Category: Constitutional Page 46 of 71

Update on the Sage-grouse, the Separation of Powers and the Rule of (Ineffective Environmental) Law(s)

On September 24, 2013

In Administrative Law, Constitutional, Environmental, Protection of Species

PDF Version: Update on the Sage-grouse, the Separation of Powers and the Rule of (Ineffective Environmental) Law(s)

Cases Considered: Alberta Wilderness Association v Canada (Attorney General), 2013 FCA 190, Wildlands League and Federation of Ontario Naturalists v Ministry of Natural Resources (Ontario) et al., Court file no. 400/13, Sandy Pond Alliance to Protect Canadian Waters Inc. v Canada, Court file no. T-888-10

As most readers are probably already aware, last week the federal government announced that it will be issuing an emergency protection order (EPO) under the federal Species at Risk Act SC 2002, c 2 for the Greater Sage-grouse (for the background to this announcement, see my previous post here). Ostensibly, this is a ‘good news’ story about the separation of powers at work: The federal government delayed in taking the measures ecologically necessary and (ultimately) required by law to protect the Sage-grouse; the matter was brought before the courts, which concluded that the government’s actions were illegal; the government is now taking steps to bring itself into compliance.

A Provincial Proposal That Affects All Canadians

By Maureen Duffy

On September 19, 2013

In Constitutional

PDF Version: A Provincial Proposal That Affects All Canadians

Policy commented on: Proposed Quebec Charter of Values

As evidenced by the entries on our Faculty ABlawg, the recent announcement of the proposed “charter” of “values” in Quebec has led to a strong response across Canada. While the proposal itself may be limited to Quebec, it is clear that the impact is wider than that.

Professor Jennifer Koshan described the experience of teaching the famous, Reference re Secession of Quebec, [1998] 2 SCR 217, the day after the charter proposal was announced. I also teach Constitutional Law at the Faculty, and I found that her blog, in turn, provided an excellent teaching resource for discussion in the following class session. As this all occurred during the second week of law school for our first-year students, it was a powerful introduction, both to the ever-changing nature of Constitutional Law, and to the inconsistencies that can emerge under our constitutional system.

Professor Alice Woolley has added her commentary on the ethical implications of the proposal, which adds an innovative dimension to the discourse around this subject. As she points out, this proposal has repercussions well beyond the normative legal issues that have been discussed in much of the public discourse, and she adds an important layer to an interesting debate.

As I read all of the commentary about the proposal, I am reminded of my own personal experiences in Quebec.

R v Booyink: A Non-Stop Charter(ed) Flight to Protest in Canadian Airports?

By Ola Malik

On September 16, 2013

In Constitutional, Municipal Law

PDF Version: R v Booyink: A Non-Stop Charter(ed) Flight to Protest in Canadian Airports?

Case commented on: R v Booyink, 2013 ABPC 185

If the Canadian Centre for Bio-Ethical Reform (“CCBR”) hasn’t yet made an appearance in your town, city or neighbourhood, chances are they soon will. The CCBR is an educational, pro-life activist organization devoted to the stated objective of making Canada abortion-free. Its goals are to expose as many Canadians as possible to images of, and to engage directly in conversations about, abortion. The CCBR sees its messaging as educational in nature which might include any of the following strategies:

Imagine opening your mail box to find a gripping pro-life postcard showing “invisible” aborted children.
Then imagine walking down the street and seeing a poster of an abortion victim hanging from a pole in your neighbourhood.
Walking further, you see activists holding signs and engage in dialogue about abortion.
Then imagine driving through traffic and seeing a large truck with abortion imagery on its side and rear panels. (See Unmasking Choice – CAUTION – the CCBR may post graphic images)

The Quebec Secession Reference and the Proposed Charter of Quebec Values

By Jennifer Koshan

On September 12, 2013

In Constitutional

PDF Version: The Quebec Secession Reference and the Proposed Charter of Quebec Values

Case/Policy considered: Reference re Secession of Quebec, [1998] 2 SCR 217; Charter of Quebec Values

It’s as if Pauline Marois and her government knew we would be discussing the Quebec Secession Reference case in constitutional law this week when they finally released their plans for a Charter of Quebec Values on September 10. The Quebec Secession Reference case famously decided that Quebec did not have the unilateral right to secede from Canada under domestic or international law. It is also taught by many constitutional law professors as our first case, given its important pronouncements on sources of constitutional law and Canada’s constitutional history and values. The constitutional values – actually unwritten principles of constitutional law – that the Supreme Court found to be relevant in the context of Quebec secession were federalism, democracy, constitutionalism and the rule of law, and respect for minorities (at para 32). The Court’s elaboration on these principles takes on a new relevance in light of Quebec’s proposed Charter.

Of Killer Whales, Sage-grouse and the Battle Against (Madisonian) Tyranny

By Martin Olszynski

On August 21, 2013

In Administrative Law, Constitutional, Environmental

PDF version: Of Killer Whales, Sage-grouse and the Battle Against (Madisonian) Tyranny

Cases commented on: Alberta Wilderness Association v Canada (Attorney General), 2013 FCA 190, Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, Canada (Fisheries and Oceans) v David Suzuki Foundation, 2012 FCA 40.

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

James Madison, Federalist Papers No. 47

It is commonly understood that Canada’s Parliamentary system of democratic governance is an example of a “weak” separation of powers. In contrast to the United States, where generally speaking the Legislature (i.e. Congress) is responsible for passing laws, the Executive (i.e. the President) for implementing them and the Judiciary for interpreting them, in Canada — at least in “majority” situations — the Legislature (i.e. Parliament) is effectively (if not theoretically) controlled by the Executive (i.e. the Prime Minister and his Cabinet). The fairly predictable result is that laws passed by Parliament tend to give statutory delegates considerable discretion, which in turn allows them to implement government policy on a case-by-case basis without much restraint. In the environmental and natural resources context, most commentators regard this as a bad thing because it tends to favor short term economic and/or political gain over long term economic and environmental sustainability. But there is an emerging threat to the already weak separation of powers in Canada that should be of concern to all lawyers and academics, if not all Canadians. I refer to the Supreme Court of Canada’s (SCC) current approach to judicial review, and the standard of review in particular.