Do the Homeless Have a Constitutional Right to Camp in Edmonton?

Conacher v. Canada (Prime Minister): Taking the 2008 Federal Election to Court

On September 8, 2009 the legality of the 2008 federal election will be debated in the Federal Court, one year and one day after Stephen Harper advised the Governor General to call an election. Duff Conacher and Democracy Watch, a “citizens advocacy” group, contend that the Prime Minister broke not only his own fixed-date election law (section 56.1 of the Canada Elections Act), but also the Canadian Charter of Rights and Freedoms.[1]

The background to this case was outlined in an earlier article. In brief, Canadian law has left the decision to dissolve Parliament – that is, to call a general election – in the hands of the Governor General. In all but very rare circumstances, the Governor General is expected to follow the advice of a prime minister to dissolve Parliament. However, in 2006 Parliament passed Bill C-16, which added section 56.1 to the Canada Elections Act. This new section provided for elections at four-year intervals, beginning in October 2009, but also explicitly preserved the “power to dissolve Parliament at the Governor General’s discretion.”[2]

Under the new provision, it was generally understood that when a government lost a confidence vote in the House of Commons, the Governor General would still follow advice and grant dissolution. However, it was a surprise to some, including Conacher, to learn in September 2008 that without any vote of confidence, the Prime Minister still could advise dissolution and the Governor General would grant it. Questions immediately arose about the legality and the propriety of Prime Minister Harper’s advice on September 7, 2008. Conacher has pursued those questions in the Federal Court since last fall.

Mr. Conacher and Democracy Watch filed their written arguments with the Federal Court on April 9, 2009. The Government of Canada filed its response on May 11. The two sides offer sharply differing interpretations of election law and constitutional theory.

This article highlights the key points of disagreement between Conacher, the applicant, and the government as respondent. All of these disputes are now before the court. The court will have to consider the issues and decide at least some of them. Of course, there may be an appeal to a higher court. The outcome could prove to be an important milestone in Canadian constitutional doctrine.

DOES THE FEDERAL COURT HAVE JURISDICTION TO DECIDE THE CASE?

Duff Conacher and Democracy Watch are asking the Federal Court for:

(1) a declaration that “the holding of the election of October 14, 2008 contravened section 56.1 of theCanada Elections Act”;

(2) a declaration that the election timing “infringed the rights of all citizens of Canada to participate in fair elections pursuant to section 3” of the Charter; and

(3) a declaration that a constitutional convention prohibits an early election (according to the section 56.1 timetable) “unless there has been a vote of non-confidence by the House of Commons.”[3]

The Government of Canada responds to these arguments on their merits, and also argues that the Federal Court does not have jurisdiction to grant any of the remedies Conacher is seeking. The arguments about jurisdiction concern the Federal Court in particular and Canadian courts in general. The next two sections of this article outline arguments over the court’s ability to consider the case. Subsequent sections describe the issues the court will have to consider if it concludes that it has jurisdiction to decide them.

The Federal Courts Act and Prerogative Powers

The jurisdiction of the Federal Court is defined by statute. According to the Government of Canada, the Federal Court may only grant a declaration, as Conacher requests, if the Prime Minister’s advice to the Governor General was a “decision” under section 18.1 of the Federal Courts Act.[4] (Section 18.1 refers to “decision, order, act or proceeding.”[5])

The government’s interpretation of the Act is that advice (or a recommendation) is not a “decision.” Nor was Prime Minister Harper’s advice the exercise of a power under a federal statute, as section 2(1) of the Act requires. The government says instead that “[t]he decision is that of the Governor General,” and it was made under the royal prerogative rather than any statute.[6]

The royal prerogative, according to the government’s arguments, is beyond the Federal Court’s jurisdiction under statute.[7] It may indeed be outside the jurisdiction of any court: the government cites the 2000 Ontario Court of Appeal decision in Black v. Chrétien, where the royal prerogative to grant honours was found to be beyond judicial review.[8] (In that case, the court agreed with British precedent that also mentioned “the dissolution of Parliament” as a prerogative power that was not “susceptible to judicial review.”[9])

Justiciability

The Government of Canada makes a more fundamental argument about the court’s lack of jurisdiction to consider the case. It argues that the case revolves around “political considerations” that are not justiciable. Specifically, the government contends that the court must be sensitive to the separation of functions in the constitutional structure, and be careful to not “intrude inappropriately into the spheres reserved to the other branches.”[10]

An issue is not justiciable if the subject matter is not suitable for determination by the courts. If a court agrees that an issue before it is not justiciable, it must decline to decide the issue, leaving it for political resolution.[11]

The written arguments of the applicants, Conacher and Democracy Watch, did not anticipate the government’s arguments about jurisdiction. Conacher will have an opportunity in Federal Court to respond to the government’s position that their application should not be reviewed. If the court does not accept the argument that the entire case is beyond its jurisdiction, it will have to consider Conacher’s three arguments for a declaration about the 2008 election. These arguments will lead the court into an analysis of fundamental constitutional questions.

A NEW CONSTITUTIONAL CONVENTION?

Mr. Conacher and Democracy Watch ask the Federal Court to:

…declare that a constitutional convention has been established that prohibits a Prime Minister’s advising the Governor General to dissolve Parliament before the term mandated by section 56.1 of the Canada Elections Act unless there has been a vote of non-confidence by the House of Commons.[12]

The Government of Canada argues that there is no such constitutional convention, that existing conventions point to the opposite conclusion, and that in any event conventions are “political” and unenforceable by a court.[13]

Both parties refer to the same criteria for a constitutional convention, adopted by the Supreme Court of Canada:

We have to ask ourselves three questions: first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule? A single precedent with a good reason may be enough to establish the rule. A whole string of precedents without such a reason will be of no avail, unless it is perfectly certain that the persons concerned regarded them as bound by it.[14]

Although they argue from the same authority, Conacher and the government present starkly different explanations of how a convention may arise and be recognised by the courts.

Convention by Agreement?

Mr. Conacher and Democracy Watch argue that a new constitutional convention can be established quickly, as long as there is “explicit agreement of the relevant actors.”[15] They claim that this explicit agreement is clear from the parliamentary debate leading up to the enactment of the fixed election provision in Bill C-16:

[T]his legislation changed the constitutional convention that in the past permitted a Prime Minister to call a snap election without having suffered defeat in the House of Commons. The discussion and agreement of the politicians on how [Bill] C-16 is to apply is what established the new constitutional convention.[16]

In the records of parliamentary debate, Conacher finds agreement among federal party leaders, who, he says, are the “relevant actors” in establishing this constitutional convention, and who “did not dissent” from the government’s account of its “constitutional implications.” [17] Conacher’s written arguments provide quotes from the 2006 parliamentary debates on the fixed election provision to illustrate agreement on its purpose and effect.[18]

The Government of Canada does not dispute what parliamentarians intended to accomplish, or why they thought a change was a good idea. Instead, it responds that the “relevant political actors” in respect of the alleged convention are not party leaders or participants in parliamentary debate, but the Prime Minister and the Governor General, in their meeting on September 7, 2008.[19] Neither of them, the government points out, acted as though a new convention was “obligatory or binding upon them.”[20]

It would be necessary … for there to be statements by one or more Prime Ministers supporting the existence of this alleged new restriction…. The fact that the Governor General was prepared to follow the advice indicates that neither the Prime Minister nor the Governor General believe that there was any convention requiring the government to be defeated in the House before dissolution could be sought or granted.[21]

Besides, according to the Government, a loss of confidence in the government on the part of the House of Commons is “a political question to be determined initially by the Prime Minister.”[22] According to this view, Harper was entitled to conclude that his government had lost the confidence of the House without waiting for the formality of a non-confidence vote.

Precedents for a Convention?

In their factum, Conacher and Democracy Watch rely on authority that: “A single precedent with a good reason may be enough to establish the rule.”[23] Citing the “explicit agreement” of political actors on the reason for Bill C-16, they say the new constitutional convention, as of the enactment of the fixed election provision, is that a prime minister can advise the Governor General to dissolve Parliament only after a vote of non-confidence in the House of Commons.[24]

The Government of Canada, referring to the Governor General’s acceptance of the Prime Minister’s request for dissolution in 2008, replies that the sole precedent is cold comfort to Conacher:

There are no precedents to support nor evidence to satisfy the requirements to demonstrate the existence of an alleged new convention. In fact, the only precedent is to the contrary, since the Prime Minister sought and obtained dissolution of Parliament on September 7, 2008 without having lost a vote of non-confidence in the House of Commons.[25]

The government concludes that evidence of a new convention would need to be in the form of “statements by one or more Prime Ministers supporting the existence of the alleged new restriction” on prime ministerial discretion.[26]

Mr. Conacher argues that the new precedent for federal elections is reinforced by precedents in provinces with fixed- date election laws.

The first elections in both British Columbia and Ontario were held on the dates mandated by the Provincial Elections Acts. The examples of British Columbia and Ontario provide precedents that established the convention that restricting the ability of a leader of a parliamentary government to call elections can be accompanied by passing fixed election date legislation with the understanding that elections can be held on days other than those specified in the legislation only after there has been a vote of non-confidence.[27]

The Government of Canada suggests that Conacher’s own witness, Peter Russell, took a contrary view when he said that the convention immediately prior to the enactment of section 56.1 “allowed the Prime Minister to advise the Governor General to dissolve Parliament without a vote of non- confidence.”[28] (This response by the government may misconstrue Conacher’s argument: there does not seem to be any allegation that provincial practices created a new federal convention on their own, only that they bolster a new convention established by Parliament in 2006.) The government also points out that the fixed-date election laws in B.C. and Ontario explicitly maintain the power of the Lieutenant Governor to dissolve the legislature, much as section 56.1 does with the power of the Governor General to dissolve Parliament.[29]

These questions – who must agree and what is a precedent – go to the heart of the “unwritten constitution” which governs much of the work of Parliament. If the court decides to consider them – over the objections of the government, which insists they are non-justiciable and outside its jurisdiction – it will be venturing into relatively uncharted territory.

Enforceability of a Convention?

Mr. Conacher and Democracy Watch ask the Federal Court for three declarations, as described above. Two of them – discussed below – would declare what the Elections Act and the written Constitution mean. They also ask for a declaration of a constitutional convention – specifically, the alleged new convention that a vote of confidence must precede a request for dissolution and a general election.

The Government of Canada argues that no such declaration is available to the applicants:

The realm of constitutional convention is a political one that is not enforceable by the Courts. Sanction for any alleged violation of a constitutional convention lies in the political, not the legal, domain, and the Courts have recognized that legal sanction in this area is not justiciable.[30]

The government submits that whatever the applicable constitutional convention is, no convention isenforceable by the courts.

Constitutional conventions are non-legal rules or norms that prescribe limits on the manner in which legal powers of public office holders are to be exercised. Conventions are non-legal in the sense that they are not enforced by the courts and there is no legal sanction for their breach.[31]

Peter Hogg, a constitutional scholar cited by the government, calls conventions “rules of the constitution that are not enforced by the law courts … [a]lthough … the existence of a convention has occasionally been recognized by the courts.”[32] Peter Russell apparently conceded this point under cross-examination, stating that if a convention is violated “the court does not give a legal remedy or a legal penalty.”[33]

In the Patriation Reference,[34] the Supreme Court of Canada recognized a long-standing constitutional convention. However, the Court “held that there was no legal obligation” to abide by the convention; they articulated the convention, but did not use the power of the Court to require anyone to follow it.[35]Specifically, the Court’s statement about a constitutional convention did not come in the form of a declaration. Here, the dispute between Conacher and the government appears to centre on the question of whether adeclaration amounts to enforcement, or a remedy.

Mr. Conacher and Democracy Watch appear to recognise that they are arguing a difficult point in asking for a declaration of a convention. They return to the point that Parliament legislated the fixed election date: “Constitutional conventions that have been incorporated into legislation are enforceable by the courts as ordinary statutes, and can be challenged as being inconsistent with the Canadian Charter of Rights and Freedoms.”[36]

They cite Osborne v. Canada (Treasury Board), where the Supreme Court determined that a provision of thePublic Service Employment Act, which legislated a long-standing convention against public servants engaging in work for political parties, could be subject to Charter scrutiny.[37] The Court found:

[W]hile conventions form part of the Constitution of this country in the broader political sense, i.e., the democratic principles underlying our political system and the elements which constitute the relationships between the various levels and organs of government, they are not enforceable in a court of law unless they are incorporated into legislation.[38]

However, Conacher is asking the court to recognize a new constitutional convention, which allegedly emerged from debate on the new section 56.1 of the Elections Act. Apparently, if the new convention pre-dated the enactment of the new section, it only dated back to some point during debate on that section. The government insists that there has been “no enactment of a constitutional convention,” so there “is no legal basis … on which the alleged new constitutional convention can be enforced.”[39]

CHARTER, SECTION 3

Duff Conacher and Democracy Watch ask for a declaration that the election of October 14, 2008 violated section 3 of the Charter. They say that this declaration would require future prime ministers to abide by the fixed-date election provision. They argue that this declaration is “essential for the future of democracy in Canada.”[40] The Government of Canada, on the other hand, warns the court that a declaration under the Charter “would mean that every federal and provincial election since April 17, 1982 [when the Charter came into force] has infringed the section 3 rights of the electorate.”[41]

Section 3 of the Canadian Charter of Rights and Freedoms states:

Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.[42]

The courts have considered the purpose of this section, and applied it to various electoral rules and practices. Conacher quotes the Supreme Court’s articulation of “electoral fairness” in the 2003 case of Figueroa v. Canada (Attorney General):

The principle of electoral fairness flows directly from a principle entrenched in the Constitution: that of the political equality of citizens…. Elections are fair and equitable only if all citizens are reasonably informed of all the possible choices and if parties and candidates are given a reasonable opportunity to present their positions…. It is also necessary that the differential treatment have an adverse impact upon the applicant’s right to play a meaningful role in the electoral process.[43]

The next year, in Harper v. Canada (Attorney General), the Supreme Court referred to the Canadian electoral system as an “egalitarian model,” under which “Parliament must balance the rights and privileges of the participants in the electoral process: candidates, political parties, third parties and voters.”[44]

Mr. Conacher and the Government of Canada seem to be in general agreement about the principles that govern the application of the Charter to elections. The government says that under section 3 of the Charter, “A fair election is one that provides voters with the opportunity to become ‘reasonably informed of all possible choices’ so that they can meaningfully participate in the electoral debate and cast a reasonably informed vote.”[45]

However, Conacher and the government part company on the application of the Charter to Prime Minister Harper’s advice to the Governor General on September 7, 2008. The government also questions Conacher’s evidence and his legal status to bring a claim under the Charter.

The Fairness of Snap Elections

Mr. Conacher and Democracy Watch contend that a prime minister’s ability to call a “snap election” grants the governing party “a distinct advantage over opposition parties,” and that eliminating this “structural advantage” in the name of electoral fairness is “a key reason why most parliamentary democracies have established fixed dates for elections.”[46]

They say that this “distinct advantage” violates Canadians’ right to participate meaningfully in a fair election, as protected by section 3 of the Charter:

It is submitted that allowing the Prime Minister unfettered discretion as to when to call an election differentiates between the political parties in a way that does have an adverse impact on the ability of all citizens who support political parties other than that of the Prime Minister to play a meaningful role in the electoral process.[47]

Referring to the 2004 Harper precedent, Conacher argues that the fixed-election legislation achieved a balance of “the rights and privileges of the participants in the electoral process.”[48] Accordingly, he contends that it was “particularly unfair for a Prime Minister to call a snap election after reinforcing a promise not to do so by introducing legislation that was said to ensure that the promise would be kept.”[49]

The Government of Canada offers historical evidence to dispute that a prime minister’s power to request dissolution confers a built-in electoral advantage on the governing party.[50] It adds that media reports and statements from politicians in the summer of 2008 made it “clear that there was going to be an election called for the Fall.”[51] In any case, the government states that the minimum 36-day election period eliminates any advantage; it observes that the applicants are not challenging the election period as too short to “reasonably inform the electorate.”[52]

In particular, the government argues that there is no evidence that Conacher’s Charter rights as a voter were infringed by the early election call. To Democracy Watch’s claim that its rights were infringed, the government replies that “there is no evidence that it could not perform any of its normal functions during the election period.”[53] The Government of Canada concludes that the dissolution request was “not in any way constitutionally unfair”:

The Applicants have not demonstrated that they did not have an opportunity to be reasonably informed of the parties and the candidates during the 37 day period of the election nor have they shown that they were denied a right to play a meaningful role in the electoral process.[54]

Do Conacher and Democracy Watch Have Standing?

The Government of Canada questions whether an advocacy organization can claim democratic rights: “Democracy Watch does not have standing to bring a section 3 claim as it is not a citizen capable of exercising the right to vote, and there is no evidence from the individual Applicant, Duff Conacher, to support the allegation of a breach.”[55] The government notes that the “general rule is that the provisions of the Charter may only be invoked by those who enjoy its protection.”[56] Democracy Watch should not be granted standing to bring a section 3 claim because “a corporation … does not possess the rights protected by section 3.”[57] They claim it does not represent any community’s voting interest and “cannot claim violation of a Charter right of third parties.”[58]

The government also submits that this is “not an appropriate case” for Democracy Watch to be granted public interest standing before the court.[59] It sets out the test for public interest standing:

A court may exercise its discretion to grant public interest standing where the claimant establishes: (1) that the action raises a serious legal question; (2) that the plaintiff has a genuine interest in the resolution of the question; and (3) that there is no other reasonable and effective manner in which the question may be brought to the court.[60]

The federal government argues there is “no serious issue to be tried” because Conacher, the only applicant with a right to vote, does not raise any evidence to show his right was infringed. [61] Even if the first two requirements were met, the government claims that Democracy Watch cannot meet the third requirement: “There are any number of other litigants, such as opposition parties and candidates who would have been affected in a direct way by the dissolution of Parliament and calling of an election who would be better suited to bring a [section 3 Charter] challenge.”[62]

Does the Charter Apply to the Governor General?

The Government of Canada takes the position that a declaration limiting prime ministers’ ability to advise the Governor General would, in substance, be a limitation of the Governor General’s constitutional prerogatives. It applies this argument to the Charter issue: “The Governor General’s power to dissolve Parliament is a core constitutional power that is immune from Charter review on the basis that one part of the Constitution cannot abrogate another.” [63] The government claims that if the court were to accept the applicants’ arguments, the Governor General would be forced to “wait until some Charter appropriate time” to dissolve Parliament and call an election.[64] According to the government, under accepted constitutional doctrine the Charter does not give a court the power to “interfere with the relationship between the Governor General and the Prime Minister.”[65]

INTERPRETATION OF THE ELECTIONS ACT

In 2006, Bill C-16 added a new section 56.1 to the Canada Elections Act:

(1) Nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General’s discretion.

(2) Subject to subsection (1), each general election must be held on the third Monday in October in the fourth calendar year following polling day for the last general election, with the first general election after this section comes into force being held on Monday, October 19, 2009.[66]

Mr. Conacher and Democracy Watch argue that Prime Minister Harper recommended the 2008 federal election in clear defiance of section 56.1(2). Although the language of section 56.1(1) preserves the Governor General’s power to dissolve Parliament, they say that it does not leave intact a prime minister’s power toadvise dissolution. The Government of Canada responds that section 56.1 places no legal limit on a prime minister’s ability to advise the Governor General, and that any such limit would require a constitutional amendment.

Statutory Interpretation and the Interpretation Act Mr. Conacher and Democracy Watch submit that the proper interpretation of section 56.1 prohibits a prime minister from “requesting early dissolution of Parliament unless there was a vote of non-confidence.”[67]They cite the Supreme Court of Canada, which in 1998 endorsed the following approach to statutory interpretation: “[T]he words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”[68]

Conacher also points to section 12 of the Interpretation Act, which applies to all federal statutes: “Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.”[69]

The government responds that section 56.1 “does not explicitly or implicitly impose any legal restriction on the Prime Minister’s ability to advise the Governor General” to dissolve Parliament and call an election.[70] In fact, the legislation explicitly states that Governor General’s powers are unaffected, “including the power to dissolve Parliament at the Governor General’s discretion.”[71]

Anticipating the government’s argument, Conacher’s written arguments insist that Parliament’s “sole object” in enacting section 56.1 was to prohibit prime ministers from calling “snap elections”:

If Prime Minister Harper’s request for dissolution is not declared to be illegal, section 56.1 of the Canada Elections Act will be rendered absurd and meaningless, as will the corresponding fixed-election date sections of the election acts of the provinces that have enacted such legislation.[72]

In a 2005 case cited by Conacher, the Supreme Court rejected a proposed interpretation of a section of theImmigration and Refugee Protection Act which the Court deemed would render it “absurd, illogical or redundant.”[73]

The Government of Canada claims in response that the purpose of section 56.1 is not to prohibit “snap elections” but “to create a ‘statutory expectation’ of a certain date for election, without making it legally enforceable.”[74] The government’s written arguments do not explain what a “statutory expectation” is, or give any other examples of unenforceable statutory expectations.

The Constitution as a Guide to Statutory Interpretation

As described above, Conacher and Democracy Watch ask the Federal Court to recognize a new constitutional convention which would prohibit a prime minister from advising the Governor General to dissolve Parliamentunless there had been a vote of non-confidence in the House of Commons. They also ask the court to use this new convention to interpret section 56.1.[75] In other words, if the constitutional convention itself is not enforceable, it may nonetheless be used to guide the court in interpreting section 56.1 as applying to a prime minister’s advice on dissolving Parliament.

Conacher also argues that “the Charter value of fairness in elections implies that section 56.1 of the Canada Elections Act should be interpreted to preclude snap elections.”[76] In this context, Conacher and Democracy Watch cite a 2002 Supreme Court decision: “[T]o the extent this Court has recognized a ‘Charter values’ interpretive principle, such principle can only receive application in circumstances of genuine ambiguity, i.e., where a statutory provision is subject to differing, but equally plausible, interpretations.”[77]

The Government of Canada responds that there is no ambiguity in section 56.1, so there is no basis for consulting other sources to resolve an ambiguity.[78] The government argues that the applicants’ interpretation of section 56.1 would limit the ability of a prime minister to advise the Governor General, and therefore it would unconstitutionally restrict the powers of the Governor General:

The power to dissolve Parliament is part of the Office of the Governor General of Canada…. Amendments to the Office of the Governor General of Canada … require amendments authorized by section 41 of the Constitution Act, 1982…. For the same reason, an attempt to legally limit the ability of the Prime Minister to advise the Governor General to dissolve Parliament risks the need for a constitutional amendment under section 41. By convention, the Governor General can only exercise the power of dissolution on the advice of the Prime Minister. Therefore, limiting the ability of the Prime Minister to request dissolution would likely constitute a fetter on the Office of the Governor General.[79]

Section 41 of the Constitution Act, 1982 refers to “the office of … the Governor General….” The powers the Governor General exercises on the advice of the prime minister are very extensive. The government’s written arguments appear to say that none of these powers, which are effectively exercised at the prime minister’s personal discretion, can be altered by an ordinary statute, passed by Parliament. Parliament, therefore, would apparently have its legislative power drastically curtailed if the courts accepted the government’s interpretation of the Constitution. The government will have the opportunity to elaborate on its position in the Federal Court.

CONCLUSION

A Federal Court judge will have reviewed these written arguments prior to the hearing on September 8, 2009. Conacher and Democracy Watch will have an opportunity to respond to the arguments presented by the Government of Canada in response to their application, and the judge will be able to question lawyers for both sides on their arguments. The court’s decision will be rendered some weeks or months later.

Further Reading

Anna-May Choles, “Bid to Challenge VANOC over No Female Ski- jumping Event Fails” Centre for Constitutional Studies (20 July 2009).

Anna-May Choles, “Equality Challenge for Vancouver Olympics over Ski Jumping” Centre for Constitutional Studies (11 May 2009).

Natasha Dube, “Olympics and Equality Rights: Is VANOC Above the Law?” Centre for Constitutional Studies(16 June 2008).

Geoff Dembicki, Fears“ of APEC-style Clash in 2010” TheTyee.ca (16 February 2009).

[1] Chris Younker is a student in the Faculty of Law, University of Alberta. The author’s views do not necessarily reflect those of the Management Board and staff of the Centre for Constitutional Studies. [2] “Organizing Committee” Vancouver 2010. [3] Rod Mickleburgh, “VANOC curbing free speech, group says” The Globe and Mail (3 July 2009); News release, “Free speech faces Olympics-size threat, says BCCLA”British Columbia Civil Liberties Association(3 July 2009). [4] Ibid. [5] Caroline Alphonso, “VANOC seeks access to border searches” The Globe and Mail (7 July 2009). [6] Mickleburgh, supra note 2. [7] Charlie Smith, “Woodsworth wants IOC to abide by charter, but what about RCMP?” Georgia Straight (21 July 2009). [8] [1993] 2 S.C.R. 1084. [9] Daphne Bramham, “Canadians shouldn’t accept repressive Olympic security” Vancouver Sun (7 July 2009). [10] Ibid. [11] “Free speech at risk during 2010 Olympics, group says” CBC.ca (4 July 2009). [12] Mickleburgh, supra note 2. [13] Supra note 10. [14] Supra note 8.

Alberta v. Hutterian Brethren of Wilson Colony (2009)

The Supreme Court of Canada’s decision in Alberta v. Hutterian Brethren of Wilson Colony[1] explores the limits on freedom of religion. The catalyst of this suit was a regulation adopted by Alberta in 2003 which requires all drivers’ licenses, without exception, to include a photo of the licensee. Alberta introduced photo driver’s licenses in 1974, but until 2003 it was possible to apply to the Registrar for a discretionary exemption from the photo requirement. The members of Wilson Colony were granted such an exemption on the grounds that their religious beliefs included a prohibition on having their photographs taken.

The new 2003 regulation required the Wilson Colony Hutterites to choose between holding a valid driver’s license or following their sincerely held religious convictions. The members of Wilson Colony claimed that the photo requirement was an unjustifiable infringement of their freedom of religion. Both the trial court and court of appeal agreed and deemed the regulation unconstitutional.[2]

A narrow majority of the Supreme Court disagreed, and ruled that the new regulation is in fact constitutional. Hutterites who want to drive must now have their photographs taken.

Rights and Freedoms are Not Absolute

The Wilson Colony case is not about whether the Hutterites’ freedom of religion was infringed. All parties, at all levels of court, acknowledged that the Alberta regulation “interferes with the claimant’s ability to act in accordance with his or her religious beliefs in a manner that is more than trivial or substantial” (emphasis added), which is the established test for an infringement of freedom of religion as protected by section 2(a) of the Charter.[3]

The case is more essentially an examination of section 1 of the Charter, which reads:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

In other words, Wilson Colony is about the justifiable limits on constitutional rights and freedoms. Justifying a limit that has been challenged as unconstitutional first requires that it be “prescribed by law.” At the Alberta Court of Appeal there was some concern about “overextension of regulatory authority” and the fact that regulations are adopted “without legislative debate.”[4] The Supreme Court’s response was that “hostility to the regulation-making process is out of step with this Court’s jurisprudence and with the realities of the modern regulatory state.” The Court said that regulations “are the life blood of the administrative state and do not imperil the rule of law.” Therefore the impugned regulation is “prescribed by law.”[5] The second step in justifying a challenged law is that it must be “demonstrably justified in a free and democratic society.” This justification is achieved by demonstrating “proportionality.” The concept of proportionality belongs to a well-established international legal and philosophical tradition.[6] In Canadian jurisprudence, analysis of proportionality in law is guided by the test articulated by former Chief Justice Dickson in R. v. Oakes.[7]

The Oakes test is divided into two broad inquires. The first is whether the impugned law has a sufficiently important objective to justify limiting a Charter right. The second is the proportionality inquiry. Proportionality in the impugned law is determined through three sub-questions:

(1) Is there a rational connection between the impugned law and the law’s objective? (2) Is the law minimally impairing of the Charter right? And, (3) balancing the positive and negative effects of the law, is there overall proportionality?

The Majority’s Application of the Oakes Test

The majority decision was written by Chief Justice McLachlin, joined by Justices Binnie, Deschamps and Rothstein. Addressing the first question of the Oakes test, whether the purpose of the regulation is pressing and substantial, they conclude: “Maintaining the integrity of the driver’s licensing system in a way that minimizes the risk of identity theft is clearly a goal of pressing and substantial importance, capable of justifying limitations on rights.”[8] Thus the majority is satisfied that the first hurdle of the Oakes test has been crossed.

The first question in the proportionality inquiry is whether the new regulation is rationally connected to the pressing goal of preventing identity theft. The majority stresses that the government does not need to prove that the new regulation will certainly achieve its goal. Instead, the government only has to show that it is “reasonable to suppose” that the regulation is likely to achieve its goal.[9] The majority was satisfied that the government showed that the regulation is not merely an arbitrary limitation on rights, but is rationally related to the pressing goal.[10]

The second proportionality question is whether the new regulation minimally impairs freedom of religion. The regulation must be “reasonably tailored” but need not meet a standard of “unrealistic exacting precision.” Furthermore, the Court deems it appropriate to give a measure of deference to legislative and regulatory bodies when it comes to crafting laws that respond to complex social issues.[11]

In its effort to achieve its goal while minimizing the impact on Wilson Colony members, the government proposed measures that would insulate the colony members from direct contact with the photographic images attached to their driver’s licenses. These proposals were rejected by the colony, which in turn proposed a photo-less license marked as not to be used for identification purposes. The majority accepted the government’s argument that the proposal put forward by the colony would not work towards achieving the goal of preventing identity theft. Thus, the regulation in its current form was accepted as minimally impairing.[12]

The final question in the proportionality analysis is whether the effects of the regulation are proportionate. It is at this stage that the majority decision is most clearly at odds with the dissenting reasons of Justices Abella, LeBel and Fish. The majority claims that it is only at this final step that a court should take full account of the “severity of the deleterious effects of a measure on individuals or groups.” Prior to this step, only the law’s purpose should be examined.[13]

Turning first to the salutary (or useful) effects, the majority says that it is not necessary to “await proof positive” that the beneficial effects will be realized. Rather, reason and evidence that a public good will be achieved is enough. The beneficial effects that are reasonably expected to come out of the regulation are threefold: (1) enhancing the security of the driver’s licensing scheme, (2) assisting in roadside safety and identification, and (3) eventually harmonizing Alberta’s licensing scheme with those in other jurisdictions.[14]

Consideration of the deleterious (or harmful) effects involves the regulation’s limitation on freedom. The essential question posed by the majority is “whether the limit leaves the adherent with a meaningful choice to follow his or her beliefs and practices.”[15] Certain legislation will impose some burdens of monetary cost and inconvenience, but “a limit on a right that exacts a cost but nevertheless leaves the adherent with a meaningful choice” is acceptable. The Wilson Colony Hutterites have options, says the majority. They can hire a driver or find other alternative transportation. The regulation may impose a financial cost and inconvenience but it does not take away all meaningful choice that allows them to remain faithful to their religion. Therefore in the final balancing of effects, the majority finds that the limitation of the colony members’ freedom of religion is proportionate.[16]

Dissenting Interpretations of the Oakes Test

Three dissenting justices wrote two different sets of reason, but all three agree that the majority went astray in its proportionality analysis by treating the steps as “watertight compartments.”[17] While the majority maintains that a contextual analysis is only appropriate in the final step, the dissenting justices hold that “context should be considered at the outset of the analysis in order to determine the scope of deference of courts to government.”[18] In the words of Justice LeBel, “there should not be a sharp distinction between the steps;”[19] the analysis should be “holistic.”[20]

Justice Abella agrees with the majority that the goal of the regulation is pressing and substantial and that there is a rational connection between the regulation and the goal.[21] Her disagreement with the majority begins at the minimal impairment stage of the analysis. Essentially, Abella contends that the government has not shown why the significantly less intrusive measure proposed by the Wilson Colony members was not chosen. Abella says that there is no evidence that a driver’s license marked as not to be used for ID purposes would significantly interfere with the government’s objective.[22]

The brunt of Abella’s criticism of the majority decision comes in the final stage where positive and negative effects of the regulation are balanced. Contrary to the majority’s contention that “proof positive” of the regulation’s positive effects are unnecessary, Abella cites Supreme Court precedent to argue that only salutary effects that “actually result” must be weighed in the balance.[23] She finds that “the government has not discharged its evidentiary burden or demonstrated that the salutary effects in these circumstances are anything more than a web of speculation.”[24]

Abella goes on to question the effectiveness of the facial recognition technology, maintaining that because the system is not “fool-proof” a few hundred photo-less driver’s license will not have a noticeable impact on the system’s effectiveness.[25] Furthermore, “700,000 Albertans are without drivers licenses.”[26] Therefore, the salutary effects of adding 250 Hutterites to the system are “slight and largely hypothetical.”[27]

The deleterious effects, according to Abella, are more severe. The regulation “threatened the autonomous ability of the Hutterites to maintain their communal way of life.” Self- sufficiency is an essential element of the Hutterite faith, and thus having to hire an outside driver is much more than an inconvenience or financial cost.[28] In fact, the effect on the Wilson Colony is a significant sacrifice. And, “when significant sacrifices have to be made to practice one’s religion in the face of a state imposed burden, the choice to practice one’s religion is no longer uncoerced.”[29] Abella says that “the mandatory photos requirement is a form of indirect coercion that places the Wilson Colony members in the untenable position of having to choose between compliance with their religious beliefs or giving up the self-sufficiency of their community.”[30] The result is a disproportionate limitation that achieves minimal beneficial effects and significant negative effect.[31]

Jim Young (July 31, 2009) [1] Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 (“Wilson Colony”). [2] Hutterian Brethern of Wilson Colony v. Alberta, Hutterian Brethren of Wilson Colony v. Alberta, 2007 ABCA 160., 2006 ABQB 338; [3] Wilson Colony at para. 32. [4] Ibid. at para. 40; see also 2007 ABCA 160 at para 24. [5] Wilson Colony at para. 40. [6] Ibid. at para. 184. [7] R. v. Oakes, [1986] 1 S.C.R. 103. [8] Wilson Colony at para. 42. [9] Ibid at para. 48. [10] Ibid. at paras. 48-52. [11] Ibid. at para. 37. [12] Ibid. at paras. 53-71. [13] Ibid. at para. 76. [14] Ibid. at paras. 79-85. [15] Ibid. at para. 88. [16] Ibid. at para. 86-103. [17] Ibid. at para. 134. [18] Ibid. at para. 186. [19] Ibid. at para. 191. [20] Ibid. at para. 195. [21] Ibid. at paras. 140 & 142 [22] Ibid. at paras. 143-148. [23] Ibid. at para. 150. [24] Ibid. at para. 154. [25] Ibid. at paras. 155-156. [26] Ibid. at para. 158. [27] Ibid. at para. 162. [28] Ibid. at para. 164-167. [29] Ibid. at para. 167. [30] Ibid. at para. 170. [31] Ibid. at paras. 174-176. Refusal to Perform Same-Sex Marriage Costs Sask. Marriage Commissioner $2500

A Saskatchewan marriage commissioner who refused to perform a same-sex marriage ceremony has lost his appeal of a Human Rights Tribunal decision which ordered him to pay $2500 to one of the grooms. Saskatchewan’s Court of Queen’s Bench ruled that, in his capacity as a public official, Orville Nichol’s religious beliefs do not matter.[1]

Mr. Nichols, a member of First Baptist Church, has been a marriage commissioner since his retirement from the Regina Police Service in 1983.[2] In April 2005, M.J. contacted Nichols to ask that he perform a marriage ceremony the next month. Nichols replied that he was available, but upon learning M.J. intended to marry another man, Nichols said he could not perform the ceremony because of his religious beliefs.[3]

M.J. and his partner were married on May 5, 2005 by a different Saskatchewan marriage commissioner.[4]

The Saskatchewan Human Rights Tribunal ruled Nichol’s refusal to perform the same-sex marriage on religious grounds violated section 12 of The Saskatchewan Human Rights Code, which prohibits denying public services on grounds such as sexual orientation.[5]

Mr. Nichols appealed this decision before the Court of Queen’s Bench, arguing that his “sincere and genuine” religious beliefs should be accommodated; he was entitled to decline performance of a same-sex marriage on religious grounds; and that his right to freedom of religion, protected by the Saskatchewan Human Rights Code and the Canadian Charter of Rights and Freedoms, was violated by compelling him to perform a same-sex marriage.[6]

Mr. Nichols contended that “service seekers cannot demand service from a particular service provider when the provision of that service is contrary to the core of his religious beliefs and those services are readily available from another service provider.”[7] The court ruled that Nichol’s religious beliefs could not be accommodated since he was a government actor providing a public service, as opposed to a private citizen whose beliefs could be accommodated.[8]

Relying on the Supreme Court of Canada’s ruling in the Same- Sex Marriage Reference, Nichols argued that his Charter right to freedom of religion protected him from “compulsory celebration of same-sex marriages.”[9] The Supreme Court stated:

[T]he guarantee of religious freedom in s. 2(a) of the Charter is broad enough to protect religious officials from being compelled by the state to perform civil or religious same‑sex marriages that are contrary to their religious beliefs.[10]

The Court of Queen’s Bench found that the Supreme Court’s statement applied only to religious officials, and not government officials performing a civil marriage.[11]

Mr. Nichols further argued that by applying the Oakes test under section 1 of theCharter , the infringement of his right to freedom of religion could not be justified as reasonable in a free and democratic society.[12] The court concluded, however, that when Nichols acted as a marriage commissioner “his freedom of religion ought to be limited to exclude discrimination on the basis of sexual orientation.”[13]

Mr. Nichols had previously lost a separate Human Rights Tribunal decision in which he alleged his religious freedoms would be violated if he was forced to perform same-sex marriages.[14]

The Court of Queen’s Bench decision maintains the status quo where marriage commissioners may not opt-out of performing same-sex marriages because of their religious beliefs. On July 3, 2009, the Saskatchewan government referred draft legislation to the provincial Court of Appeal which would allow marriage commissioners to opt-out on religious grounds.[15] The Court of Appeal has yet to give its advisory opinion as to whether the legislation violates the Charter. Further Reading

Ronalda Murphy, “Same-Sex Marriage and the Same Old Constitution” Constitutional Forum.

Dan Shouldice, “Saskatchewan Refers Same-Sex Marriage Question to Courts” Centre for Constitutional Studies (3 July 2009).

[1] Nichols v. M.J., 2009 SKQB 299 at para. 76. [2] Ibid. at paras. 8-10. [3] Ibid. at para. 12. [4] Ibid. at para. 13. [5] S.S. 1979, c. S-24.1, s. 12; Supra note 1 at para. 2. [6] Supra note 1 at para. 7. [7] Ibid. at para. 34. [8] Ibid. at paras. 25-26. [9] Ibid. at para. 28. [10] Reference re Same-Sex Marriage, 2004 SCC 79 at para. 60. [11] Supra note 1 at para. 29. [12] Ibid. at para. 61. [13] Ibid. at para. 73. [14] “Commissioner who refused to marry same-sex couple loses appeal” cbc.ca (23 July 2009). [15] Dan Shouldice, “Saskatchewan Refers Same-Sex Marriage Question to Courts” Centre for Constitutional Studies (3 July 2009).

Strange Bedfellows: The Misleading Debate over Third Party Election Financing in Alberta

Is a government backbencher’s third party election finance bill an attempt by the Progressive Conservative (PC) government to silence Albertans by infringing their right to free expression? Or is it a private member’s humble legislative proposal to ensure that all organizations play by the same rules that registered political parties play by? Bill 205: The Proposed Legislation

Bill 205, the Election Finances and Contributions Disclosure (Third Party Advertising) Amendment Act, 2009,[1] would apply to third parties, such as trade unions or corporations, which engage in political advertising during election periods. Introduced by government MLA Rob Anderson, the bill would force third parties that intend to spend $1000 or more on election advertising to register with Alberta’s Chief Electoral Officer.[2]

Registered third parties will be required to open a third party advertising bank account and all contributions over $375 will have to be declared, as is already the case with registered provincial political parties.[3]Significantly, Bill 205 limits individual contributions to third party advertising accounts to $15,000 in any non-election year and $30,000 in an election year.[4] Third parties will also have to identify themselves by name on all election advertising.[5]

The proposed legislation was passed by the Committee of the Whole on June 1st and will be debated again when the legislature resumes sitting in the fall.[6] At that time, critics from all points on the political spectrum will have their chance to denounce a bill they see as a direct attack on Albertans’ freedom of expression (guaranteed bysection 2(b) of the Charter of Rights and Freedoms). Strange Bedfellows from Right and Left The motivation for Bill 205 seems to come from the “Albertans for Change” anti-Conservative campaign, funded by trade unions during the last provincial election. Over a year ago, Premier Ed Stelmach went on record saying that he was considering limiting third party advertising during elections.[7] Bill 205 has received support from the PC caucus, with dissent limited to a minor amendment proposed by Calgary MLA Neil Brown (discussed below).

Mr. Anderson has defended his bill by declaring that it will “bring more transparency to election advertising and make third parties meet the same rules as political parties.”[8] The up-and-comer government backbencher believes it strikes the right balance between election fairness and necessary restrictions on individuals’ freedom of speech.[9] Minister and former PC leadership candidate Ted Morton supported the bill’s balancing act and reminded the legislature that it must be cautious when restricting the public’s ability to criticize government.[10]

Interestingly, New Democratic Party (NDP) MLA Rachel Notley voted in favour of Bill 205 at second reading.[11] In fact, New Democrats are perhaps the most vocal supporters of limiting third party election advertising. NDP leader Brian Mason told the Edmonton Journal that the bill does not go far enough, saying: “I don’t support third party financing in election campaigns at all.”[12]

This puts the NDP at odds with their traditional trade union allies, who spent over $2 million on the 2008 “Albertans for Change” campaign, while also giving the NDP over $100,000.[13] Gil McGowan, president of the Alberta Federation of Labour, has criticized Bill 205 for “dealing with a problem that never existed.”[14]The New Democrat position is supported by Public Interest Alberta, a lobby group advocating a more activist government, endorses Bill 205 in principle but as part of a comprehensive electoral reform agenda.[15]

Opposing this odd alliance of Tories and New Democrats are the Alberta Liberals, who have come out strongly against any limitations on third party election financing. Liberal MLA Harry Chase declared: “Bill 205 is not about democracy…it’s about stifling the opportunity to speak.”[16] His colleague Darshan Kang has gone as far as suggesting that the proposed legislation may be struck down by the courts for violating theCharter right to free expression.[17]

While the Liberals are alone in the legislature in opposing Bill 205, the frontrunner for the leadership of the Wildrose Alliance party Danielle Smith joins the official opposition in denouncing third party election financing restrictions. Ms. Smith believes that Bill 205 should be repealed, if passed this fall, because it “attacks one of the most basic freedoms in a democracy.”[18]

The odd couples paired on either side of the issue should make for lively debate when the proposed legislation comes up for debate in the fall session of the legislature. Tempest in a Teacup?

Critics of Bill 205 have been quick to contend that it infringes Albertans’ freedom of expression, protected by section 2(b) of the Charter. Liberal MLA Hugh McDonald stated in the legislature:

I think individual Charter rights are being restricted and limited by this legislation, and I don’t think if it goes to court, this piece of legislation would be upheld.[19]

Similar statements were made several times during debate over Bill 205, with Liberal MLAs specifically referring to previous court decisions where restrictions on third party advertising were challenged for violating section 2(b) andsection 3 (right to vote) of the Charter. This raises the question: would Bill 205 survive a court challenge on the grounds that it violates the Charter?

The Supreme Court of Canada decision inHarper v. Canada (Attorney General)[20] is the seminal case on the issue of third party advertising restrictions. Stephen Harper, while president of the National Citizens Coalition – an organization which advocates smaller government – challenged federal legislation limiting third party campaignexpenditures to $150,000 nationally and $3,000 per electoral district.[21] The Supreme Court unanimously found the restrictions did not violate section 3 of the Charter (democratic rights) but did violate individuals’ right to free expression. However, a majority of 6-3 ruled that the restrictions were saved by section 1 as they were a reasonable limit demonstrably justified in a free and democratic society (see Oakes test).[22] The minority believed that the restrictions were not “minimally impairing” of free expression. However, the majority ruled that they allowed third parties “to inform the electorate of their message in a manner that will not overwhelm the candidates, political parties or other third parties.”[23]

While Liberal critics of Bill 205 have not raised the Harper decision in debate, they have frequently noted a recent B.C. decision in which third party campaign expenditure restrictions were struck down. B.C.’s Election Amendment Act, 2008 capped expenditures at $150,000 provincially and $3,000 in each electoral district[24](as did the federal legislation upheld in Harper). However, the B.C. restrictions applied not only to the 28-day campaign period, but also to a 60-day period prior, to reflect B.C.’s fixed-date election legislation.

The B.C. Supreme Court followed the Harper decision in finding the restrictions breached section 2(b). However, Justice Cole found that B.C.’s restrictions were not saved by section 1. The feature that distinguished the B.C. case from Harper was the 60-day pre-campaign period, which the court determined was not “minimally impairing.”[25]As a result, the B.C. court struck down the restrictions on third party advertising in the 60-day pre-election period, but upheld the restrictions during the 28-day campaign period.[26]

Liberal critics have jumped on the B.C. decision as evidence that Bill 205 would not survive a Charter challenge. Liberal MLA Darshan Kang highlighted the decision in suggesting the proposed legislation would be struck down.[27] However, two important distinctions exist between the law challenged in the previous decisions and Alberta’s Bill 205.

First, while Liberal critics are correct in noting that restrictions on third party expenditures have been found to violate Canadians’ freedom of expression, Bill 205 deals only with individual’s contributions to third parties. The proposed legislation does not restrict how much third parties can spend, only how much individuals can give to them, as is the case with political parties. There has yet to be a case where limits on individual contributions to political or third parties have been struck down.

Second, both the Harper and B.C. decisions upheld restrictions on third party advertising during the election campaign period. Only in B.C., where fixed election dates allow for longer advertising campaigns prior to the election, were the pre-election campaign restrictions struck down. Alberta’s Bill 205 defines the campaign period as only the period after the election has been called, as is the case in the legislation upheld in Harper.[28]

Liberal MLA Hugh MacDonald seemed to acknowledge this distinction, stating that:

The difference [between B.C.’s legislation and Alberta’s Bill 205] is in the election period prior to the writ being dropped. That’s a major difference between what was quashed in the courts in B.C. and what we have before us here today.[29]

However, MacDonald believes that because “the intent is still the same,” Bill 205 will be struck down for violating section 2(b) of the Charter.[30] There are valid and important arguments justifying the view that restrictions to third party advertising during election campaigns are so vital to electoral fairness that they warrant infringing Canadians’ right to freedom of speech. The fall debate over Bill 205 should provide an opportunity for those on both sides of the debate to influence public opinion. However, critics who charge that Alberta’s potential third party election finance legislation will be struck down by the courts are being, perhaps, overzealous at best, and disingenuous at worst.

[1]2nd Sess., 27th Leg., Alberta, 2009 [Bill 205]. [2]Ibid. at s. 39.2(1). [3]Legislative Assembly of Alberta, Alberta Hansard (4 May 2009) at 942. [4]Bill 205 at s. 39.4(1). [5]Supra note 3 at 941. [6]Legislative Assembly of Alberta, Alberta Hansard (1 June 2009) at 1433. [7]Trish Audette, “Bill 205 would limit third party advertising during elections” Edmonton Journal (18 April 2009). [8]Darcy Henton, “Tories kill Liberal municipal funding bill” Edmonton Journal (5 May 2009). [9]Legislative Assembly of Alberta, Alberta Hansard (25 May 2009) at 1221-22. [10]Supra note 6 at 1429. [11]Ibid. [12]Supra note 7. [13]Mark Lisac, “Bills Debate: Bill 205, control of third party advertising” Insight into Government (Vol: 23, No: 34, 8 May 2009). [14]Supra note 7. [15]Larry Booi, “Alberta lags the rest of country when it comes to election finance rules” Edmonton Journal(30 June 2009). [16]Supra note 3 at 942. [17]Ibid. at 945. [18]“Policy” Danielle Smith (undated). [19]Supra note 6 at 1432. [20]2004 SCC 33 [Harper]. [21]Hogg, Peter W., Constitutional Law of Canada, 2008 Student ed., (Toronto: Thomson Carswell) at 1020. [22]Ibid. [23]Harper at para. 118. [24]4th Sess., 38th Parl., British Columbia. [25]British Columbia Teachers’ Federation v. British Columbia (Attorney General), 2009 BCSC 436 at para. 256. [26]Ibid. at para. 284. [27]Supra note 3 at 945. [28]Bill 205 at s. 39.1(1)(b). [29]Supra note 6 at 1431. [30]Ibid.

Corbiere v. Canada (1999)

John Corbiere was a status Indian belonging to the Batchewana First Nation, an Ojibway band near Sault Ste. Marie, Ontario. He was among the two thirds of Batchewana Band members who did not live on the band’s reserve land and were not permitted to vote in band elections. This restriction was imposed by section 77(1) of the Indian Act,[1] which limited the right to vote to band members who are “ordinarily resident on the reserve.”

As of 1999, almost half Canada’s Indian bands elected their chiefs and councils according to theIndian Act’s section 77(1) scheme that excluded non-resident members from the list of electors. The other bands held elections according to “customary” processes, as the Indian Act provides.[2]

Corbiere claimed that section 77(1) denied him equality as guaranteed by section 15(1) of the Canadian Charter of Rights and Freedoms, which reads:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Corbiere argued that “aboriginality-residence” is analogous to the legal grounds of discrimination that section 15(1) prohibits, and that the distinction made by section 77(1) of the Indian Act cannot be justified in a free and democratic society.

The 1999 Supreme Court of Canada decision inCorbiere v. Canada[3] (Corbiere) affirmed and extended the rulings of two lower courts: Section 77(1) of the Indian Act violates the equality rights of Batchewana Band members living off-reserve and other Indians in the same situation.[4] Aboriginal Rights and Freedoms: Sections 25 and 35 of the Constitution Act 1982

Existing aboriginal and treaty rights are recognized and affirmed by section 35 of the Constitution Act 1982. Section 25 of the Charter provides that the rights and freedoms in the Charter cannot “abrogate or derogate from any aboriginal, treaty or other rights or freedoms.”

An intervener in the case, the Lesser Slave Lake Regional Council, argued that the exclusion of off-reserve band members from voting amounts to “a codification of aboriginal or treaty rights under s. 35, or falls under ‘other rights or freedoms’ protected under s. 25.”[5] Thus they claimed that this provision of the Indian Act is exempt from Charter challenge.

A second intervener, the Native Women’s Association of Canada, argued that section 25 protects aboriginal rights from challenge by non-aboriginal people, but does not prevent aboriginal people from challenging aboriginal rights on Charter grounds.[6]

The Supreme Court noted that the reference in section 25 of the Charter to “any aboriginal, treaty or other right or freedom” is “broader” than the aboriginal and treaty rights covered by section 35. Accordingly, section 25 may protect “statutory rights” (including, possibly, parts of the Indian Act) from the operation of Charter rights. However, the Court did not accept that any legislation relating to aboriginal people is automatically within the scope of “other rights and freedoms” protected by section 25.[7]

The Court said that “given the limited argument on the issue, it would be inappropriate to articulate general principles pertaining to s. 25 in this case. Suffice it to say that a case for its application has not been made out here.”[8] In other words, the legal arguments on section 25 were too incomplete to allow the Court to render a decision on the effect of that section. In this portion of the decision, the Supreme Court followed the decision of the Federal Court of Appeal, which found that (a) there was not enough evidence of origins in traditional Batchewana practices to establish that the exclusion of non-resident members from voting was a section 35 aboriginal right, and (b) the system of democratic election imposed by the Indian Act “is not aimed at protecting and affirming Aboriginal difference,” so it is not among the Indian Act provisions that might be protected by section 25 as an “other right or freedom” relating to aboriginal peoples.[9]

Nonetheless, when considering the Charter right of equality, the Court held that legislation “must be evaluated with special attention to the rights of Aboriginal peoples” and “the protection of Aboriginal and treaty rights guaranteed in the Constitution.”[10] Therefore, while the decision did not turn on an interpretation of sections 25 and 35 of the Constitution Act, 1982, basic principles of aboriginal law underlie and colour the Supreme Court’s analysis of equality issues.

The Law Analysis

Law v. Canada[11] (Law) is the Supreme Court of Canada case that created a new test for equality claims under section 15(1) of the Charter. Corbiere is the first case in which the Court revisited the test set out inLaw. Its main legal significance is reflected in a split in the Court on how to apply the new test.

In Law, Justice Iacobucci said:

[T]he determination of whether legislation fails to take into account existing disadvantage, or whether a claimant falls within one or more of the enumerated and analogous grounds, or whether differential treatment may be said to constitute discrimination within the meaning of s. 15(1), must all be undertaken in a purposive and contextual manner.[12]

Law set out three broad inquires or stages of analysis to determine whether legislation violates section 15(1). These inquiries are:

(A) Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? (B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds? (C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?[13]

For the third stage of the analysis, Justice Iacobucci set out four contextual factors that should be applied.

The first is whether there is pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue. Secondly, the court must consider the correspondence, or lack thereof, between the ground or grounds on which the claim is based and the actual need, capacity, or circumstances of the claimant or others. The third contextual factor is the ameliorative purpose or effects of the impugned law upon a more disadvantaged person or group in society. The fourth and final factor for consideration is the nature and scope of the interest affected by the impugned law.[14]

Applying Law to Corbiere

A difference in opinion on the Supreme Court as to the correct application of the Law analysis resulted in two concurring sets of reasons in Corbiere. Fifty-seven pages – the bulk of the written judgment – are taken up with the reasons of a concurring minority of the Court. Justice L’Heureux-Dubé, joined by Justices Gonthier, Iacobucci and Binnie, wrote a detailed exploration of context in the second stage of the Law test. The reasons of the majority, written by Justices Bastarache and McLachlin and joined by Chief Justice Lamer and Justices Cory and Major, take up only ten pages of the written judgment and begin, “we believe this case can be resolved on simpler grounds.”[15] So, while there was a consensus on the final decision itself, the Court was divided on the correct way to reach a decision.

The Minority’s Reasons

Justice L’Heureux-Dubé begins her analysis of the section 15(1) framework by restating the principle in Lawthat “at all three stages, it must be recognized that the focus of the inquiry is purposive and contextual.”[16]

The first stage of analysis, establishing differential treatment, is dealt with swiftly and without commentary. There is no question that there is differential treatment between band members living on reserves and those living off reserves.[17]

The second stage, which involves determining whether “aboriginality-residence” (or “off-reserve band member status”[18]) is an analogous ground, involves more analysis. Here, L’Heureux-Dubé engages in an examination of whether “aboriginality-residence” has the potential to violate human dignity, the underlying value in section 15(1). She cites the precedent in Law: “Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued.… Human dignity … concerns the manner in which a person legitimately feels when confronted with a particular law.”[19] Another contextual factor to consider in identifying an analogous ground of discrimination is whether a personal characteristic is “immutable, difficult to change, or changeable only at unacceptable personal cost.”[20]

L’Heureux-Dubé held that these factors may or may not be present in a given group, depending on the social or legislative context. Essentially, a determination of whether a ground of discrimination is analogous to the grounds enumerated in section 15(1) depends upon each particular context.[21] Given the legislative context of section 77(1) of the Indian Act, “off-reserve band member status” is an analogous ground.[22] The implication, though, is that when other legislation is subjected to a section 15(1) challenge by off-reserve band members, a court would have to re-determine whether that new context creates another analogous ground.

In the third stage of analysis, L’Heureux-Dubé examines more fully the four contextual questions set out inLaw. First, she finds that off-reserve band members do suffer from disadvantage, vulnerability, stereotyping and prejudice. Citing the 1996 Report of the Royal Commission on Aboriginal Peoples, she notes that the common prejudice and stereotype in Canadian society is that aboriginal people belong on reserves or in rural places, and thus they are discriminated against and disadvantaged in urban settings. Moreover, their disadvantage is exacerbated by being “apart from the communities to which many feel connection.” They experience “racism, culture shock, and difficulty maintaining their identity.” She adds that this disadvantage is doubled in the case of aboriginal women. [23]

Next, she considers the relationship between the basis of the differential treatment and the individual’s characteristics or circumstances. Though some of the matters that are dealt with by the band council, such as law enforcement and traffic control, affect only the residents of the reserve, there are many other matters that affect all band members, regardless of where they live. Policies and spending on “education, creation of new housing, creation of facilities on reserves, and other matters that may affect off-reserve band members’ economic interest” are the concern all band members, wherever they live. Since voting rights affect these sorts of interests, which are unrelated to the residency-based differential treatment, they provide another indicator of discriminatory treatment.[24]

The final factor L’Heureux-Dubé considers is the nature of the affected interest. “The more important and significant the interest affected, the more likely it will be that differential treatment affecting this interest will amount to a discriminatory distinction.”[25] The “functions and powers” of the elected band councils profoundly affect the interests of all band members, including those who do not reside on- reserve. “The band council has the power to affect directly the cultural interests of those off-reserve who identify with the band and reserve.”[26] Decisions made by the council may affect “contact with the land, elders, Aboriginal languages, [and] spiritual ceremonies,” as well as the potential for the reserve to grow and accommodate those off-reserve members who wish to return to the reserve.[27]

The decision notes that Indians’ connections with reserve communities are often severed involuntarily or reluctantly.[28] The Batchewana Band gave up much of its ancestral land in pre-Confederation treaties; at one period in the late 1800s, the Batchewana Band’s land was reduced to a mere 15 acres.[29]

Furthermore, for over a century, the government’s official policy was to encourage “enfranchisement,” or assimilation of Indians into mainstream Canadian society. Legislation had been in place since 1857 to deprive women of Indian status if they married non-Indian men. In 1985, Bill C-31[30] reversed this discriminatory policy and restored Indian status to many women, and to some of their descendants. Thus there was an abrupt increase in the number of status Indians living off- reserve.[31] As of 1991, more than two thirds of the Batchewana Band’s 1426 registered members lived off- reserve.[32]

In view of these contextual factors, L’Heureux-Dubé determines that the distinction between on-reserve and off-reserve residency “reinforces the stereotype that band members who do not live on reserve are less aboriginal and less valuable that those who do.”[33]

The Majority’s Reasons

By and large, the majority agreed with the reasons of the minority, and thus did not delve into a detailed examination of the issues. However, the disagreements were important enough to warrant separate reasons.

The majority reasons, written by Justices McLachlin and Bastarache, differ from the minority reasons in their insistence that contextual analysis is not appropriate for determining whether an alleged ground of discrimination is analogous to the grounds enumerated in section 15(1). The majority finds that both enumerated grounds and analogous grounds are merely suspect grounds of discrimination; in other words, they do not indicate that discrimination necessarily exists. Therefore, analogous grounds are not determined by a contextual or fact-based analysis. Analogous grounds do not change from case to case.[34]

There is a rationale and advantage to keeping the second and third stages of the Law analysis separate. In the second stage, where analogous grounds are identified, cases that involve non-analogous grounds may be screened out. The majority maintains that this is a more efficient use of judicial resources and it avoids trivializing the guarantee of equality.[35]

How are analogous grounds identified? “[T]he thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law.”[36]

The majority determines that “aboriginality-residence” is an analogous ground that fits the criteria in the second step of the Law analysis, though they are careful to note that it should not be confused with ordinary residency decisions faced by the average Canadian. The residency decisions of Indian band members are “profound.”[37] Thus, “aboriginality- residence” is always a ground that invites suspicion of unjustifiable discrimination. Section 1 Analysis

All Charter Rights, including the right to equality, are subject to such reasonable limits as can demonstrably justified in a free and democratic country. The application of this limitation – entrenched in section 1 of theCharter – involves the three part test set out in R. v. Oakes.

The Supreme Court was unanimous in its application of the Oakes test to this case. The purpose of section 77(1) of the Indian Act is pressing and substantial. Parliament’s objective is to ensure “that those with the most immediate and direct connection with the reserve have a special ability to control its future.” The legislation is rationally connected to that purpose. However, the Court finds that the restriction is not minimally impairing. For instance, the Court suggests that a “two-tiered council” that divided issues between those that affect only on-reserve members and those issues that affect all band members would infringe equality rights to a lesser and more justifiable degree.[38] Remedy

Unanimously, the Supreme Court made an order that applies generally to all Indian bands. The issue of the remedy was the Court’s key departure from the reasons of the Federal Court and the Federal Court of Appeal. The Supreme Court opted to declare invalid the words “and is ordinarily resident on the reserve” in section 77(1) of the Indian Act.

In 1993, the Federal Court had issued a declaration that made the section 77(1) prohibition on off-reserve voting inapplicable to the Batchewana Band. The order applied only to the Batchewana Band because, as the trial judge believed, “I must confine myself to the actual case I have before me, its pleadings and its evidence.” The court also suspended the declaration for a period of months, as “[a]ny declaration with immediate effect could bring into doubt the ability of the Batchewana Band Council as presently elected to carry on the ordinary governance of the reserve.”[39] In 1996, the Federal Court of Appeal had instead ordered a constitutional exemption, which would “provideCharter relief only to the extent it was needed, instead of striking down legislation which served a legitimate purpose and was otherwise constitutional.” The order exempted the Batchewana Band from the words “and is ordinarily resident on the reserve” in section 77(1), thereby adding off-reserve members to the list of voters. The court explained:

It is also significant that section 1 may impact differently on other bands where different and more extensive evidence may be offered to attempt to justify a residency requirement for voting in band elections…. While this remedy may ultimately be extended to other bands whose electoral histories are similar to that of the [Batchewana Band], insufficient evidence has been presented in this case to permit this.

The Federal Court of Appeal’s declaration was made effective immediately, as the Band had by this time complied with the trial court’s order and adopted the new voting rules.[40]

The Supreme Court did not sympathize with the appeal court’s reasoning:

If a constitutional exemption were granted, this would place a heavy burden on off-reserve band members, since it would require those in each band to take legal action to put forward their claim. Equality within bands does not require such a heavy burden on claimants…. [T]he appropriate remedy is one that applies to the legislation in general … and not one confined to the Batchewana Band.[41]

Accordingly, the Court preferred to “read down’ theIndian Act: that is, to sever from section 77(1) the words that denied the vote to members not resident on the reserve. This approach was partly to “ensure that, should Parliament choose not to act, all non-residents will be included as voters under s. 77(1), but the nature of band governance and the requirements for voting will otherwise remain the same.”[42] The Court also recognized that, if Parliament were to leave the legislation untouched and many Indian bands had to open their voting systems to non-residents, “s. 77(1) or related sections of the Indian Act may be the subject of a constitutional challenge by on-reserve band members or others.”[43]

The Supreme Court’s declaration of invalidity was suspended for 18 months to give Parliament time to redraft the legislation so that it would minimally impair of Charter rights.[44] Ten years after the ruling, the legislation remains unaltered, even though a key phrase in it is no longer of any force or effect. The result is that Indian bands that have not established customary election procedures must allow for voting by off-reserve members.

Jim Young (July 22, 2009)

[1] R.S.C. 1985, c. I-5. [2] Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 at para. 26 (“Corbiere”). [3] [1999] 2 S.C.R. 203. [4] Batchewana Indian Band (Non-resident members) v. Batchewana Indian Band (F.C.), [1994] 1 F.C. 394 (“Batchewana trial”); Batchewana Indian Band (Non-resident members) v. Batchewana Indian Band (C.A.), [1997] 1 F.C. 689 (“Batchewana appeal”). [5] Corbiere at para. 51. [6] Ibid. [7] Ibid. at para. 52 (emphasis added). [8] Ibid. at paras. 20, 53. [9] Ibid. at para. 41; Batchewana appeal. [10] Corbiere at para. 67. [11] Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497(emphasis in original). [12] Ibid. at para. 41. [13] Corbiere at para. 55; Law v. Canada at para. 88. [14] Law v. Canada at paras. 62-75. [15] Corbiere at para. 1. [16] Ibid. at para. 56. [17] Ibid. at para. 57. [18] Ibid. at para. 6. [19] Ibid. at para. 59, citing Law v. Canada at para. 53. [20] Corbiere at para. 60. [21] Ibid. at para. 61. [22] Ibid. at para. 62. [23] Ibid. at paras. 71-72. [24] Ibid. at paras. 73-78. [25] Ibid. at para. 79. [26] Ibid. at para. 81. [27] Ibid. at para. 82 [28] Ibid. at para. 91. [29] Ibid. at para. 27. [30] An Act to amend the Indian Act, S.C. 1985, c. 27. [31] Corbiere at paras. 30, 85-86. [32] Ibid. at para. 27. [33] Ibid. at para. 92. [34] Ibid. at paras. 7-9. [35] Ibid. at para. 11. [36] Ibid. at para. 13. [37] Ibid. at para. 15. [38] Ibid. at paras. 21, 98-104 [39] Batchewana trial, supra note 4. [40] Batchewana appeal, supra note 4. [41] Corbiere at para. 113. [42] Ibid. at para. 118. [43] Ibid. at para. 120. [44] Ibid. at para. 126.

The Upper House Reference (1980)

Ever since the Senate of Canada was established at Confederation in 1867, politicians have tried to reform the institution. Formal changes to the main features of the Senate have never succeeded, however. A few modest amendments have altered the distribution of senators by province, and mandatory retirement of senators at age 75 was established in 1965. Otherwise, the Senate has evolved since 1867 by informal changes in practice, not by legal or constitutional reform.[1]

In 1978, the federal government proposedsweeping constitutional reform in Bill C-60[2], including replacing the Senate with an upper house to be called the House of the Federation. Half the members of the House of the Federation would be chosen by the House of Commons and the other half selected by the provincial legislatures.[3] With this proposal in mind, the federal government asked the Supreme Court of Canada to rule on the scope of Parliament’s authority to abolish or alter the Senate. The Supreme Court released its decision in Re: Authority of Parliament in Relation to the Upper House (Upper House Reference)[4] in 1980.

Amending the Constitution Prior to 1949

In 1980, Canada’s federal Constitution was still a law of the British Parliament. However, in 1949 some limited amending authority was transferred from Westminster to Canada’s Parliament by the insertion of section 91(1)[5] into the British North America Act (BNA Act, now known as the Constitution Act, 1867). Reflecting the Constitution’s deep roots in British constitutional principles and history, the Supreme Court began its inquiry in theUpper House Reference with the Canadian amending procedure prior to the addition of section 91(1) in 1949.

Because the BNA Act was an act of the British Parliament, any amendments had to be passed as laws of the Parliament in London. After 1875, the practice had been to seek an amendment through a joint address of both Canadian and British Parliaments. The Supreme Court recognized four general principles or conventions in the amending process prior to 1949:

Amendment of the BNA Act is made only upon formal request from Canada. (This convention was given force of law by section 4 of the Statute of Westminster, 1931). The approval of Canada’s Parliament is required for a request to British Parliament for an amendment. No amendment to the BNA Act will be made merely by request of a province. Parliament will not request an amendment directly affecting federal-provincial relationships without prior consultations and agreement with the provinces. (This principle emerged between 1907 and 1930.) [6]

Twenty-two amendments were made in this manner prior to 1949.[7] Only one of them, in 1915, made changes to the Senate. The 1915 amendmentrecognized the growth of western Canada by adding a fourth region for Senate representation to the three existing regions of Ontario, Quebec and the Maritime provinces. The Act also increased the number of senators to reflect this western expansion.

Section 91(1)

The British North America (No. 2) Act, 1949 added section 91(1) to Canada’s written federal Constitution. This amending clause granted Canada’s Parliament the authority to amend “the Constitution of Canada” without an enactment of British Parliament (see section entitled “Constitution of Canada” below).

Section 91(1) provided a partial amending authority defined by five exceptions:

provincial legislative powers; schools; the use of French and English; the requirement that Parliament convene at least once a year; and the requirement that the House of Commons continue for no more than five years, except in times of war, invasion, or insurrection.

The passage of section 91(1) did away with the requirement of a new act of the British Parliament for constitutional amendments that affected matters of direct concern to the federal level of government in Canada. The Parliament of Canada could amend the BNA Act by itself, without the help of the British Parliament, as long as the amendments were to “the Constitution of Canada” and did not touch on the five exceptions.[8] (Matters of wider constitutional change, affecting areas of provincial responsibility, still required for form of provincial consultation and the approval of British Parliament.) The lingering question about section 91(1), from 1949 to 1980, was the real legal meaning of the term “the Constitution of Canada.”

The amending authority of section 91(1) had been used only five times prior to 1981, for relatively minor changes the Court calls “federal ‘housekeeping’ matters.”[9] Specifically, these “housekeeping” amendments involved three adjustments to the number of members of the House of Commons, one adjustment to representation in the Senate, and a compulsory retirement age for senators. None of these amendments altered the essential character and purpose of the Senate, nor did they “in any substantial way affect federal-provincial relationships.”[10]

Historical Purpose of the Senate

After considering the amending procedures before and after 1949, the Court analyzed the historical roots and purpose of the Senate. Quoting John A. MacDonald and George Brown, two Fathers of Confederation, the Court describes the Senate as a means of affording protection to the various regional interests in Canada. In fact, the less populous Maritime region made it clear during negotiations leading to Confederation that without regional equality in the upper house, there would be no Confederation.[11]

“Constitution of Canada”

Until the addition of section 91(1) in 1949, the phrase “Constitution of Canada” was not used in theConstitution Act, 1867.[12] Rejecting the arguments of the Government of Canada, the Supreme Court gives this phrase a narrow interpretation, finding that the word “Canada” does not refer to Canada as a geographic entity, but only to the federal government.[13] Thus “the power of amendment given by s. 91(1) relates to the constitution of the federal government in matters of interest only to that government.”[14] As a result, sections of the BNA Act that affected provincial interests could not be amended unilaterally by the federal Parliament.

The question that followed from this finding was whether, in the limited sense that section 91(1) gave authority to amend the “Constitution of Canada,” Parliament could abolish the Senate.

Question 1: Does Parliament have Authority to Abolish the Senate?

The first question[15] referred to the Supreme Court in the Upper House Reference was whether Parliament had the authority to abolish the Senate by repealing sections 21 to 36 of the BNA Act.

The Court answered in the negative. Section 91(1) gives authority to Canada’s Parliament, which comprises two houses, the House of Commons and the Senate (in addition to the Crown). Legislation to abolish the Senate would alter the structure of the body to which constitutional authority, including the amending authority, is entrusted:

Section 91(1) cannot be construed to confer power [on Parliament] to supplant the whole of the rest of the section. It cannot be construed as permitting the transfer of the legislative powers enumerated in s. 91 to some body or bodies other than those specifically designated in it…. The elimination of the Senate would … involve a transfer by Parliament of all its legislative powers to a new legislative body of which the Senate would not be a member.[16]

Question 2: Does Parliament Have the Authority to Alter the Senate?

The second question referred to the Supreme Court in the Upper House Reference was whether the Parliament of Canada has authority to enact legislation that would alter the Senate in a number of specific ways. The question set out an extensive list of hypothetical changes.[17]

The Court declined to rule on several parts of this question, including whether Parliament may change the name of the upper house, whether it may change the qualification and tenure of senators, or whether it may confer some authority on the provinces in the selection process. The Court said that without more context these questions could not be answered categorically.

As to whether Parliament may change the numbers and proportions of senators representing provinces, the Court again notes that regional representation is an “essential feature” of the Senate, and “without it the fundamental character of the Senate as a part of the Canadian federal scheme would be lost.”[18] Therefore the answer to this question is no.

In response to the question of whether senators may be directly elected by the public, the Court gives an unconditional answer in the negative. An elected Senate would directly contradict the intention of the BNA Actto create “a thoroughly independent body which could canvas dispassionately the measures of the House of Commons.”[19]

In summary, the answer to this very detailed question is that Parliament may make alterations to the Senate, but:

[I]t is not open to Parliament to make alterations which would affect the fundamental features or essential characteristics given to the Senate as means of ensuring regional and provincial representation in the federal legislative process.[20]

What Significance Does This Decision Have Today?

The coming into force of the Constitution Act, 1982 effected the patriation of Canada’s Constitution. Section 44 of the 1982 Act replaced section 91(1) of theConstitution Act, 1867. It gives Parliament exclusive authority to amend the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons. This authority is subject only to exceptions enumerated in sections 41 and 42, which require either unanimous or broad support from the provinces.

Section 41 sets out matters that may only be amended with unanimous consent of the provinces, none of which pertain directly to the Senate. Section 42 sets out those matters that may only be amended by the general amending procedure described in section 38(1). The general amending procedure requires the consent of two-thirds of the provincial legislatures (which means at least seven out of ten) that together represent at least 50 percent of Canada’s population (the 7/50 formula). Among the matters listed in section 42(2) that require the 7/50 formula are: the powers of the Senate; the method of selecting senators; the number of members by which a province is entitled to be represented in the Senate; and the residence qualification of senators.

Since the replacement of section 91(1) by this detailed amending formula, there has been some question as to the continuing relevance of the 1980 decision in the Upper House Reference.

Jim Young (July 20, 2009)

[1] Jack Stilborn, “Senate Reform: Issues and Recent Developments” Library of Parliament (21 January 2008). [2] 3rd Sess., 30th Parl.,26-27 Elizabeth II, 1977-78, ss. 62-70. [3] Russell Ducasse, Reforming“ Canadian Institutions: Progress and Prospects” Canadian Regional Review vol. III no. 3 (September 1980) 41 at 43. [4] [1980] 1 S.C.R. 54 (“Upper House Reference”). [5] The full text of section 91(1) was: “The amendment from time to time of the Constitution of Canada, exceptas regards matters coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces, or as regards rights or privileges by this or any other Constitutional Act granted or secured to the Legislature or the Government of a province, or to any class of persons with respect to schools or as regards the use of the English or French language or as regards the requirements that there shall be a session of the Parliament of Canada at least once each year, and that no House of Commons shall continue for more than five years from the day of the return of the Writs for choosing the House; provided, however, that a House of Commons may in time of real or apprehended war, invasion or insurrection be continued by the Parliament of Canada if such continuation is not opposed by the votes of more than one-third of the members of such House.” [6] Upper House Reference at 64. [7] Ibid. at 60. [8] Ibid. at 64-65. [9] Ibid. at 65. [10] Ibid. at 66. [11] Ibid. at 67. [12] Ibid at 69. [13] Ibid. at 70. [14] Ibid. at 71. [15] The full text of the first question is: Is it within the legislative authority of the Parliament of Canada to repeal sections 21 to 36 of theBritish North America Act, 1867, as amended, and to amend other sections thereof so as to delete any reference to an Upper House or the Senate? If not, in what particular or particulars and to what extent? [16] Upper House Reference at 72. [17] The full text of the second question is: Is it within the legislative authority of the Parliament of Canada to enact legislation altering, or providing replacement for, the Upper House of Parliament, so as to effect any or all of the following; (a) to change the name of the Upper House; (b) to change the numbers and proportions of members by whom provinces and territories are represented in that House; (c) to change the qualifications of members of that House; (d) to change the tenure of members of that House; (e) to change the method by which members of that House are chosen by (i) conferring authority on provincial legislative assemblies to select, on the nomination of the respective Lieutenant Governors in Council, some members of the Upper House, and, if legislative assembly has not selected such members within the time permitted, authority on the House of Commons to select those members on the nomination of the Governor General in Council, and (ii) conferring authority on the House of Commons to select, on the nomination of the Governor General in Council, some members of the Upper House from each province, and, if the House of Commons has not selected such members from province within the time permitted, authority on the legislative assembly of the province to select those members on the nomination of the Lieutenant Governor in Council, (iii) conferring authority on the Lieutenant Governors in Council of the provinces or on some other body or bodies to select some or all of the members of the Upper House, or (iv) providing for the direct election of all or some of the members of the Upper House by the public or; (f) to provide that Bills approved by the House of Commons could be given assent and the force of law after the passage of certain period of time notwithstanding that the Upper House has not approved them? If not, in what particular or particulars and to what extent? [18] Upper House Reference at 76. [19] Ibid. at 77. [20] Ibid. at 78.

Federal Court to Decide If P.M. Harper Won an Illegal Election

The 2008 federal election caught many Canadians by surprise. One of them was Duff Conacher, coordinator of a “citizens advocacy” group called Democracy Watch. In the middle of the election campaign, Conacher began insisting that the election was illegal and contrary to the Canadian Charter of Rights and Freedoms. He will have a chance to persuade the Federal Court of Canada on September 8, 2009 – a year and a day after the election was called.[1]

Federal Fixed Elections: Proposed and Debated

In April 2004, Stephen Harper, then Leader of the Official Opposition, introduced Bill C-512 (the Dissolution of Parliament Act), a private member’s bill that died on the order paper a few weeks later. It was intended to place federal general elections on a predictable four-year timetable. Several provinces have similar fixed election laws. The bill’s preamble laid out its purpose:

[I]n the normal course of events a Parliament would continue for a fixed period, resulting in fixed and certain dates for the holding of a general election of members to the House of Commons, but subject to earlier dissolution, particularly for reasons of non-confidence in the government or as a result of a motion passed by the House of Commons.[2]

To sidestep any requirement of a constitutional amendment, the wording of Harper’s short-lived 2004 bill acknowledged the Governor General’s prerogative to call an election on the advice of the Prime Minister. Previous unsuccessful private members’ bills had relied on similar language.[3]

In 2006, the new Conservative government led by Prime Minister Harper revived the fixed elections scheme, in the form of a government bill, Bill C-16 (An Act to amend the Canada Elections Act[4]). Unlike Harper’s 2004 bill, the new C-16 had no preamble to describe its goals. However, a government press release on the day the bill was introduced explained how fixed elections would work:

Beyond providing for greater fairness, fixed election dates will improve transparency and predictability. This bill, however, will not change the practice of dissolving Parliament for elections if the government loses the confidence of the House of Commons…. The bill also sets out that the date for the next general election will be October 19, 2009, unless the government loses the confidence of the House prior to this time.[5]

The Minister for Democratic Reform in 2006, the Honourable Rob Nicholson, elaborated on Bill C-16’s intended effect when he opened debate at second reading:

Legislation providing for fixed date elections has to be structured to meet certain constitutional realities of responsible government. They include the requirement that the government have the confidence of the House of Commons and … the Governor General’s constitutional power to dissolve Parliament. The bill before us was drafted carefully to ensure that these constitutional requirements continue to be respected. The bill does not in any way change the requirement that the government must maintain the confidence of the House of Commons. Moreover, all the conventions regarding the loss of confidence remain intact.

In particular, the prime minister’s prerogative to advise the Governor General on the dissolution of Parliament is retained to allow him or her to advise dissolution in the event of a loss of confidence.[6]

The Minister also explained why the bill did not state explicitly that an early election could only occur if the government lost a confidence vote:

[I]f the bill were to indicate that the Prime Minister could only advise dissolution in the event of a loss of confidence, it would have to then define confidence and the dissolution of the House of Commons would then be justiciable in the courts…. We do not want the courts to decide what is a confidence measure and what is not.[7]

Fixed Elections Enacted

Bill C-16 became law on May 3, 2007, adding two sections to the Canada Elections Act[8] under a new heading, “Date of General Election.” Section 56.1 sets out the new rules for election timing:

(1) Nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General’s discretion.

(2) Subject to subsection (1), each general election must be held on the third Monday of October in the fourth calendar year following polling day for the last general election, with the first general election after this section comes into force being held on Monday, October 19, 2009.[9]

These provisions were in effect in September-October 2008, when the House of Commons was dissolved and a general election held.

The Unfixed 2008 Election

On September 7, 2008, Prime Minister Harper advised Governor General Michaelle Jean to dissolve Parliament. She followed the Prime Minister’s advice, in keeping with long-standing constitutional practice. The government had not been defeated in a non-confidence vote; in fact, Parliament was not sitting at the time. The Conservative Party was re-elected in the ensuing general election.

The Library of Parliament published a “Questions and Answers” document on the third day of the election campaign. It explains why the election was a year early, despite the new fixed election provision:

Why is the general election not held on 19 October 2009 as provided by the Canada Elections Act? Amendments were made to the Canada Elections Act during the 39th Parliament to provide for fixed-term general elections every four years for the Members of Parliament, the first of which was to be held on 19 October 2009. However, the amendments did not affect the power of the Governor General to dissolve Parliament and call for a general election, nor did they affect the prerogative of the Prime Minister to tender advice to the Governor General on those matters.[10] Professor Guy Tremblay questions the application of the fixed election provision to a minority Parliament, such as the 39th Parliament that was dissolved in September 2008:

In the case of a majority government, the provision in question does indeed deprive the Prime Minister of the power to choose the timing of an election call based purely on opportunism. But is that also true for a minority government?[11]

Tremblay’s answer is no: “The Prime Minister did not in my opinion violate subsection 56.1 of the Canada Elections Act” in seeking dissolution on September 7, 2008.[12]

Duff Conacher and Democracy Watch take the contrary view. They believe the Prime Minister broke the law. According to them, section 56.1 of the Canada Elections Act prohibited Harper from asking for an election in 2008 without first losing a confidence vote in the House of Commons. [13]

No Quick Fix: the Federal Court Declines to Cancel the 2008 Election

Rumours of an imminent election in August-September 2008 produced some confusion. Two days before the Prime Minister advised the Governor General to dissolve Parliament, Democracy Watch issued a news release that said it was “false” to claim that federal elections dates were “fixed” by the Elections Act amendment: “The simple reality is that federal election dates can only be fixed by making fundamental changes to the Canadian constitution.”[14]

The next day, then-Liberal leader Stephane Dion was quoted saying, “Some constitutional experts are saying this election will be illegal.”[15] A few days later, another Democracy Watch news release offered a new interpretation of the law, saying the election call was “very likely … illegal (given the new fixed election date law).”[16] Conacher continues to pursue this argument.[17]

On September 26, 2008, the midway point of the 2008 election, Conacher served a notice of application for judicial review on three respondents: the Prime Minister of Canada, the Governor General of Canada, and the Governor in Council (the federal Cabinet). It asked the Federal Court to revoke (“quash”) the Prime Minister’s advice on dissolution, the Governor General’s decision to dissolve Parliament, and the Cabinet’s proclamation of a general election to be held on October 14. Short of cancelling the election, it asked the court to at least declare that the election call was contrary to the new section 56.1 of the Elections Act, and to the right of Canadian citizens to participate in fair elections, guaranteed by section 3 of the Canadian Charter of Rights and Freedoms.[18]

The Federal Court issued an order on October 3, 2008, denying Conacher’s motion to hear the application on October 8.[19] The court was not satisfied that it could address the merits of the case in the few days available:

The case raises novel and complex, constitutional issues, including a Charter challenge alleging that the rights of Canadians to participate in fair elections is infringed. Expediting the hearing in these circumstances, would require that serious issues be determined, essentially on the fly…. I bear in mind that the applicants are not precluded from pursuing their declarations as to the legality of the election and the alleged breaches of the Charter after the election, and that they stand prepared to do so.[20]

The election of October 14, 2008 went ahead. The 40th Parliament opened with the Speech from the Throne on November 18; the Conservative government remains in place.

Democracy Watcher Says: The Fix was In

Duff Conacher and Democracy Watch have revised their judicial review application to “focus on the action of the Prime Minister in advising the Governor General to dissolve Parliament.”[21] They are no longer arguing that the Governor General or the federal Cabinet broke the law.

Pointing to Prime Minister Harper’s advice to the Governor General on September 7, 2008, they ask the Court for: (1) a declaration that “the holding of the election of October 14, 2008 contravened section 56.1 of theCanada Elections Act,” (2) a declaration that the election timing “infringed the rights of all citizens of Canada to participate in fair elections pursuant to section 3” of the Charter, and (3) a declaration that a constitutional convention prohibits an early election (according to the section 56.1 timetable) “unless there has been a vote of non-confidence by the House of Commons.”[22]

Conacher and his advocacy group concede that “it would be impossibly difficult to undo the consequences of the election of October 14, 2008.”[23] Still, they argue that unless Prime Minister Harper’s request to the Governor General to call an election in the fall of 2008 is declared illegal, the fixed election date legislation “will be rendered absurd and meaningless.”[24]

Admitting that they are presenting “a very unusual case,” the applicants summarize the political implications of their arguments:

The Government led by Prime Minister Harper proposed Bill C-16 for the express purpose of limiting the circumstances in which Prime Ministers could call elections. After the Bill was enacted, the same Prime Minister called an election in the precise circumstances that he and his Government had said would be precluded by the Bill. The present Attorney General of Canada, representing the Prime Minister and the other Respondents to this application, is the Honourable Rob Nicholson, the same person who presented Bill C-16 to Parliament in his former position as Leader of the Government in the House and Minister for Democratic Reform. In many respects, this case is truly unprecedented. It is respectfully submitted that it is essential for the future of democracy in Canada that this Honourable Court declare that the election of October 14, 2008 was illegal.[25]

The Globe and Mail says the case “should be laughed out of the Federal Court,” siding with experts who believe that “only by changing the Constitution could the government have altered the ability of the governor-general to dissolve Parliament on the advice of the prime minister.” They insist that it was up to voters to reprimand a prime minister who “made a mockery of his government’s pronouncements that it was improving democratic transparency and accountability.”[26]

Whether the Federal Court laughs or cries, its decision will surely attract close interest from the three provinces and one territory that have fixed-election laws on their books.