Ask the Canuck law-talkin' guys about the Constitution of Canada!

Miscellaneous and Personal Stuff I Must Share
81

Well, there’s power on paper and power in real life.

On paper, the Senate is almost the equal of the Commons - about the only difference is that money bills must originate in the Commons. But both Houses must consent to all bills, including money bills. It has a suspensive power in relation to some constitutional amendments.

However, in practice, the Senate lacks much power, because the Senators are all appointed by the Governor General, on the advice of the federal Cabinet. They hold office until age 75. As a purely appointed body, they lack the political legitimacy to exercise their powers in opposition to the elected House of Commons. By constitutional convention, the Prime Minister and the Government are responsible solely to the Commons. (Although there have been two Prime Ministers who sat in the Senate.)

This means that the Senate tends to be a house of detail; it may propose amendments to a bill to try to improve it, but rarely will oppose the bill in its entirety.

Of course, there are the occasional episodes where the Senate actually uses its powers in a significant way. The last time was in 1991, when the federal Government was proposing an abortion bill to replace the provisions struck down by the Supreme Court in R. v. Morgentaler. The bill passed the Commons, but failed in the Senate on a tie vote (the Speaker in the Senate can vote like any other Senator and does not have a casting vote; in the case of a tie, the motion fails). So as a result of that vote in the Senate, Canada is one of the few countries that does not have any regulation of abortion, other than the same sorts of professional guidelines that apply to other medical procedures.

What Cat Whisperer is referring to is the practice in Alberta to hold provincial “elections” to the Senate. They have no binding effect, simply a political exercise to put pressure on the federal government to appoint individuals who have been approved by the electorate.

82

Okay, law talkers. I know the Crown generally acts only on the advice of the PM/HMG, and that actions are normally formalized in the Queen’s name by the GG. That leads me to two questions:

  1. There are a few cases where advice is formally tendered by the Cabinet, not just the PM. What are they, and why are they differentiated?

  2. I know there are a handful of circumstances where the Queen can or is required to act in propria persona – the GG may not act in her name on them. There’s probably a list somewhere; one of them, is, obviously, naming the new GG. What are they, and why are they reserved to her?

83

Thanks for your very illuminating answers! :slight_smile:

84

This is an excellent question, but I’ll admit that I am stumped by it. In a way, it mirrors the problems preventing free interprovincial trade on certain items (beer, for example, though that seems to have changed).

The closest I can get is that a general reading of Constitution s. 92 et seq. means that provinces are restricted to their physical boundaries. They cannot do anything that affects other provinces–the minute a provincial interest crosses a provincial boundary, it becomes a federal matter. See Constitution s. 10.

Note particularly Constitution s. 92(10)(c): “Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.” This may be the section that would prevent your scenario, Gorsnak: if two or more provinces team up on securities regulation for their mutual benefit, Parliament can declare such a thing to be a federal responsibility.

But I’ll admit, that’s only a guess. I’d appreciate a more knowledgeable view from one of our other Canadian legal Dopers.

85

Agencies such as this do in fact exist. For example, in Canada there is the Common Drug Review, part of the Canadian Agencies for Drugs and Technologies in Health - which has the task of reviewing drugs for addition to provincial drug insurance plans.

About CADTH:

http://www.cadth.ca/en/cadth

About the Common Drug Review:

http://cadth.ca/en/products/cdr/cdr-overview

The trick is that it is allegedly an independent agency, which is merely funded by all the provincial governments (save Quebec). However, you can’t get a province to accept your drug (usually) without going through the CDR.

It’s de facto national regulation by the provinces, without the slightest shred of statutory power or constitutional basis - though so far no one has challeged it (though the courts have held that its decisions are subject to judicial review … ).

86

To expand on this, health care is Constitutionally a completely provincial matter, so the feds have no power to directly enforce nationwide standards. What the Act does is set certain standards and bribe the provinces to follow them by giving them a significant amount of additional funding if they do so. (Much like the US 1974 55mph speed limit law and its link to federal highway funding.)

87

Actually, it’s the other way around: the GovGen is advised by the Cabinet as a whole, which makes collective decisions. An order by the Gov Gen is called an “Order-in-Council”, reflecting this - it’s an order made by the GovGen on the advice of the Cabinet as a whole. Mind you, the PM is in charge, so the Cabinet will not advise an order that the PM doesn’t like. As well, if there needs to be personal communication between Cabinet and the GovGen, it’s done through the PM; the other Cabinet members don’t all troop over to Rideau Hall. Once the Cabinet has advised an order, then all are bound to support it: collective decisions, collective responsibility. The exact balance of power between the PM and the members of the Cabinet will depend on the PM’s strength within the party and other political factors.

There is one possibility where the Cabinet may advise the GovGen without the participation of the PM: when the PM is dead, having died in office. It’s only happened twice in our history (Macdonald in 1891 and Thompson in 1894), so the precedents are murky. If there is a Deputy Prime Minister, presumably that person may act as a caretaker PM, advising the GovGen on behalf of the Cabinet until the political succession is sorted out. If there is no Deputy PM (which is the current case; PM Harper has never appointed one), then the Cabinet as a whole would have to decide who would be the acting PM to convey advice to the GovGen - but since it hasn’t happened in over a century, any Cabinet and GovGen who faced this issue would probably just have to make it up as they go along.

There are some things that only the PM advises the GovGen on: the dissolution of Parliament, triggering an election, and the appointment of the Cabinet are the two major ones.

As to the Queen’s role, the monarch used to give instructions to each Governor General on appointment as to how to use the powers of the Crown in the dominion. But back in the late 40s the government of Mackenzie King advised King George VI to give a standing commission to the GovGen as to the exercise of the royal prerogative, known as the Letters Patent Constituting the Office of the Governor General; these standing instructions are still in force today, and the current monarch does not need to give any instructions to the GovGen as to the exercise of the royal prerogative.

The only other three areas I can think of where the Queen acts herself acts are: appointment of the GovGen, on the advice of the Canadian Prime Minister and Cabinet; reservation and disallowance of bills of the federal Parliament (a fossilised remnant of our colonial heritage that has never been formally abolished but not used in donkey’s years) and the appointment of extra Senators to resolve a deadlock between the Commons and the Senate (only used once, in 1990: Mulroney Stacks Senate to Pass GST; Constitution Act, 1867, s. 26.

88

You’re welcome!

89

with one minor area of express federal jurisdiction: “Quarantine and the Establishment and Maintenance of Marine Hospitals.” (Constitution Act, 1867, s. 91(11)).

You make it sound so … dirty. :stuck_out_tongue: It’s that spending power mechanism which establishes the national health care system, such as universal coverage and complete portability between provinces.

90

Getting back to the Letters Patent, Polycarp, here’s the provision which indicates that the GovGen generally takes advice from the Cabinet:

And I’d forgotten that there’s another provision in there which outlines a situation where the Queen herself must be involved:

I believe that newly appointed Govs Gen usually make a ceremonial trip to the UK to meet with the Queen, so this provision would come into play then. They also occasionally do travel abroad on behalf of the Gov’t of Canada.

91

Quibble: this was the finding in Egan v. Canada, not Vriend. Vriend found that a legislature (in this case that of Alberta) could violate the Charter by what it explicitly chose not to include in a law (its Human Rights Act), not only what it did include, and found that the Alberta Human Rights Act violated the Charter by not including sexual orientation (as per Egan).

There’s the old joke about the four scientists – British, French, American, and Canadian – who get together to write a book about elephants. The British scientist’s chapter is “Elephants and the Empire.” The French one’s is “L’amour et l’éléphant.” The American’s is “Elephants: Bigger and better all the time.” And the Canadian scientist’s is “Elephants: A federal or provincial responsibility?”

92

I think we’re on the same page here, Matt, just unsure as to the issues that were settled by each case. My understanding is as follows:

Egan (1995): Is homosexuality a protected ground under s. 15 of the Charter? Answer: Yes.

Vriend (1998): If homosexuality is not explicitly stated as a prohibited ground in existing human rights legislation, then as per the Egan decision, can it be “read into” the legislation without requiring a legislative amendment? Answer: Yes.

I’m seeing two different issues here. Perhaps you’re only seeing one?

93

Sorry, I’m being unclear when I say, “I see two issues.” Let me try to explain.

Let’s first understand what Charter s. 15 does: generally speaking, it ensures that all people in Canada are equal: before the law, before their governments, before all governmental and quasi-governmental boards, tribunals, and agencies. No public entity can discriminate; all Canadian citizens and others who happen to be in Canada are equal in their dealings with public entities.

What the Charter does not do, broadly speaking, is to protect one against private entities. For that, we have federal and provincial human rights legislation. Thus, landlords may not refuse to rent apartments to black people just because they are black, employers may not refuse to employ qualified women just because they are women, and businesses may not refuse to make themselves accessible to the handicapped (to the point of undue hardship anyway, which is a whole 'nother matter).

So while Egan said that homosexuals were equal under Charter s. 15, in their dealings with public entities; it did not extend that equality to private entities. That was left to the Vriend decision–a private Christian school refused to continue to employ Mr. Vriend simply because he was gay. Alberta’s human rights legislation did not specify “homosexuality” as a protected ground in private dealings; therefore, it was prima facie legal to fire him because he was gay. The SCC’s Vriend decision said otherwise: “homosexuality” was a protected ground when dealing with private entities, in spite of what the legislation expressly said.

That was the real significance, of Vriend, I’d say: it extended Charter s. 15 equality rights into the private sphere. It required Egan to put it there, but since it seems to me that most Canadians’ dealings are with private entities (apartment rentals, land purchases, employers, banks, retailers, household utilities, etc.), the significance of Vriend is great.

Or, to sum up as simply as possible:

Egan: Homosexuals are equal under public law.
Vriend: Homosexuals are equal under private law.

See the two issues?

94

My understanding is not that it extended s.15 rights to the private sphere; it’s the federal and provincial human rights codes that provide for equality rights in the private sphere, not the Charter.

My understanding is that it found that one such law (Alberta’s) unconstitutionally violated the s.15 rights, as read in by Egan, because the legislators specifically refused to include sexual orientation when they made the law, and this was the same as if they had made a law that positively burdened people based on their sexual orientation.

No? (I mean, the result is the same. It’s just a different path to get there.)

95

Rereading your summary of Vriend carefully, your original description was correct, without prejudice to the subsequent discussion. I jumped the gun a little bit (you said “human rights legislation” and I read “Charter”) because I’m used to thinking of Egan as the one that got the ball rolling by reading in sexual orientation in the first place.

96

As this thread was revived, I have another question. In an episode of Law & Order: SVU (Season 2 Episode 18, “Manhunt”) a murderer crosses the border to Ontario and can’t be extradited unless New York agrees to waive the death penalty. (“Ripped from the headlines” indeed, as the episode was originally broadcast two months after the SCC decided United States v. Burns.) The New York DA doesn’t want to waive the death penalty, so they amend the extradition warrant to include only a charge of hijacking. After a bit of clever courtroom rhetoric, the Canadian judge authorises the extradition, even though everyone knows the suspect will be charged with murder after crossing the border.

Now, this seems like a ridiculous workaround, and if it were true it would completely defeat the purpose of the aforementioned US v. Burns. Surely in most capital cases there would also be lesser crimes which could be used for extradition. So am I right in thinking that this ploy would fail in the Canadian courts in real life?

Why did the court issue its ruling in US v. Burns anonymously as “The Court”, rather than under the name of a judge? I noticed that the very similar ruling of the South African Constitutional Court (Mohamed v President) was also issued anonymously. Is there something special about extradition or the death penalty that leads courts to do that, or is it just a coincidence?

Also, would a New York ADA really appear in person before the Ontario Superior Court of Justice in an extradition case?

(Also, if there are any Yankee law-talkin’ guys in this thread, why would the New York DA care about waiving the death penalty when New York hasn’t executed anyone since 1963?)

97

There have been recurring proposals to reinstate the death penalty in NYS, although they haven’t gone anywhere in years. Maybe the DA just wanted to keep his or her options open in case the law changed?

98

The split in cost between the provinces and the federal government is different from the split between the states and federal government. I pay quite a bit more in Quebec income taxes than in federal. Although there is no warrant for it, Quebec uses a form of nullification on certain federal laws they don’t like. For example, if you need medical treatment in another province, federal law provides that your home province cover the cost. But Quebec will pay no more than than it would cost here and if it is more expensive, say in Ontario, you are on the hook for the difference. The federal government has recently passed a law providing large increases in mandatory minimum sentences for drug offences which would require the provinces to start building and operating new prisons. Quebec has announced that they won’t do it. It is not clear what they won’t do, but it seems unlikely that the federal government will do anything about it.

For several years after the patriation, Quebec added a “notwithstanding” clause to every act of the assembly, most of which had nothing to do with the Charter. The point seemed to have been to ridicule the charter and also make it seem like standard operating procedure. But they abandoned it after a few years. It will be interesting to see what the Supreme Court does with the proposed ban on display of religious symbols (save crucifixes which are deemed cultural and not religious) by people in the public service. Such laws are win-win situations since if they are declared unconstitutional, it just proves that Quebec must separate in order to be master in its own house. If it stands, then it shows that the Charter is toothless.

99

Under the treaty, clearly yes, but the treaty is only one part of the puzzle. http://www.oas.org/juridico/mla/en/traites/en_traites-ext-can-usa4.html

Under the Charter following Burns, no, but only if the Court recognizes the lesser charge for what it is. http://www.canlii.org/en/ca/scc/doc/2001/2001scc7/2001scc7.html

Charter trumps treaty. It could cause a constitutional crisis, for the power to make treaties is a prerogative power of the Crown that is not subject to Parliament. The Courts try to make decisions that do not fly in the face of treaties, but ultimately, if it were to come down to a face-off between the right to life under the Charter verses a treaty that was formed outside of Parliament and was being deliberately avoided by a foreign power, I expect that the Canadian Court would stand on the primacy of Parliament and the Charter.

The question then is would the Court recognize the lesser charge for what it is?

As per the Court’s decision in Burns: “Section 7 is concerned not only with the act of extraditing, but also the potential consequences of the act of extradition.”

The test as set out in Burns (taken from Schmidt) is whether “the nature of the criminal procedures or penalties in a foreign country sufficiently shocks the conscience as to make a decision to surrender a fugitive for trial there one that breaches the principles of fundamental justice enshrined in s. 7”

The death penalty for most matters fails the test. Maneuvering about to change the charge so as to avoid triggering the treaty does nothing to either change the potential consequence of death, nor in any way reduce the shock of conscience.

I don’t know, but under the general principal of don’t fuck with the Court, I’d put my money on the Court refusing to extradite, on the grounds that regardless of the particular charge used to reel-back the accused, the return would potentially put him at risk to a penalty that is shocking to our conscience and thereby contrary to s. 7 our Charter of Rights and Freedoms.

The Assange matter in Europe is worth watching for this sort of issue.

100

You’re right - it is an obvious work-around, which is why it is not permitted. In extradition law there is the doctrine of “specialty”. This doctrine means that if extradition is granted, the requesting state can only prosecute the individual for the crimes set out in the extradition application and the extradition Court’s order. If the individual is acquitted, or is convicted and serves his sentence, he then must be given a reasonable opportunity to leave the country and return to the first country. This principle is incorporated in all extradition treaties, so far as I know. I haven’t looked, but I assume it is in the Canada - US extradition treaty.

The SCC often issues anonymous unanimous reasons in very high profile constitutional cases. I think the reason is that they want to emphasise that it’s the decision of the Court as a whole, and to flag that it is a significant ruling. As for the South African court, I don’t know, but in general, the decisions of the SCC have been very influential in South Africa, so it may be that the South African court is following this practice as well.

Highly doubtful. A US lawyer does not automatically have the right of audience in a Canadian court. Would need either a temporary call or a reciprocity agreement between the New York State Bar and the Law Society of Upper Canada. As well, a New York lawyer would not be familiar with Canadian law, including constitutional law, so it would be risky to do so; could easily make a mistake that torpedoes the application. That’s why the Canadian federal Department of Justice normally provides Crown counsel to argue the extradition application on behalf of the requesting state, in this case the US.