By: Colin Feasby

PDF Version: Restoring Balance? Bill 32, the Charter, and Fair Democratic Process

Bill Commented On: Bill 32, Restoring Balance in Alberta’s Workplaces Act, 2020, 2nd Sess, 30th Leg, Alberta, 2020

On July 7, the United Conservative Party (UCP) government introduced Bill 32, styled the Restoring Balance in Alberta’s Workplaces Act, 2020. Bill 32 makes a number of changes to Alberta’s labour relations statutes that are of questionable constitutionality. The focus of this post is only on the constitutional dimensions of Bill 32’s impact on the capacity of unions to participate in political activities. Bill 32 is interesting from the perspective of democracy jurisprudence because it appears to be a paradigmatic example of the use of legislative power to silence or impair the efficacy of political opponents. A constitutional challenge to Bill 32, which seems inevitable based on early statements by Alberta unions, promises to provide a forum for the consideration of whether political animus is relevant to constitutional analysis. This post does not express a view on the constitutionality of Bill 32; rather, it explores how courts should approach constitutional analysis of legislation that has an obvious negative effect on political opponents of the government.

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By: Colin Feasby

PDF Version: Taking Youth Seriously: Reconsidering the Constitutionality of the Voting Age

Case Commented On: Frank v Canada (Attorney General), 2019 SCC 1

[N]o one is born a good citizen; no nation is born a democracy. Rather, both are processes that continue to evolve over a lifetime. Young people must be included from birth. A society that cuts itself off from its youth severs its lifeline… (Kofi Annan, 1998)

Introduction

Earlier this year the Supreme Court of Canada issued its most important voting rights case in many years, Frank v Canada (Attorney General), 2019 SCC 1. Frank secured the right to vote for expatriate Canadians – a meaningful achievement – but the case is more significant for its reasoning and implications for the future of voting rights than it is for its result. The majority in Frank made it clear that the right to vote is qualified only by citizenship and that any limits on the right to vote must be justified under s 1 of the Charter. Frank has laid the foundation for a challenge to the last significant restriction on the right to vote, age. A challenge to the voting age – even just to lower it to 16 – promises to have a profound and beneficial impact on Canadian politics and political discourse. Continue reading →

By: Colin Feasby

PDF Version: City of Toronto v Ontario and Fixing the Problem with Section 3 of the Charter

Case Commented On: Toronto (City) v Ontario (Attorney General), 2018 ONCA 761

Introduction

Ontario Premier Doug Ford’s recent restructuring of Toronto City Council in the midst of an election and the ensuing court battle shone a light on a significant gap in the constitutional protection of democratic rights in Canada. Elections for municipal government – arguably the most important level of government in the daily lives of Canadians – need not be conducted in accordance with the fundamental democratic norms found by the Supreme Court of Canada to reside within section 3 of the Charter. The Ontario Court of Appeal in Toronto (City) v Ontario (Attorney General), 2018 ONCA 761 following numerous appellate authorities, succinctly stated the law: “Section 3 does not apply to municipal elections and has no bearing on the issues raised in this case” [citations omitted] (City of Toronto, at para. 12).

This blog post is predicated on what I believe are two uncontroversial normative claims. First, the Supreme Court of Canada’s Charter section 3 jurisprudence, though not without its critics, has made federal and provincial elections more fair and democratic. The corollary of this normative claim is that democratic processes outside the aegis of section 3 are vulnerable to those who would impose unfair or undemocratic rules. Second, democratic processes that are not protected by section 3 of the Charter – referenda, band council elections, municipal elections, school board elections – are important to Canadians; perhaps more important in some respects than provincial and federal elections. This blog post contends that the lack of constitutional protection for important democratic processes is an unnecessary defect in our constitutional arrangement and proposes a way that the Supreme Court of Canada can remedy this defect.

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