By Paul Wells - Thursday, January 31, 2013 - 0 Comments
Emmett Macfarlane has already written here on the NDP’s Unity Bill, which makes secession easier than the Liberals’ Clarity Act, which as some of the critics Aaron Wherry canvasses have pointed out, isn’t super-clear. I’m not going to try to win arguments here; I learned a long time ago it can’t be done, thanks partly to the superhuman ability of activists in the secession debate to speak and write with certainty about things they haven’t read. If, for instance, you haven’t read Jacques Parizeau’s books Pour un Québec souverain and La souveraineté du Québec, maybe you shouldn’t speculate on what he planned after the 1995 referendum. But on the other hand you probably needn’t let it stop you, because I keep running into people who’ve read the books and still don’t seem to have understood basic points Parizeau repeats frequently.
Anyway. The reason we have spent nearly 40 years debating the effect of referendum results a few points this side or that of 50 per cent is because we have all known for nearly that long that any separatist “victory” in a referendum will be a close thing. If there ever were such a vote, 50 per cent plus a bit on a confusing question, then a sovereignist Quebec government would run into difficulties that don’t have much to do with the text of the Clarity Act and would not be eased by Tom Mulcair’s attempted compromise. Continue…
By Emmett Macfarlane - Wednesday, January 30, 2013 at 12:35 PM - 0 Comments
The NDP is wrong on secession, the Clarity Act and the Supreme Court
“The Reference requires us to consider whether Quebec has a right to unilateral secession. Those who support the existence of such a right found their case primarily on the principle of democracy. Democracy, however, means more than simple majority rule.”
This was a unanimous Supreme Court of Canada in 1998’s reference decision on Quebec secession. The Court went on to declare that only “a clear majority on a clear question” could compel the federal government and the other provinces to engage in negotiations with Quebec on the matter.
It is true the Court did not specify what would actually count as a “clear majority” (55 percent? 60? 67?). That, the justices said, was a matter for the political actors to decide. What is crystal clear, for anyone with the scarcest smidgen of reading comprehension, is that a “clear majority” is something more than 50 percent plus one. The highest court in the land has made an explicit distinction between “simple majority” and “clear majority.”
In 2000, the Liberal government enacted legislation along precisely these lines to dictate the federal government’s response to a future referendum on sovereignty. Dubbed the Clarity Act, the law sets out a timeframe and some conditions (such as taking into consideration the views of other provincial governments, Aboriginal peoples and all the parties in the House) for Parliament to determine whether the results reflect a clear majority on a clear question.
In 2005, the NDP passed the Sherbrooke Declaration, taking the position that 50 percent plus one was sufficient for triggering negotiations. Since then, the party has often stated its belief that such a position was consistent with the Clarity Act. This week, after a Bloc motion to rescind the Clarity Act put pressure on the NDP to clarify its position, the party came out with a private members’ bill that would replace the Clarity Act altogether.
The NDP legislation, dubbed the Unity Bill, would see the federal government enter into negotiations after a simple majority vote on a clear question. The bill, and the party’s defense of it, betrays a cringe-inducing understanding (or blatant misrepresentation) of the Supreme Court’s reference decision, the Constitution and how a presumably “federalist” party ought to act as a defender of the Constitution and national unity.
Craig Scott, the NDP MP (and former law professor!) introducing the bill, has said “the Supreme Court never once hinted that when they were talking about a clear majority, they meant a substantial majority.” He’s right. The Court didn’t “hint” at it at all. It explicitly said so (see the quote above).
If the NDP thinks the Court is wrong then it is certainly free to say so. But instead, the party has introduced a bill on the utterly false proposition that the bill is consistent with what the Court has said.
Piling gaffe onto blunder, in another hilarious misread of the Court’s reference decision the bill would also refer the matter of a “clear question” to the Quebec Court of Appeal. This is a scenario the Supreme Court clearly wanted to avoid when it emphatically declared such a determination was to be made by the political branches.
In some ways this is all moot. There is little reason to be worried about even a simple majority of Quebecers voting yes on a legitimately clear referendum question (despite the razor thin margin in 1995, the question then spoke of a murky “economic and political partnership”). Even if it did, the federal government is not the sole authority on how any negotiations would proceed—each of the other nine provinces would be every bit as important in the process, given the unanimity required under the constitutional amending formula.
Yet the NDP’s stance, to put it as diplomatically as possible, is highly problematic. First, the party is actively, egregiously misrepresenting what the Supreme Court decided on this matter. Second, and more importantly, the NDP is defending a position that the Canadian Constitution could legitimately be torn asunder by an ephemeral simple majority of a single province. The party ignores basic supermajority requirements for constitutional amendment (except, it appears, for the party’s own constitution, which requires a two-thirds majority).
And from a political perspective, the party shuns even deeper principles, for it is impossible to avoid the conclusion that this is a shameless appeal for soft nationalist voters in Quebec. As a result, it is also impossible to be sure that, were it to form government, the NDP would live up to the expectation that it would act first and foremost in defence of Canadian unity and the Constitution.
Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. You can follow him on Twitter here.
By Mike Blanchfield - Friday, January 18, 2013 at 2:03 PM - 0 Comments
OTTAWA – A Nova Scotia woman who tried to hire a hit man to…
OTTAWA – A Nova Scotia woman who tried to hire a hit man to kill her abusive husband says she now wants to re-establish contact with her daughter, whom she hasn’t seen in five years.
Nicole Ryan says she just wants to get her life back in order after the Supreme Court of Canada stayed any further legal proceedings against her.
Her lawyer says Michael Ryan took the couple’s daughter, Amy, now 12, in March 2008 and has kept her from contact with her mother. Ryan said she has no information about her daughter.
“I will continue working, hopefully just to re-establish my life, put my life in order,” Ryan told a news conference at her lawyer’s office in Halifax.
“I’d like to thank the Elizabeth Fry Society. Hopefully, they will be able to help me now to re-establish contact with her.” Continue…
By Mike Blanchfield - Friday, January 18, 2013 at 10:03 AM - 0 Comments
OTTAWA – A Nova Scotia woman who tried to hire a hit man to…
OTTAWA – A Nova Scotia woman who tried to hire a hit man to kill her abusive husband is free after the Supreme Court of Canada ordered a stay of proceedings in her emotional case.
The high court also raised serious questions about the conduct of the RCMP and Nova Scotia prosecutors, saying it is “disquieting” that the Mounties chose to mount a sting operation to arrest Nicole Ryan rather than respond to her husband’s “reign of terror” over her.
Ryan was originally acquitted of counselling to commit murder in 2010, a decision that was upheld by Nova Scotia’s appeal court. She was arrested in 2008 when she tried to hire an undercover RCMP officer to kill Michael Ryan — who had threatened to kill her and her daughter and burn their house down.
Technically, the Supreme Court granted the Crown appeal and overturned the acquittal, saying her defence of duress wasn’t valid.
But they shut down any attempt by Nova Scotia prosecutors to re-try her. Continue…
By The Canadian Press - Friday, January 18, 2013 at 6:04 AM - 0 Comments
OTTAWA – The Supreme Court of Canada delivers a landmark ruling today on the…
OTTAWA – The Supreme Court of Canada delivers a landmark ruling today on the battered woman’s defence when it rules in the explosive case of a Nova Scotia woman who tried to hire a hit man to kill her abusive husband.
It is the first time in 23 years that the Supreme Court is dealing with the issue, and today’s widely anticipated ruling could reshape the landmark defence in the case of Manitoba’s Angelique Lavallee, who was acquitted of the charges against her for fatally shooting her abusive boyfriend.
Today, the high court is considering the case of Nicole Ryan, whose marriage to an ex-soldier was described as a “reign of terror” by the Nova Scotia trial judge that originally acquitted her of attempted murder.
By The Canadian Press - Thursday, January 17, 2013 at 1:18 PM - 0 Comments
OTTAWA – The federal government scored another court victory Thursday in an ongoing battle…
OTTAWA – The federal government scored another court victory Thursday in an ongoing battle over its changes to the Canadian Wheat Board.
The Supreme Court of Canada ruled it will not hear an appeal by eight former board directors, who accused the government of breaking its own law by making radical changes without first holding a plebiscite among grain producers.
New legislation introduced by Prime Minister Stephen Harper’s Conservative government strips the marketing agency of its monopoly on western wheat and barley sales. Continue…
By The Canadian Press - Thursday, January 17, 2013 at 12:10 PM - 0 Comments
MONTREAL – The Supreme Court of Canada has approved the confiscation of a vehicle…
MONTREAL – The Supreme Court of Canada has approved the confiscation of a vehicle belonging to a repeat drunk driver, which overturns a lower-court ruling.
In a 7-0 decision released Thursday, the justices ruled that a Quebec court was wrong to deny the forfeiture order.
The case involved Alphide Manning, who was arrested near Baie-Comeau in April 2010.
He eventually pleaded guilty to two counts of impaired driving and was sentenced to 12 months on one charge and five months on the other. The Crown had also moved to seize the truck Manning was driving when he was arrested.
Manning argued that the loss of the $1,000 vehicle, his sole asset, would be overly harsh. Continue…
By Emmett Macfarlane - Thursday, December 20, 2012 at 1:43 PM - 0 Comments
Balancing rules are akin to parking a tank on one side of a seesaw, writes Emmett Macfarlane
Ask observers to sum up Beverley McLachlin’s reign as chief justice of the Supreme Court of Canada and you’ll hear a lot about consensus building. Her modus operandi in difficult Charter of Rights cases has usually consisted of avoiding one-sided proclamations of principle in favour of meting out compromise and getting her colleagues to join her on a moderate, often minimalist, judicial path. Continue…
By Mike Blanchfield - Thursday, December 20, 2012 at 10:50 AM - 0 Comments
OTTAWA – The Supreme Court of Canada, in a split decision, has ruled that…
OTTAWA – The Supreme Court of Canada, in a split decision, has ruled that in certain circumstances, a woman can wear a religious veil known as a niqab while testifying in court.
The landmark ruling in a case that pitted religious freedom against an accused person’s right to a fair trial will affect future cases involving religious accommodation in courtrooms.
In this latest case, a Muslim woman sought to wear a niqab while testifying against two men she claims sexually assaulted her when she was a child.
In a rare 4-2-1 split decision, the Supreme Court referred the matter back to an Ontario trial judge that had just started hearing the case in a preliminary hearing.
The high court outlined a series of considerations that trial judges must weigh in determining whether a witness is allowed to cover their face while on the witness stand.
"Future cases will doubtless raise other factors, and scientific exploration of the importance of seeing a witness's face to cross-examination and credibility assessment may enhance or diminish the force of the arguments made in this case," says the majority judgement.
"At this point, however, it may be ventured that where the liberty of the accused is at stake, the witness's evidence is central to the case and her credibility vital, the possibility of a wrongful conviction must weigh heavily in the balance, favouring removal of the niqab," it adds.
"The judge must assess all these factors and determine whether, in the case at hand, the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so."
The controversial issue, which has divided the Muslim community, has reared its head in recent years, leading to a new law in Quebec for public sector workers and new federal immigration rules that ban face coverings while taking the oath of citizenship.
Due to a publication ban, the woman can only be identified as N.S.
The two accused claim the Charter of Rights and Freedoms allows them to confront their accuser and observe her facial expressions as she testifies.
By The Canadian Press - Wednesday, December 19, 2012 at 10:58 AM - 0 Comments
OTTAWA – The Supreme Court of Canada says several major public unions are not…
OTTAWA – The Supreme Court of Canada says several major public unions are not entitled to a $28-billion pension surplus that the government hived off to help pay down the deficit.
The unanimous high court ruled 9-0 that the government does not have a “fiduciary obligation” to return funds to the public sector unions.
The ruling ends a long legal battle dating back to the 1990s in which unions representing public servants, the RCMP and the military wanted the surplus money returned.
The unions and professional associations were attempting to overturn an Ontario Court of Appeal ruling that said they weren’t entitled to the money.
The unions argued that the government improperly took their money, from the mandatory, defined benefit plans.
The plans are among some of the most handsome pensions in the country.
By Emmett Macfarlane - Monday, December 17, 2012 at 1:16 PM - 0 Comments
Supreme Court maintains cautious balance between national security concerns and individual rights
A set of Supreme Court of Canada rulings last Friday upholding anti-terrorism provisions of the Criminal Code came as little surprise to those familiar with the court’s post-9/11 national security decisions.
The court, like its counterparts in many Western democracies, has faced the central challenge of balancing national security concerns with individual rights. Civil libertarians have been concerned that anti-terror laws are constructed in a way that infringes due process, violates privacy rights and leads to racial profiling.
The Canadian court’s record in national security cases can be summarized as cautious. Its decisions have been imbued with a vigilant rhetoric about rights but also a general prudence about the legitimate policy objectives at stake.
Just four months after 9/11, a unanimous Court ruled that deporting suspected terrorists to countries where they could face torture was unconstitutional, while at the same time articulating a broadly deferential approach to ministerial determinations of the likelihood of torture and (disturbingly) leaving the door open to “exceptional circumstances” where deportation to torture might be justified.
In 2004, a majority of the court upheld provisions of the Anti-Terrorism Act that provided for investigative hearings, which granted judges the power to compel a person who has information to appear before them and answer questions. The justices determined that there were appropriate safeguards (immunity protections and the preservation of the right against self-incrimination) to allow the provisions to stand.
Three years later, the court unanimously struck down particular aspects of the security certificates regime that allow for foreign nationals or permanent residents to be indefinitely detained. The law had prevented detainees from knowing the case against them, thus impairing their right to a fair hearing. The justices gave Parliament a year to craft new provisions to remedy the infringement.
The court will be revisiting the security certificates regime in the Mohamed Harkat case next year, and it will be interesting to see how it deals with the fundamental problem it avoided addressing in the 2007 case: individuals believed to be security threats are detained or have conditions imposed on their freedom indefinitely, without criminal charges being brought forward, but they also can’t be deported because they would likely face torture. It is a seemingly intractable rights conundrum generated by our respect for rights.
The justices have also had to deal with the Canadian government’s role in the detention of Omar Khadr at Guantanamo Bay. In 2008 the court unanimously ruled the charter applied to the conduct of Canadian officials, ordering the disclosure of documents related to CSIS interviews with the teenager conducted in 2003.
Two years later, the court ruled that Khadr’s charter rights were violated by his continued detention, but stopped short of ordering the government to seek his repatriation. I have criticized this remedial deference elsewhere.
Almost all of these decisions have featured a unanimous court. Further, the unanimous decisions were either written by “The Court” – a convention of authorship often reserved for the most important cases – or by the chief justice. That last week’s decisions were penned by Chief Justice McLachlin with unanimous backing stands as an important continuation of that trend (and it comes at a time when the chief has been in dissent in a string of cases in other areas of law).
One of the major issues the court faced in Friday’s cases was whether the definition of terrorism, which states that a terrorist activity must be an act or omission committed in whole or in part “for a political, religious or ideological purpose, objective or cause” violates freedom of expression, religion and assembly under section 2 of the Charter of Rights. The appellants argued that this “motive clause” produces a “chilling effect,” effectively criminalizing the expression of beliefs and opinions.
McLachlin was fairly blunt in her assessment of this claim, noting that violence or the threat of violence are not protected forms of expression. Reading the anti-terror provisions in context and in a manner consistent with their purpose, the court determined its focus is on prohibiting violent acts. Further, as the chief justice points out, the anti-terror sections of the code “expressly declares that “terrorist activity” within the meaning of the Criminal Code does not include the non-violent expression of a political, religious or ideological thought, belief or opinion.”
The chief justice also took pains to address concerns about racial or religious profiling:
“Criminal liability should not be based on a person’s political, religious or ideological views. Police should not target people as potential suspects solely because they hold or express particular views. Nor should the justice system employ improper stereotyping as a tool in legislation, investigation or prosecution. In the present case, the impugned provision is clearly drafted in a manner respectful of diversity, as it allows for the non-violent expression of political, religious or ideological views. It raises no concerns with respect to improper stereotyping.”
It was a relatively easy case for the Supreme Court. Read in isolation, the “motive clause” appears troubling on the surface. But the justices placed the clause in the context of the Criminal Code’s anti-terror provisions, preserving the legitimate objectives of the law while giving a rhetorical nod to the rights concerns at issue.
Not all cases will be so straightforward. With the Harkat case landing on its doorstep, it will be interesting to see if the Court can maintain its cautious balance.
Emmett Macfarlane is an assistant professor of political science at the University of Waterloo. You can follow him on Twitter @EmmMacfarlane
By The Canadian Press - Friday, December 14, 2012 at 9:54 AM - 0 Comments
OTTAWA – The Supreme Court of Canada has declared the country’s controversial anti-terror law…
OTTAWA – The Supreme Court of Canada has declared the country’s controversial anti-terror law to be constitutional in a series of unanimous, precedent-setting rulings that affirmed how terrorism is defined in the Criminal Code.
In a 7-0 ruling, written by Chief Justice Beverley McLachlin, the court on Friday dismissed a series of charter appeals brought by three men, including terrorist Momin Khawaja, the first person ever charged under the anti-terror law that was passed in the wake of the 9-11 attacks. Continue…
By The Canadian Press - Friday, November 9, 2012 at 10:51 AM - 0 Comments
OTTAWA – The Supreme Court of Canada has ruled that a British Columbia school…
OTTAWA – The Supreme Court of Canada has ruled that a British Columbia school board discriminated against a severely learning disabled boy by not doing enough to give him the help he needed.
In their 9-0 ruling the judges sided with Rick Moore and his son Jeffrey, who is dyslexic.
The case began in the 1990s, when Rick Moore complained that the North Vancouver school district discriminated against Jeffrey, who was eight years old, in Grade 3 and unable to read.
Teachers knew of the boy’s disability and referred the case to a diagnostic centre for special attention, but the district closed the centre for budgetary reasons before he could enrol.
His father instead put Jeffrey into an expensive independent school which catered to students with learning disabilities. Jeffrey went on to attend a post-secondary institution and now works full-time as a plumber.
Moore complained to the British Columbia Human Rights Tribunal that the district had discriminated against his son by failing to accommodate his disability. Continue…
By Aaron Wherry - Monday, October 29, 2012 at 12:41 PM - 0 Comments
Stephen Thiele and Gavin Tighe, Borys Wrzesnewskyj’s lawyers, consider the ramifications of the Supreme Court’s decisions.
In today’s modern era where most people have access to computers and telephones, it no longer makes sense to rely on a purely paper-based system of voting and record-keeping. Voting over the Internet utilizing a secure pin number already exists and has been adopted by various organizations without complaint. Such a system would eliminate, among other things, the need for the completion of a paper “Registration Certificate” for unregistered electors, do away with “vouching” in order for an elector to prove his or her identity, and possibly eliminate the need to show up at a polling station at all.
Such a system may also make voting more convenient and thus “enfranchise” more voters by making it easier for electors to vote in elections. Accordingly, we hope that the decision of the Court may have some unintended positive consequences for electoral reform. A system not unlike that used by the Canada Revenue Agency in the filing of tax returns could be envisaged for the operation of elections.
See previously: Accepting imperfection
By Aaron Wherry - Friday, October 26, 2012 at 11:00 AM - 0 Comments
The majority decision has a firm grasp on the practical realities at place. The judges write that “our electoral system must balance several interrelated and sometimes conflicting values. Those values include certainty, accuracy, fairness, accessibility, voter anonymity, promptness, finality, legitimacy, efficiency and cost. But the central value is the Charter-protected right to vote.” [para. 44] Further, they note that the “current system of election administration in Canada is not designed to achieve perfection, but to come as close to the ideal of enfranchising all entitled voters as possible. Since the system and the Act are not designed for certainty alone, courts cannot demand perfect certainty. Rather, courts must be concerned with the integrity of the electoral system.”
This may be cold comfort to those who worry about fraud or simple errors resulting in ineligible votes. Some may not even care that there was no evidence of enough truly ineligible ballots to affect the outcome (let alone zero evidence of fraud). But if the cost of procedural safeguards to ensure absolute certainty in this regard is the disenfranchisement of legitimate voters then we may need to live with the reality that no system is perfect. At the very least, as the judges in the majority were correct to conclude, we need to have concrete evidence that results have been adversely affected by potential errors before we start overturning elections.
Adam Goldenberg also praises the decision.
Like Bush v. Gore, Opitz v. Wrzesnewskyj was a split decision. In 2000, five Republican-appointed justices voted to end the Democrats’ last hopes of victory. Thursday, by contrast, two of the four judges who voted to keep a Conservative MP, Opitz, in office were Liberal nominees.
But in Canada, such partisan math does not matter. True, the Etobicoke Centre dispute was about politics; an election was won by 26 votes, a losing candidate challenged the result, a lower court overturned it, and the winner appealed to the country’s higest court. But the Supreme Court’s decision turned on its mandate to set precedent, not settle scores. And, unlike their American brethren, the Canadian court got it right.
By Paul Wells - Thursday, October 25, 2012 at 11:20 AM - 0 Comments
There was some chatter on Twitter this morning, after the Supreme Court ruled to uphold the election results in Etobicoke Centre, to the effect that Stephen Harper has finally succeeded in stacking the top court with corrupt thugs and we are now fully entered into a post-democratic era here in KanuckiHarperStan. My hunch is that this overstates things.
First, this was actually the Harper government’s first good day at the Court in a while. The Supremes have more often been in the habit of handing Harper trouble, as with the Insite supervised-injection site case and Jim Flaherty’s dead-parrot project for a national securities regulator. In those highest of high-profile cases, Harper appointees concurred with their colleagues in unanimous judgments.
Today there was division, and it didn’t follow partisan lines neatly. (I’ll cut to the chase: I think it’s simplistic to presume a justice appointed by a given PM will consistently rule in ways that please that PM. This has simply never been the case in Canada, to the dismay of a succession of prime ministers.)
Today’s majority included Michael Moldaver and Marshall Rothstein, appointed by Harper, and Marie Deschamps and Rosalie Abella, appointed by Jean Chrétien and Paul Martin respectively [I got that wrong the first time around — pw]. The dissent was written by Chief Justice Beverley McLachlin, appointed to the court by Brian Mulroney and elevated to Chief Justice by Chrétien, with Chrétien appointees Louis Lebel and Morris Fish concurring.
The “swing” votes here were Abella’s and Deschamps’. And this isn’t the first time that has happened. Continue…
By Aaron Wherry - Thursday, October 25, 2012 at 9:48 AM - 0 Comments
The Supreme Court has ruled in favour of Conservative MP Ted Opitz and there will be no by-election in Etobicoke Centre.
Update 10:12am. A statement from Mr. Opitz.
I thank the court for its carefully reasoned decision. It is important to respect the will of the voters in Etobicoke Centre which was demonstrated by the result of the election. I agree with the court’s decision where it identified the importance of enfranchising the electors of Etobicoke Centre. As the court decision confirmed, a fair election took place, the result was clear, was then confirmed on a recount and the result has now been endorsed by the Supreme Court of Canada.
Fifty two thousand people in Etobicoke Centre followed the rules, cast their ballots and today had their democratic decision upheld. I look forward to continuing my work as the MP for Etobicoke Centre, as we continue to implement Prime Minister Harper’s economic action plan to create and protect jobs.
The Prime Minister’s Office is pleased.
Update 10:32m. A statement from interim Liberal leader Bob Rae.
While we are disappointed in today’s split decision to overturn the Ontario Superior Court ruling, we accept it as the judgement of the majority of the Court. No doubt there will be a need to review both the opinions of the majority and the minority, and assess what further changes are needed to our election laws.
In addition to the split ruling today, there still exists a disturbing trend of irregularities and reports of election fraud stemming from the 2011 general election. We cannot forget that Canadians across the country were deprived of their right to vote through a coordinated attack on our democracy. Though Mr. Wrzesnewskyj’s case did not deal directly with these matters, it cannot be divorced from the allegations that have called into question the strength of our democracy. There is still much work to be done and many questions to be answered in order to restore our confidence in Canada’s electoral institutions.
I would like to thank Mr. Wrzesnewskyj for his tireless efforts in pursuing this cause. His dedication to upholding the integrity of Canada’s electoral system and the faith we have in Canada’s democracy is nothing short of remarkable. Regardless of the capacity, I know Mr. Wrzesnewskyj will continue to serve his community and the people of Etobicoke Centre.
By The Canadian Press - Thursday, October 25, 2012 at 6:13 AM - 0 Comments
TORONTO – The Supreme Court of Canada is to announce today if it will hear appeals affecting the country’s main prostitution-control laws.
TORONTO – The Supreme Court of Canada is to announce today if it will hear appeals affecting the country’s main prostitution-control laws.
In a ruling earlier this year, Ontario’s top court struck down the ban on bawdy houses on the basis that it increased the dangers prostitutes face because they are forced to work outside.
Prostitution itself is not illegal in Canada, though many of the key activities were banned under the three laws considered by the Court of Appeal for Ontario.
The justices also reworded the law against living on the avails of prostitution to clarify it would only apply in cases of exploitation because it could otherwise apply to people such as a prostitute’s bodyguards, accountant or receptionist.
Justice Minister Rob Nicholson said Ottawa appealed in an effort to get the Supreme Court to create legal certainty by providing a binding, national ruling on prostitution.
The Ontario court rejected Ottawa’s contention that prostitutes knowingly choose an inherently dangerous occupation, but suspended its ruling on brothels for 12 months to give Parliament an opportunity to draft a new law.
Toronto lawyer Alan Young, who represented the sex-trade workers, is also seeking to appeal the Appeal Court ruling which upheld the ban on street prostitution.
“If we’re going to be dragged to review those rulings, we might as well then appeal the ruling on communication because we always felt that law had many constitutional flaws,” Young said earlier this year.
By Aaron Wherry - Friday, October 19, 2012 at 3:15 PM - 0 Comments
A note from the Supreme Court advises that a ruling in the case of Ted Opitz et al. v. Borys Wrzesnewskyj et al. will be delivered at 9:45am on Thursday.
See previous coverage of Etobicoke Centre here.
By Paul Wells - Thursday, October 4, 2012 at 2:45 PM - 0 Comments
Unlike Justin Trudeau, Wagner’s role in shaping Canada’s future is assured
On Oct. 2 two sons of Quebec politicians stepped into the centre of our national life. You have heard so much about one of them. You may know nothing about the other. Justin Trudeau has been famous since the day he was born. Richard Wagner has been a civil litigator and a judge, essentially anonymous outside legal circles. Stephen Harper nominated Wagner to the Supreme Court on the same day Trudeau threw his boxing glove into the ring for the federal Liberal leadership.
Their fathers might have shared a chuckle over the curious timing. Pierre Trudeau changed the course of Canadian history three or four times. Claude Wagner had a shot at changing Canadian history three or four times, and fell short every time. The life of the elder Wagner, who died in 1979, hints at a different path Canada could have taken. Richard Wagner’s qualiﬁcations are easily enough to qualify him for nomination to the Supreme Court, but the Prime Minister surely knows his father’s story, surely savoured the echoes of history when he nudged the younger Wagner into the headlines next to the younger Trudeau.
At the Progressive Conservative party convention in 1976, Claude Wagner led on every ballot except the last. In the end Joe Clark rose from the middle of the pack to beat him by 65 votes out of 2,309 cast. Wagner was a small-town populist, hard-working, no great intellectual, unapologetically right-wing on law and order. Clark had aspirations. He yearned for the approval of big-city progressives. Wagner would have led the party in a very different direction. Clark won the next federal election. A year after that happened, Wagner died of cancer.
By The Canadian Press - Tuesday, October 2, 2012 at 12:15 PM - 0 Comments
OTTAWA – Justice Richard Wagner of the Quebec Court of Appeal has been nominated…
OTTAWA – Justice Richard Wagner of the Quebec Court of Appeal has been nominated to fill the vacancy on the Supreme Court of Canada.
Prime Minister Stephen Harper announced the nomination today, saying Wagner was selected after a rigorous evaluation.
“Held in high esteem by his judicial colleagues and members of his bar association, he is an exceptional candidate with the skills and qualifications needed to serve Canadians well,” Harper said in a statement.
Wagner will fill the seat left empty when Justice Marie Deschamps retired in August.
The new justice was chosen from a pool of candidates picked in consultation with the attorney general of Quebec and senior members of the judiciary as well as prominent legal organizations. Members of the public were also invited to submit their suggestions for qualified candidates.
A panel of MPs then whittled that pool down to three names and Harper made the final selection.
The nominee will be questioned by a select Commons committee on Thursday.
Wagner became a lawyer in 1980 and worked as a civil and commercial litigator before being named to the Quebec Superior Court in 2004.
He was raised to the appeal court in 2011.
He comes from a family prominent in Quebec legal and political circles.
His father, Claude Wagner, was a Crown attorney, a law professor, a judge and a senior politician in the province. He served as a judge, then as solicitor general, attorney general and justice minister in Jean Lesage’s Liberal government of the 1960s before returning to the bench.
The senior Wagner was elected a federal Tory MP in 1972 and ran unsuccessfully for the Conservative leadership in 1976, losing to Joe Clark.
He was named to the Senate in 1978 by Pierre Trudeau, but died of cancer the next year.
The younger Wagner earned a B.A. and a licence in law from the University of Ottawa before entering practice.
By Aaron Wherry - Monday, September 17, 2012 at 1:55 PM - 0 Comments
Stephane Dion chides the Conservatives on news that the Harper government will be referring its Senate reforms to the Supreme Court.
“Liberals have long called on this government to refer its Senate reform legislation to the Supreme Court in order to ensure its constitutionality. In fact, it was Liberal Senators who first made this recommendation in a 2007 report of the Standing Senate Committee on Legal and Constitutional Affairs. Unfortunately, the government chose to ignore our requests, and instead spent years dragging its feet.
“It is puzzling that it has taken the Harper Conservatives so long to come to this realization. Had they heeded our advice at the outset, they would be five years further down the road on these changes.”
By Aaron Wherry - Monday, September 17, 2012 at 9:30 AM - 0 Comments
More than six years after forming government, the Conservatives want the Supreme Court to review their plans for Senate reform.
The Supreme Court reference, expected to be formally announced in the fall, would cause another round of delays in the passage of Prime Minister Stephen Harper’s Bill C-7. Since 2006, the Conservative government has called for all new senators to be selected through provincial elections and to serve under a fixed term, with the latest version of the legislation proposing a nine-year mandate…
The Quebec government called on the province’s court of appeal to rule on C-7’s constitutionality last May, although the matter has yet to be heard. In that context, sources said the government intends to refer its unilateral reform plans to the Supreme Court as a pre-emptive move against an eventual challenge.
By The Canadian Press - Sunday, August 12, 2012 at 7:48 AM - 0 Comments
The Chief Justice of the Supreme Court of Canada is preaching the need for improved access to justice for the public, particularly for civil and family matters.
VANCOUVER — The Chief Justice of the Supreme Court of Canada is preaching the need for improved access to justice for the public, particularly for civil and family matters.
Beverley McLachlin raised the issue on Saturday in a speech to the Canadian Bar Association’s annual conference.
She said there are many issues preventing people from having their day in court, such a lack of judges, and the number of cases before the courts.
“I think that justice is something which every citizen—every person in Canada—is entitled to,” McLachlin told reporters after her speech. “(But) people have problems accessing the justice system.
“The cost and delay involved in litigation may prevent people who have legal grievances, who have suffered wrongs, from bringing those forward,” she said.
McLachlin said judicial leaders across the country must make an effort to ensure the court systems in their jurisdictions are running smoothly.
If people don’t think they can get ready access to justice they won’t have high respect for the law, she said.
“Being able to access justice is fundamental to the rule of law,” she said.
She says Canada, unlike other nations, still believes access to justice is an important part of democracy.
However the Chief Justice stopped short of naming nations in which she feels the justice system is increasingly inaccessible.
McLachlin has raised the issue of access to the justice system on more than one occasion in the past.
Another issue put to McLachlin by reporters is the use of social media in the courtroom.
Recently B.C. became the third province to allow accredited media or lawyers to use social media such as twitter in courtrooms while cases are being heard.
The ruling effectively allows reporters to give a real time account of what is being said in a courtroom and has even been specifically banned in some courtrooms in the United States.
But, McLachlin said Canada’s supreme court has not made a firm decision on the issue.
“I know in some parts of the country it’s being done,” she said. “We’re looking at it.”
By Aaron Wherry - Wednesday, August 1, 2012 at 1:27 PM - 0 Comments
Elsewhere on Macleans.ca, Emmett Macfarlane gives the Supreme Court a share of the blame for Omar Khadr’s situation.
Seemingly lost in the controversy surrounding Omar Khadr and the federal government’s ongoing efforts to delay his return to Canada is the culpability of the Supreme Court of Canada in the entire affair … Basing the need for deference on the executive’s prerogative powers over foreign affairs, the Supreme Court decided to leave it to the federal government to determine how best to remedy the Charter breach. This was an unusual – and disturbing – move for a Court that in other contexts has made it clear that the Charter is not worth the paper it is written on without meaningful remedies.
At iPolitics, Stephen Neil considers Mr. Khadr’s chances of winning financial compensation when he returns to Canada.