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Why should I care about the Supreme Court?

Posted by Don McLenaghen on May 18, 2011

Supreme Court of Canada

Where does it fit in?

Although established at the inception of our nation, the original the Supreme Court of Canada was not supreme; in fact until the British Privy Council was abolished in 1949 it was last court of appeal. There was a sort of limbo for our legal system until the repatriation of our constitution in 1982 at which point the court truly was supreme. Since 1982 not only does the Supreme Court rule on the letter of the law; they also interpret the meaning of and implementation of the Constitution and Charter of Rights as well as a unique role of answering ‘reference questions’. Reference questions occur when the Governor General (on the behalf of the PM) asks the court if a proposed law would be constitutional or not; a prejudgment of law as it were.

Why are they important?

Although parliament may make law, how that law is actually enforced in our country or IF it is allowed to remain a law at all lies in the hands of the Supreme Court. One great example was the legality of Abortion; for decades the Supreme Court upheld limitations on abortion however in 1988 the court struck down our laws and to this date we have no law on abortion…we are one of the few countries that treat abortion as a purely medical matter between doctor and patient. Similar landmarks occurred with regard to the recognition of Aboriginal rights or the definition of hate speech and the limitation of free speech.

Who are they?

Currently there are 9 members of the SC of C. By law, 3 must be appointed from Quebec, by tradition 3 from Ontario, 2 from “the West” and 1 from the Maritimes. For a case to be heard by the court, it must first be approved of by a committee of at least 3 justices. This means that before any case even reaches the Supreme Court it must first be approved by a this committee; this is the first opportunity for the ideology of the justices can influence the way our constitution and laws are implemented.

Once a case is approved, it is then heard by any from 5 to 9 judges unlike the American Court there cases are heard by the complete 9 court members. At the moment, of the 9 justices 6 have been appointed by the Liberals and 3 by the Conservatives however in the next 4 years, 4 more members are to be replaced due to forced retirement and that does not include those who quite for other reasons. This point is brought home by the recent announcement of Justice Louise Charron who is retiring early for personal reasons. At present these retirements will allow Harper to appoint at least 7 of the 9 justices.

How are they appointed?

First, there are two parts of our Canadian constitution – legislative and convention. The legislative are those parts of our constitution that are written down…such as the Constitution Act of 1982 or our Charter of Rights and Freedoms…they are physical documents that set down in words the rule of law. Another part is the convention part…those procedures that are followed not because they are prescribed in law but by tradition…they have always been done that way.

An example of this is the Governor General does not HAVE to sign a bill into law; there is no legal requirement or a legal means for the Parliament to sidestep the necessity of the Royal Assent. However, by convention the GG has never refused to give consent to a bill passed by Parliament although one Lieutenant Governor did refuse to sign three laws in 1937 that he felt were unconstitutional; a belief that was upheld by the Supreme Court/Privy Council.

The appointment of Justices to the Supreme Courts largely falls into the convention part of our constitution. Technically the GG appoints them on the advice of the Privy Council…in fact they are selected solely by the whim of Prime Minister. However by law[1] they must be members of the Bar (i.e. lawyers or judges) and by convention, the PM selects the Justices from candidates presented to him by a judicial advisory committee of the provinces ‘due’ a justice (to maintain the balance mentioned earlier. For “the west”, each province rotates, so one justice comes from BC, the next from Alberta…etc.; this also occurs in the Maritimes).

There have be over time many complaints about the power invested in the PM to “stack the deck” with ideologically friendly justices, that there was no input from the Parliament in the appointment and there was a lack of transparency in the process. In response to these criticism, Prime Minister Paul Martin in 2004 attempted to set up a committee to review nominees however this process became politicised when the Conservatives on the committee refused to sign off on the report from the committee because they felt the powers they had were insufficient; desiring a system that emulated the process in the USA where justices must be voted on by the senate prior to appointment…a process that is now considered a hyper-partisan inquisition. In response, the process was amended so as to allow the committee to select the “top three” candidates from a list of 7, one of which the PM would then select. Once in power, Harper did set up a review committee for his first nominee but quickly abandoned the idea and appointed the nominee of his choice stating that the process was too slow and political.

Lesson south of the border

caveat – it has been brought to my attention that the following paragraph is presented in a less than flattering light with some literary and political licence. As my readers probably know by now my political leanings are a little left of extreme left, so in my discussion of the US Supreme Court, I hope you will understand that I believe what I am writing to be honest and fair is not exactly balanced however one may wish to read it with “a grain of salt”[2]>

After years of lobbying and concerted effort the American Supreme Court has become what appears to be the judicial branch of the Republican Party promoting a right-wing corporatist agenda. For example, Clarence Thomas[3] and Antoni Scalia[4] have been noteworthy and active participants at a number of Neo-con gatherings with Thomas’s wife being a lobbyist for the prominent Tea-party group[5]. Having successive far right justices being promoted to the court (Clarence Thomas, Antonin Scalia and Samuel Alito being the worst with John Roberts, Anthony Kennedy not much better), the current court has become infamous for its patrician decisions including what has been called the Supreme Court coup d’état of 2000, the Citizens United case and many more. Don’t get me wrong, with the possible exception of the ruling on the “Florida Election Recount of 2000”, the courts are not ‘creating’ law but how they interpret laws and how they word their verdicts have wide ranging implications. My point is to show why and how the justices are important.

Let’s take a look at judicial philosophy; in the US there is a debate about how the constitution should be interpreted (one I am sure will become common here). On the one side you have what are called “living constitutionalist”, who believe that when the constitution was written the authors accepted that as time changes the interpretation of the constitution would change…that like a living creature the constitution (and the law it would give rise to) would evolve. A great example is the status of African Americans and their civil liberties. As society changed so did the depth and breadth of civil liberties.

On the other hand there is what is called Literalist or Originalist. They hold that what is written is written in stone, which comparing the constitution to a ‘living creature’ one would have to be, using the words of Justice Scalia, an “idiot”[6]. To them it is from the original meaning of the words used and not the intent of the founders, which should form the basis of interpreting the constitution. For example, capital punishment has been largely banned from civilized countries because it is seen as ‘cruel and unusual punishment’ and therefore a violation of civil rights. Justice Scalia would argue that capital punishment, at the time of the writing of the applicable part of the constitution (8th amendment), was not seen as cruel or unusual punishment therefor it does not violate civil rights and should therefore be legal[7].

Who is on the court can have a huge impact not only on what they rule but on what they see as their powers of interpretation…the very philosophical foundation of the rule of law.

Beyond how the constitution or laws are interpreted, the scope of the ruling can also have a wide ranging impact. In the US (they tend to provide more colourful, extreme and clear examples) the case of Citizens United was to determine that a third party could release a documentary about Hilary Clinton during the Primaries in the US. Clinton got an injunction because of the bias nature of the film, Clinton argued it was actual political advertising and as such violated electioneering laws. The case in the narrow sense was an issue of broadcasting rights but out of character for this court, Chief Justice Roberts decided to rule on an issue not actually part of the plaintiffs case; that being the financing of the film. This was unusual because the plaintiff (Citizens United) had already abandoned facial complaints[8]. In a landmark decision the Roberts case essentially struck down election advertising rules.

Who is on the court can have a huge impact not only on what they rule but on what they see as the question.

In Canada, our constitution is seen differently than the American one. We follow, for now, a doctrine of interpretation called Living Tree Doctrine or Doctrine of Progressive Interpretation. Lord Sankey stated: “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits.” This means that the Constitution cannot be interpreted in the same way as an ordinary statute. Rather, it must be read within the context of society to ensure that it adapts and reflects changes.

Why should skeptics worry?

The worry we may have is that as PM, Harper has shown signs of being both extremely controlling and dictatorial. A number of political commentators have expressed concern and surprise at the level of control Harper has maintained over his party and the level of contempt for parliament in general. Remember the Conservatives were convicted of contempt of Parliament in part for lying to parliament and in part for refusing to provide government information to committees over public policy. In articles written in the Globe and Mail[9] and the National Post[10], concern was raised over the possible radical direction the court may take on if Harper’s selection, for the Supreme Court of the land, should be of a similar ideological mind as his own.

IF the fears that he does have intention, now that he has a majority to promote a neo-con agenda, the Supreme Court may be the only restraining force left in the land. Now although personally I find most of the conservative government’s policies wrong, many of them are open to valid debate this is not why I fear what Harper may do to our judiciary; what I worry about is the likelihood that Harper will take his tendencies to ideologically dictate political policy to the judiciary and that some of those ideologies should be of concern not just to leftist but skeptics in general. Some issues that may be of concern: Harper seems to be a Climate Change Denier, there have been many members of his party who wish to put restriction on marriage and abortion based on religious grounds, G20 has shown that there is a lack of respect of political and individual rights, and with his conviction of contempt of parliament and election fraud one must wonder where he may lead the country in the future.

As skeptics we must remain informed, aware and poised to action. We should insist that appointees to the Supreme Courts…any court…should base their decision on law or on science based principles…and not on political ideology or religious theology.

Upcoming cases…

Charter of Rights – Reasonable limits prescribed by law [11]

Legality of the Safe injection site – Does the Controlled Drugs and Substances Act violate the Charter of Rights because enforcement has grossly disproportionate effects on addicted persons

Hate Speech –

The Christian Truth Activists distributed four flyers in the mailboxes of various homes in Saskatoon and Regina in 2001 and 2002. Four persons who received the flyers filed complaints alleging that the material in them “promotes hatred against individuals because of their sexual orientation”. The Saskatchewan Human Rights Commission held the pamphlets, which referred to “sodomy marriage” and graphically described sexual behaviours in a derogatory manner, was hate speech.

The Christian Truth Activists argue first it does not count for it does not single out a group based on sexual orientation but a sexual behaviour and that further that IF the law does apply to sexual behaviour, then the definition of sexual orientation is overbroad in its definition.

Environmental Law[12]

Abitibi-Bowater Inc. has argued that a statutory duty to remove environmental contamination may be extinguished under the Companies’ Creditors Arrangement Act like a commercial debt. Companies’ Creditors Arrangement Act is a Federal Act that allows financially troubled corporations the opportunity to restructure their affairs to avoid bankruptcy. The Government of Newfoundland issued several environmental protection orders for Abitibi to clean up land it had contaminated by its large scale industrial activities. Abitibi argued that when it filed for a restructuring it freed itself of the obligation of the clean-up orders. The court must determine if government orders are legally equivalent to ‘commercial debit’ claims.

Intellectual Property[13]

Bell Canada argued that providing previews consisting of excerpts of works is fair dealing for the purpose of research that does not infringe copyright.

Some commercial internet sites that sell downloads of works allow users to preview the works. A preview typically consists of an extract taken from the work, for example a 30-second extract of a musical track, streamed online and accessible to consumers. On October 18, 2007, the Copyright Board of Canada decided that royalties should be collected for these communications.

Charter of Rights – Freedom of conscience and religion[14]

Mandatory attendance to an “ethics and religion” class – Ethics and Religious Culture program became mandatory in elementary schools. Based on the experience of an older child, a family requested an exemption for the course because serious harm disruption caused by forced, premature contact with a series of beliefs that were mostly incompatible with those of the family, as well as the adverse effect on the religious faith of the members of this family. The school board refused to grant the exemption.


[5] The consulting firm she set up in 2011 was Liberty Consulting; previously she was employed by Tea Party-affiliated Liberty Central and earlier by the right-wing Heritage Foundation.

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Who can form a government?

Posted by Don McLenaghen on May 1, 2011

First the formation of a government….

After an election, the Governor General asks the leader of the party with the largest number of seats if he(/she?) believes they can secure the confidence of the parliament. Obviously in a majority situation it’s a given; however in a minority situation some negotiation may need to take place before a positive answer can be given. When the ‘major’ party believes it cannot gain this confidence, the GG will then give the ‘runner-ups’ an opportunity to meet the standard of confidence. The Confidence of the house is simply the majority of MP’s supporting government either directly in a non-confidence vote (ie. The majority reject this motion) or indirectly by the failure to pass the budget, however the recent government (not uniquely but more frequently) have declared other bill-votes to be votes of confidence in an attempt to browbeat the opposition so as to pass said legislation[1].

What is the difference between minority and coalition government?

A minority government is one where a party forms a government while not having a majority in parliament but maintaining the confidence of the majority of MPs in parliament. We have a long history of minority governments with the first occurring in 1873 and twice the ruling party changed without an election (1873: Conservative to Liberal and 1926: Liberal to Conservative). There are two kinds of minority rule – arrogant or cooperative.

The Arrogant minorities tend to have a short life span as we have seen with Arthur Meighen (who lasted about 6 months) or Diefenbaker (who lasted less than 5 months). This form attempts to implement their party platform irrespective of what the majority of parliament wishes, where they attempt to balance the opposition’s aversion for another election against aversion of the government’s legislation. In this way, Harper has proven quite adept; manipulating the electoral fears of the opposition so as to pass far more regressive conservative (neo-con?) legislation that one would think possible. Of course his domineering control of the conservative party, his totalitarian control of the ‘media message’ (helped by the absence of a pluralistic press) and his contempt for parliament (for which the government ultimately fell) and the democratic processes has helped him push his extremist agenda…sorry, for the rant however true it may be.

The Cooperative minority is one that acknowledges the opinion of the nation is mixed…that it likes policies from some most/all the parties and a responsible Prime Minister should attempt to push legislation that is supported by the majority of the population regardless of the originating party. The greatest of these PM’s probably was Lester Pearson during whose tenure as PM we saw the adoption of such great advances the current Canadian Flag, the creation of universal Health Care, Canadian Student Loans and Canada Pension Plan.

A Coalition government is one where two or more parties form a government which can maintain the confidence of the majority of MPs in parliament. Canada has never had a coalition government (although during WWI, some liberal members joined the Borden Government however, the Liberal party officially declined the offer of coalition). As of yet Finland has never had a majority government, Israel, India and Germany regularly rely on coalitions and currently England has a coalition government.

Recent claims by the Conservatives that the Liberals-NDP planned to form a coalition government WITH the Bloc is incorrect (a lie?). The coalition was comprised of the Liberals (who would get 18 ministries) and the NDP (who would get 6 ministries); the Bloc only offered support so that when the Lib-NDP leadership approached the GG they had a credible claim to have the confidence of the house. By this standard, the Bloc was in a coalition with Harper’s Conservatives government.

Do we elect our Prime Minister?

Yes and no…technically the Prime Minister is simply the leader of the house…the leader of the house is simple any individual who can command the confidence of the house. The office of Prime Minister is not defined in our Constitution; in fact the PM is only referenced indirectly as the person responsible for organising Constitutional Conferences (to amend the constitution). Unlike our American neighbours whose presidential powers are explicitly outlined, we rely on history and precedent to define the PM’s powers and role (there is also a  large degree the willingness or acquiescence of the public/parliament to accept changes for example the recent decision of to officially refer to government projects not as “the Canadian government” but as “the Harper government”…something I find very disturbing and wrong but something that seems to disappear for the headlines due to other Conservative scandals.

In fact all ministers and their portfolios of responsibility are defined by constitutional convention or the whim of the PM themselves. By convention, the leader of the party that holds the confidence of parliament is the PM; usually this is a member of the House of Commons but on occasion are not (John Abbot and Mackenzie Bowell were senators while PM). As well; on several occasions’ ministers of the crown were not elected members of government at all, although this is seen as extreme and against convention. On occasion, governments have had ministers of the crown who only later became MPs and often senators have been ministers with portfolio.

The PM serves “At her majesties pleasure”, meaning that unless a PM resigns, dies or is dismissed by the GG (or Queen), they remain PM even if they or their party loses an election. If a PM party loses a majority, they may still remain PM if they can command the confidence of the house. They may also be dismissed by the GG who will then ask the leader of the majority party (or the leader who can command the confidence of the house) to form the government.

Why are elections called?

An election is called by three mechanisms; firstly in our constitution a government cannot hold power longer than 5 years before an election MUST be called. As well as the Canada Elections Act (CEA) states that a general election is to take place on the third Monday in October, in the fourth calendar year after the previous poll, starting with October 19, 2009. The CEA however can be amended at any time so has little effective weight as our current election shows.

Under parliamentary rules, the prime minister can ask the Governor General to dissolve Parliament but the Governor General can refuse the request. This precedent was set in 1926 when William Lyon McKenzie asked the GG to dissolve the parliament but Lord Byng refused and gave the Conservatives a chance. When Paul Martin was in a minority situation after the 2004 election, Harper drafted an agreement between the opposition parties (including the Bloc) to approach the GG to form a government. In 2008, the shoe was on the other foot and the NDP and Liberals signed an agreement to form a coalition; this was avoided by the unusual act of prorogation of parliament.

For those who do not know, prorogation  is ending one session of parliament and starting a new one without calling an election traditionally done to allow MP’s to engage their constituency. In modern times, the length of the first ‘session’ of parliament is around 6 months to a year. Harper has the record for the both the shortest session, 17 days[2], and also the earliest call for Prorogation after an election… 51 days[3].

Lastly, an election is triggered whenever the sitting government loses the confidence of the parliament. As mentioned before, this can occur by a direct motion of non-confidence or the failure to pass a moneyed bill (such as the budget). Technically, any bill can be declared a confidence vote by the sitting government, but only a motion of non-confidence can be moved by the opposition to defeat a sitting government. It is interesting to note that a third motion may become an automatic non-confidence motion resulting in the defeat of the government; that is a motion of contempt of parliament. Technically that was the motion that caused the Harper government to dissolve parliament and request the GG to call for an election. In the future it may become constitution convention that to be found in contempt of parliament is to also be fired as government…as so it should be.


[2] I have excluded session a) 1873 which was only to call an election, b) only enacted the War Measures Act in 1914 c) the declaration of war on Germany in 1939, and d) 1930 for no good reason at all!

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