote in a new parliament to strike it down.
In summary, a literal and exclusive reading of the Charter would support the possibility of a bill of attainder. However, that’s not the only thing that must be considered. To some extent, things that are unfeasible for good reasons are felt to be in a state of quasi-unconstitutionality.
IANA constitutional lawyer, but unless you happen to have several spare ones for a Supreme Court reference, that’s the best I can give you.
Minor nitpick: Amending the U.S. Constitution does not involve the President. It is not a law he need sign (nor can he therefore veto it). It needs a 2/3 vote in each house and 3/4 of the states.
Well, *I thought the question was interesting, but I guess a rollicking multi-page discussion of the fine points of Canadian constutitional theory is a bit much to ask, isn’t it.
I’m not at all sure that the GG could refuse assent to a bill of attainder. It’s a sort of cliche when discussing the powers of the Queen to say that she’d have to give assent to her own death warrant if Parliament presented it to her, and that would certainly be a bill of attainder.
The Senate, on the other hand, could and most likely would kill such a bill, assuming the government didn’t lose a vote of confidence over the issue.
The Notwithstanding Clause is a bit of an odd duck. It theoretically gives Parliament the power to deprive people of all manner of rights, but I think that Bill 101 aside it’s just completely politically impossible to actually make use of it. Even King Ralph backed off from using it to dodge C-38 when it came down to it, though I guess the whole lack of provincial jurisdiction played a role there too.
As I stated upthread, I don’t think it’s any more politically possible for Parliament to get a bill of attainder enacted into law using the Notwithstanding Clause than it would be for a bill of attainder to be enacted in the US by means of constitutional amendment.
(Shrug) What’s to stop her?
As matt_mcl points out, refusal by the GG would be unthinkable in most cases because in most cases Parliament acts within the bounds of constitutional legitimacy. An act to pass a bill of attainder would be well outside those bounds, and would completely reframe the GG’s role in this matter; you’d likely see a lot of people demand the GG refuse to sign it.
There’s also the point that it is not necessarily the case that the Supreme Court wouldn’t overturn it, anyway. The SC is cheerily willing to just make up interpretations as they go - the “Reading in” concept - and might not take kindly to a law that simply disregards centuries of understood constitutional convention.
A fortiori, you may be interested to know that Quebec language laws have not used the NWC since 1993.
Yes, sorry, I was thinking that the President would eventually have to approve the actual Bill of Attainder, but if the Congress has the votes to approve the Amendment, it has a veto override vote as well. 
Again, I’m going to disagree. And it is this particular difference that is, we Americans like to think, one of the positive points to our constitutional set-up. Specifically, a sudden bell-weather change in public opinion is less likely to have far-reaching effect.
Assume, for example, that the 2001 terrorist attacks had occurred in Canada, not the US. For whatever reason, being able to attaint someone is desirable as a result of the attacks. Now, in this country, it was a close question as to just what the government could have gotten away with, but an attempt to amend the Constitution would still have faced some pretty high barriers. To accomplish it, a political party on the rampage would have had to control a substantial majority of both houses of Congress, AND 3/4ths of the states. By comparison, in Canada, the party on the rampage would simply have had to control a majority of both houses of Parliament, and been strong enough politically to buffalo the remaining “checks” on the system into allowing the Bill to pass unscathed. As you note, the likelihood of action by the GG or the courts is relatively small.
From a practical standpoint, is it likely in either country? No. But is it more likely to be possible, conditions otherwise ripe, in Canada? I believe the answer must be accepted to be yes. That, by the way, isn’t necessarily a bad thing: we sometimes feel the burden of the tyrrany of the minority here.
Here’s another reason: in the case of a foreign national, why would they go to the bother of a bill of attainder when they could just use a security certificate?
Coming a bit late to this inquiry, but I have a few comments.
i agree with much of the comments from other posters about the notwithstanding clause, but I don’t think that’s the end of the issue. There is more to the Constitution of Canada than the Charter. There’s also the Constitution Act, 1867, which sets out the basic structure of the Parliament, the Legislatures, and the superior courts. In particular, the Supreme Court has held that the judicature provisions of the Constitution Act, 1867 constitutionally entrench a guaranteed core jurisdiction for the superior courts. There are some things that neither Parliament nor the provincial legislatures can take away from the jurisdiction of the superior courts: Macmillan Bloedel v. Simpson, [1995] 4 S.C.R. 725.
Although I’ve never seen any cases dealing with the issue of acts of attainders, I would argue that an act of attainder would infringe this principle of the guaranteed jurisidiction of the courts. The purpose of an act of attainder is to circumvent the trial process of the court.
For example, the wiki article on attainders states:
Similarly, see this article on the British Civil Wars website:
So, even though the federal Parliament has exclusive jurisdiction over the criminal law, Parliament can’t use that power to exclude the jurisdiction of the superior courts. Similarly, even though the provinces have exclusive jurisdiction over the constitution of the courts, that power is implicitly limited by the judicature provisions of the Constitution Act, 1867. The Supreme Court made this point in Reference re Remuneration of Judges of the Prov. Court of P.E.I., [1997] 3 S.C.R. 3:
I would argue that one of the core functions of the courts is to provide a trial for a person accused of an offence, and that core function is protected by the judicature provisions of the Constitution Act, 1867. If Parliament tried to convict a person by legislation, in the form of an Act of Attainder, I think there would be a strong argument that it would be contrary to the exclusive core jurisdiction of the superior courts, and therefore beyond Parliament’s powers.
In support of this analysis, there is also the preamble to the Charter, which recognizes the rule of law as a fundamental principle of the Canadian Constitution. The Preamble to the Constitution Act, 1867 has also been interpreted as referring to the rule of law as a “fundamental postulate” of the Constitution. Although the preambles do not themselves grant constitutional rights, they are important guides to the interpretation of the Constitution. I would argue that the references to the rule of law further support the argument that Parliament’s power to legislate in the area of the criminal law cannot be used to circumvent the jurisdiction of the courts to try criminal cases.
So in summary, I would argue that an Act of Attainder would be unconstitutional because it would intrude on the exclusive and core jurisdiction of the courts. If so, the use of the notwithstanding clause would not assist the federal government, since that clause only applies to certain provisions of the Charter, not to the provisions of the Constitution Act, 1867.
Do you have access to the Senate Debates from Novvember 28, 1995? I’m pretty sure that on that date, the Speaker ruled on the admissibility of bill S-11, which would have increased the sentence of Karla Homolka from 12 years to life in prison.
Hansard on the web doesn’t seem to go back that far. It would have been the first session of the 35th parliament.