Thomas Mulcair’s proposal to strengthen the Parliamentary Budget Officer

By Aaron Wherry - Wednesday, February 27, 2013 at 4:07 PM - 0 Comments

Here is the Private Member’s Bill that Thomas Mulcair has now tabled to amend the Parliamentary Budget Officer’s mandate. Among other things, the bill amends and adds to the section pertaining to the PBO’s access to information.

79.3 (1) Except as provided by any other Act of Parliament that expressly refers to this subsection, the Parliamentary Budget Officer is entitled, by request made to the deputy head of a department within the meaning of any of paragraphs (a), (a.1) and (d) of the definition “department” in section 2 of the Financial Administration Act, or to his or her equivalent, or to any other person designated by that deputy head or his or her equivalent for the purpose of this section, to free and timely access to any data, information, records, explanations and assistance that the Parliamentary Budget Officer considers necessary to fulfil his or her responsibilities under section 79.2.

(1.1) Where the deputy head of a department or his or her equivalent or designate refuses to provide the data, information, records, explanations or assistance requested under subsection (1), the Federal Court shall, if it determines that there is no ground to refuse to provide the data, information, records, explanations or assistance, order the deputy head of the department or his or her equivalent or designate to provide the data, information, records, explanations or assistance, subject to such conditions as the Court deems appropriate.

Metis and non-status Indians declared ‘Indians’ under Constitution Act

By Heather Scoffield - Tuesday, January 8, 2013 at 10:47 AM - 0 Comments

OTTAWA – The federal government’s responsibilities for aboriginal peoples just got a whole lot bigger.

After more than 13 years of legal wrangling, the Federal Court ruled on Tuesday that Metis and non-status Indians are indeed “Indians” under a section of the Constitution Act, and fall under federal jurisdiction.

The decision helps to clarify the relationship between Ottawa and the more than 600,000 aboriginal people who are not affiliated with specific reserves.

“The recognition of Metis and non-status Indian as Indians under section 91(24) should accord a further level of respect and reconciliation by removing the constitutional uncertainty surrounding these groups,” writes Federal Court Judge Michael Phelan. Continue…

Another “big victory”

By Aaron Wherry - Tuesday, March 6, 2012 at 7:53 PM - 0 Comments

The Conservatives have dropped their appeal of a federal court ruling in the in-and-out affair.

The Conservative Party of Canada has repaid taxpayers $230,198 for the “in-and-out” election financing dispute and dropped its appeal at the Supreme Court of Canada … Elections Canada refused to issue the more than $800,000 in total rebates to the Conservative Party and the party then sued to get the money.

They won the case in a lower court ruling, but in early 2011, the federal Court of Appeal unanimously overturned that ruling, saying Elections Canada had every right to deny the expenses.

Four months ago, in a separate proceeding, the Conservative party pleaded guilty to violating the Elections Act.

‘Fundamental constitutional imperatives’, the man says

By Colby Cosh - Friday, December 9, 2011 at 7:53 AM - 85 Comments

Canadian judges are rightly protective of their independence. It takes no more than a whisper of political interference in their work—indeed, arguably much less than a whisper—to raise their hackles and bestir them to the clamorous defence of this most sacred principle. But this principle ought to cut both ways, yes? Mischievous interference in politics by judges should be castigated just as seriously, if we are to preserve the proper relationship between elected institutions and the bench—if only because involvement in law-making by judges invites reaction, pushing us toward an open contest of force between the branches of government. The branch that doesn’t command fighter jets probably shouldn’t want that.

This is worth considering, I think, after Hon. Douglas Campbell’s Wednesday afternoon decision in the Federal Court case of Friends of the Canadian Wheat Board et al. vs. Canada. Campbell’s decision has inspired an immediate loathing and derision from lawyers of a sort I don’t remember seeing since the Miglin case (2003).

Campbell was presented by the government with the argument that section 47.1 of the Wheat Board Act, which Agriculture Minister Gerry Ritz pretty obviously violated, contravenes parliamentary sovereignty. 47.1 was added in 1998; it forbids the minister from introducing a statute to take grains out of the single-desk marketing regime without holding a plebiscite of growers. As I wrote earlier, the section has never been considered quite kosher. Parliaments can bind their future successors by means of “manner and form” procedural rules, but (leaving aside some quibbles and wrinkles and impish theoretical contrarianism) they can’t put a fence around their legislative legacy by making it harder to repeal individual statutes than it was to pass them in the first place. This is as much a matter of rudimentary logic as it is of the “constitution” per se, for whose will would we expect and desire to prevail in a contest between the Parliament of 1998 and the Parliament of 2011? Continue…

‘Disregard for the rule of law’

By Aaron Wherry - Wednesday, December 7, 2011 at 3:50 PM - 69 Comments

The Federal Court has ruled that the government’s attempt to reform the Canadian Wheat Board violates the legislation that governs the board.

In a ruling today, Federal Court Judge Douglas Campbell said the government violated the Canadian Wheat Board Act by not holding a vote among farmers before introducing legislation eliminating the Wheat Board’s monopoly position. Judge Campbell admonished the government for not consulting with farmers and “simply pushing ahead” with plans to essentially abolish the board. “Had a meaningful consultative process been engaged to find a solution which meets the concerns of the majority, the present legal action might not have been necessary,” the judge ruled. He added that the government had to be “held accountable for [its] disregard for the rule of law.”

During QP this afternoon, the NDP’s Pat Martin suggested that perhaps the Goldring precedent—removing oneself from caucus on the allegation that one broke the law—should apply here.

Meanwhile, at the Federal Court

By Aaron Wherry - Friday, September 30, 2011 at 12:27 PM - 5 Comments

A government appeal to limit the scope of an investigation by the Military Police Complaints Commission has been rejected.

A Federal Court has dismissed an application that would, among other things, strike the testimony of diplomat-whistleblower Richard Colvin and block thousands of pages of documents from being used by the Military Police Complaints Commission…

Justice Department lawyers argued the commission had no authority to call witnesses who were not members of the military, such as Colvin, who said he repeatedly warned both Foreign Affairs and the Defence Department about possible prison abuse … The government also claimed that the watchdog, created in the aftermath of the Somalia scandal to monitor the conduct of military police, exceeded its mandate by issuing summonses for documents.

Getting schooled on trademarks

By Charlie Gillis - Thursday, March 10, 2011 at 10:22 AM - 5 Comments

Like a rookie hockey player, the Ontario Teachers’ Pension Plan has tried to embrace its nickname. But domain over “Teachers’ “—
the label by which practically everyone in the financial industry knows it—has once again eluded the Bay Street juggernaut.

In January, a Federal Court judge dashed the plan’s latest bid for the rights to Teachers’, dismissing its appeal of a 2009 refusal issued by the country’s trademark authority. Even with the apostrophe appended, the Registrar of Trademarks ruled, the word Teachers’ is so common that handing it to a single pension plan would preclude others from using it to provide teachers with pension management and other financial services. “Descriptive words are the property of all, and cannot be appropriated by one person for their exclusive use,” the registrar said.

Continue…

'After careful consideration'

By Aaron Wherry - Monday, July 12, 2010 at 3:20 PM - 0 Comments

In not-at-all surprising news, the government will appeal last week’s Federal Court ruling on Omar Khadr.

“After careful consideration of the legal merits of the July 5, 2010, ruling from the Federal Court, the Government of Canada will appeal the decision to the Federal Court of Appeal.

“This case raises important issues concerning the Crown prerogative over foreign affairs. “As the Supreme Court of Canada ruled in an earlier case involving Mr. Khadr, ‘it would not be appropriate for the Court to give direction as to the diplomatic steps necessary to address the breaches of Mr. Khadr’s Charter rights.’ “Omar Khadr faces very serious charges, including murder, attempted murder, conspiracy, material support for terrorism, and spying. The Government of Canada continues to provide consular services to Mr. Khadr.”

The business of Guantanamo, meanwhile, is proceeding as smoothly as ever.

'The steps taken to date were found not to remedy the breach'

By Aaron Wherry - Monday, July 5, 2010 at 3:53 PM - 0 Comments

The federal court rules on a review of the government’s response to the Supreme Court’s ruling on the treatment of Omar Khadr.

Omar Khadr sought judicial review of Canada’s response to the Supreme Court of Canada’s declaration in Canada (Prime Minister) v. Khadr (2010) that Canada had breached his Charter rights.  Canada responded by deciding that it would continue to refuse to request his repatriation from Guantanamo Bay, Cuba, and by requesting, by way of diplomatic note, that the United States not use any of the information Canada had supplied it in its prosecution of Mr. Khadr.

The Court concluded that Canada’s decisions were amenable to judicial review, even though they involved the executive’s exercise of a royal prerogative, because they affected the rights and legitimate expectations of Mr. Khadr.  The breach of his rights remained ongoing and the Court concluded that he had a legitimate expectation, following the Supreme Court of Canada’s declaration, that Canada would take steps to remedy its breach.  The steps taken to date were found not to remedy the breach.

The full ruling is here.

It ain't over till it's over

By Aaron Wherry - Thursday, May 20, 2010 at 8:38 PM - 39 Comments

Five months after a federal court ruling on so-called in-and-out campaign financing, it turns out an unpublicized portion of the judgment imperils the political careers of three cabinet ministers. And the commissioner of elections has apparently referred the matter to the office of the public prosecutor to consider criminal charges.

… in a little-noticed detail, he also found that one of the two candidates should have paid — but did not — an equal share of the full market value of regional advertising buys. Rather, the amount charged appeared to have been “purely arbitrary,” based on what the candidate could afford without exceeding his spending limit.

In documents supporting its motion to stay Martineau’s ruling, Elections Canada applies the equal share dictum to all 65 candidates involved in the regional media buys. The agency finds up to 10 of them would have exceeded their spending limits, including Cannon by $7,618, Verner by $13,304, Paradis by $10,188 and Bernier by $20,138.

In its appeal, the party suggests Martineau’s ruling violates freedom of speech guarantees in the Charter of Rights because it “effectively limits a candidate’s ability to run ads if other ridings in the same (regional advertising) pool are unable to contribute to the same level financially.”

The full federal court ruling in its entirety is here. This particularly issue would seem to be raised at paragraph 235.

The pivotal paperwork (VI)

By Aaron Wherry - Thursday, February 25, 2010 at 11:30 AM - 14 Comments

Two months after the government was first asked to explain why a reference to abuse in a 2006 field report was redacted in 2007, but released uncensored in 2009, the questions having been put to three different departments, an answer, of sorts, arrives from the Justice Department.

Those questions, for the record, were as follows: In regards to the redaction noted below, who oversaw, ordered or made that redaction? On what grounds was that reference to abuse redacted? Did those grounds no longer apply when Gen. Natynczyk disclosed the reference to abuse last week?

I reprint the response received this morning here in its entirety. Continue…

In-and-Out is in, unless it's out

By Aaron Wherry - Wednesday, January 20, 2010 at 9:30 AM - 17 Comments

Deep in the comment thread here, Duff Conacher of Democracy Watch offers the following reading.

The Federal Court ruling today dodged the issue of the legality of the Conservatives’ 2006 federal election ad spending scheme issue even more than Aaron hints at, as the ruling went in favour of the candidates only because the basis of the “balance of convenience” principle means that they should be reimbursed for their full expenses now because the legality of the scheme is yet to be determined.

So, in order to have the issue of the legality of the scheme ruled upon by the courts, Elections Canada must proceed with a prosecution through the Director of Public Prosecutions, and/or an appeal of today’s ruling to the Federal Court of Appeal.

Continue…

In-and-Out is in?

By Aaron Wherry - Monday, January 18, 2010 at 12:28 PM - 129 Comments

A Federal Court judge rules in favour of the Conservative side, with a caveat of sorts.

Elections Canada had contended that the Conservatives effectively skated around the party’s $18.3 million spending limit by channeling the cost of the ads through its candidates’ campaigns, which have their own spending limits. There was no evidence, the electoral agency argued, that the expenses were legitimately incurred by the candidates.

In a ruling released Monday, Justice Luc Martineau disagreed, saying the two candidates did incur the expenses. He ordered Mayrand to approve the claims. Martineau said, however, that the decision does not necessarily bear on an investigation of the ad buying program currently being conducted by the Commissioner of Canada Elections, William Corbett.

“There is a fundamental distinction between legality and legitimacy,” Martineau wrote. “As far as the overall legitimacy of the (regional-media buy) program is concerned, this is a debatable issue, which is better left for public commentary and debate by all interested persons outside the courts.”

A little light reading

By Aaron Wherry - Wednesday, December 2, 2009 at 1:41 AM - 2 Comments

In 2007, the British Columbia Civil Liberties Association and Amnesty International attempted to bring a halt to detainee transfers. The documents related to the resulting federal court case are here and the last link there is a massive file—nearly 1,200 pages at 227 MB—of documents turned over by the government.

Some of the memos and e-mails have been cited in recent media reports. Various portions are redacted. Richard Colvin’s name appears at various points, but it doesn’t appear that any of his 2006 memos are included.

Should you be so interested in such stuff though, there is plenty there to review.

The “Khadr effect”

By Michael Friscolanti - Thursday, November 12, 2009 at 8:17 PM - 45 Comments

Among the bureaucrats at Foreign Affairs, it’s known as the “Khadr effect”—the fear that sticking up for a Canadian citizen arrested in another country may come back to haunt the government. The cautionary phrase dates back to 1995, when the World Trade Center was still standing and the Khadr name meant something only to a handful of spies at the Canadian Security Intelligence Service (CSIS).

In those days, Toronto’s Khadr clan was shuttling between Pakistan and Afghanistan, mingling with al-Qaeda elites and dabbling in “charity” work. In November of that year, when a bomb leveled the Egyptian embassy in Islamabad and killed 16 people, the family patriarch, Ahmed Said Khadr, was among the suspects rounded up by Pakistani authorities. Ottawa has never forgotten what happened next.

Khadr proclaimed his innocence, embarked on a hunger strike, and ended up in a hospital. His case became front-page news in Canada—just as Jean Chrétien was flying to the region for a trade mission. Under pressure from the press, the prime minister took time out of his busy schedule to meet the suspect’s wife and children, and made sure to broach the case with Pakistan’s late leader, Benazir Bhutto. A few months later, Ahmed Khadr was a free man—kissing the ground when his plane landed in Canada.

Continue…

Will we ever know what happened in Afghanistan?

By Aaron Wherry - Tuesday, October 13, 2009 at 11:21 PM - 5 Comments

Canadian Press chronicles the latest development—allegations of witness intimidation—in the Military Police Complaints Commission’s attempt to investigate allegations of torture in Afghanistan and what the Canadian military knew, or should have known, about it.

Hearings were halted last week amid a dispute over the inquiry’s jurisdiction. The Federal Court has already ruled to limit its scope. The chairman of the commission has been told he’ll be reassigned on Dec. 11, likely before the commission has finished its investigation, despite opposition demands that his term be extended. Citing national security, the Justice Department has advised that some witnesses will not be allowed to testify fully, including Richard Colvin, who claims to have “personal knowledge” of what military police knew or could have known.

The Liberals are pursuing a parliamentary probe of the issue, while the NDP wants the chairman and Mr. Colvin to testify before a Parliamentary committee.

In fairness, how many of us remember Paul Martin?

By Aaron Wherry - Tuesday, September 29, 2009 at 1:41 PM - 152 Comments

The government begins to detail its side of the Suaad Hagi Mohamud story.

The documents allege she lacked knowledge about Toronto, where she had lived for 10 years. She couldn’t name Lake Ontario, and even though she took public transit to work, she had trouble explaining the acronym TTC, the Toronto Transit Commission.

She didn’t know that the acronym for her Toronto workplace, ATS, stood for Andlauer Transportation Services. She also couldn’t name the current or previous prime minister and was unable to describe in any detail how she obtained her driver’s licence.

'Complicit in the abuse of a Canadian citizen's rights'

By Aaron Wherry - Monday, August 31, 2009 at 1:42 PM - 17 Comments

The Globe and Mail editorial board laments the government’s decision to appeal the Federal Court ruling that Omar Khadr be repatriated.

Justice Minister Rob Nicholson is taking the Canadian government out onto a weak limb, in its appeal of a court order on the issue of Omar Khadr’s repatriation from the United States. It is weak legally and even weaker morally. There is no serious principle worth defending.

Here is the victory Ottawa seeks: that the Canadian government can be complicit in the abuse of a Canadian citizen’s rights abroad – up to and including torture – without a court ordering that it do its best to bring that citizen home.

Whether the case is winnable is beside the point. Is it really a victory worth fighting for?

Mind you, the Canadian government’s official position is—or at least was, at last check—that the United States did not participate in torture.

Canada v. Khadr, the Empire Strikes Back

By Aaron Wherry - Tuesday, August 25, 2009 at 12:49 PM - 25 Comments

After the jump, the official statement from Foreign Affairs on the government’s second appeal of the Federal Court ruling that it repatriate Omar Khadr.

For the sake of argument, here is the Supreme Court’s previous ruling on issues related to Khadr’s imprisonment and here is the Federal Court’s ruling.

Both links courtesy of the indispensable Khadr files database maintained here. Continue…

'Its position remains unchanged'

By Aaron Wherry - Monday, August 24, 2009 at 10:16 PM - 39 Comments

The government will appeal to the Supreme Court on the repatriation of Omar Khadr.

Now what?

By Aaron Wherry - Friday, August 14, 2009 at 11:46 AM - 53 Comments

The Federal Court of Appeal upholds the Federal Court’s ruling that the Canadian government is obligated to seek Omar Khadr’s repatriation.

Here is the decision in its entirety. Select excerpts after the jump. Continue…

'I can't point to any risks'

By Aaron Wherry - Tuesday, June 23, 2009 at 9:23 PM - 12 Comments

An odd start to the government’s appeal of the federal court order to seek Omar Khadr’s repatriation. More from the Star and Globe.

The Commons: And then, suddenly, an answer

By Aaron Wherry - Thursday, June 18, 2009 at 6:27 PM - 23 Comments

The Scene. It was not otherwise a particularly remarkable day.

The Liberals persisted in asking the government to account for the current shortage of medical isotopes. The government insisted on doing no such thing. Jack Layton pouted about not receiving an invitation to the Prime Minister’s afternoon tea with Michael Ignatieff the other day. The Prime Minister jabbed his finger and waved his arms and declared the NDP an annoyance. John Baird scorned Mr. Layton with one answer and congratulated him on the birth of his granddaughter—Beatrice Dora Campbell, eight pounds and one ounce, born 12:03am Wednesday morning to Jack’s daughter Sarah—with the next.

Not even the early appearance of Irwin Cotler, the former justice minister rising immediately after Michael Ignatieff had dispensed with his three questions, seemed a cause for much concern. With the House breaking tomorrow for the summer, it appeared the Liberals were merely giving the venerable old lawyer a ceremonial opportunity to register a couple long-held grievances.

He asked first about Omar Khadr. Deepak Obhrai, the foreign affairs minister’s parliamentary secretary, rose with the perfunctory answer.

Mr. Cotler moved to the case of Abousfian Abdelrazik, the Canadian still bunking at our embassy in Sudan, awaiting an answer to the cruel riddle of his situation. “Mr. Speaker, Abousfian Abdelrazik is another abandoned Canadian citizen. In spite of the Federal Court’s severe rebuke, this government continues to violate Mr. Abdelrazik’s rights by refusing to bring him home,” Mr. Cotler posited. “The government has had two weeks to read a judgment that is unequivocal in its findings of fact and conclusions of law. Every day it waits is a continued violation of Mr. Abdelrazik’s rights. Does the government plan on appealing the court’s decision while delaying justice at Mr. Abdelrazik’s expense, or will it heed the court’s order and immediately return Mr. Abdelrazik home to Canada?”

It was here that something truly astonishing happened. Continue…

The latest rebuke

By Aaron Wherry - Thursday, June 4, 2009 at 1:36 PM - 33 Comments

The federal court orders Abousfian Abdelrazik back to Canada.

“Mr. Abdelrazik’s Charter right to enter Canada has been breached by the respondents,” Federal Court Judge Russel Zinn said in a judgment released today. “ Mr. Abdelrazik is entitled to an appropriate remedy which, in the unique circumstances of his situation, requires that the Canadian government take immediate action so that Mr. Abdelrazik is returned to Canada.”