DOCSLIB.ORG

Conacher Missed the Mark on Constitutional Conventions and Fixed Election Dates

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Conacher Missed the Mark on Constitutional Conventions and Fixed Election Dates Conacher Missed the Mark on Constitutional Conventions and Fixed Election Dates Andrew Heard* Given the fundamental role that conven- major problems with the three-part Jennings tions play in the Canadian constitution, it is test adopted by the Supreme Court of Canada not surprising that litigants try from time to in the Patriation Reference and employed in time to engage the courts in defining or even Conacher. A fresh analysis of the issues in Co- enforcing the terms of a particular convention. nacher is needed to determine whether in fact a The Federal Court’s September 2009 decision constitutional convention had arisen to support in Conacher v. Canada (Prime Minister)1 is the the fixed election date legislation. latest high-profile example. Duff Conacher, Co- ordinator of Democracy Watch, had launched Any pronouncement by a court of the terms a court case that challenged the 2008 federal of a convention can and often does amount to election call as contravening either the provi- a political enforcement of the convention. The sions of the government’s fixed-date election authority of the courts adds considerable weight law (Bill C-16,2 passed in 2007), or conventions to their opinions, and their conclusions are of- supporting the law. The Federal Court rejected ten portrayed as authoritative. Thus, it matters Conacher’s application, holding among other whether a court is correct in its assessment of things that there was no constitutional conven- the existence or terms of a convention. Unfor- tion constraining the prime minister from ad- tunately, the Jennings test can only usefully vising an election before the October 2009 date identify a subset of constitutional conventions, prescribed in the statute. Conacher’s appeal was and it can seriously mislead analysis in other also rejected. In May 2010, the Federal Court of cases. The combination of problems evident in Appeal upheld the lower court’s decision, stat- the Conacher decision raises concerns about ing that “no such convention exists” based on the institutional capacity of Canadian courts the evidentiary record.3 For many observers, to deal with constitutional conventions. Some the Conacher decision may seem unsurprising observers might suggest that this judicial weak- and solidly based on the existing jurisprudence ness could be remedied by a stricter insistence dealing with constitutional conventions. on Dicey’s dictum that conventions have no place in the courtroom.5 However, as Conacher A closer examination of the Federal Court’s illustrates, the law is sometimes so dependent decision, however, reveals some disturbing logic on supporting conventions that it is either un- and flaws in reasoning. Some of these problems enforceable or untenable without them. In the are not peculiar to the judge in the case, but absence of any recognized convention, the fixed flow from the positions adopted by the Supreme election date law would appear futile. Court of Canada in the patriation cases.4 Co- nacher usefully highlights the flaws of orthodox Some laws, such as Bill C-16, are crafted thinking in Canadian legal circles about the with the full knowledge and intent that the bare nature of conventions. In particular, there are bones of the law will be modified by support- Constitutional Forum constitutionnel 129 ing conventions. Indeed, a number of statutes ernment statements, given during Parliament’s passed by the United Kingdom Parliament that consideration of Bill C-16, amount to an explicit now serve as Canada’s bedrock constitutional undertaking that elections would henceforth be documents granted personal powers to the gov- held on fixed election dates unless the govern- ernor general or lieutenant governors. And yet, ment of the day lost the confidence of the House it was understood at the time that those powers of Commons. Expert testimony from Peter would usually be exercised according to con- Russell argued that conventions could arise stitutional conventions that deprive a governor through such undertakings, becoming estab- of any personal choice in most circumstances. lished without the need for an actual precedent Had that understanding not existed, those stat- beforehand. Justice Shore considered the argu- utes would have been drafted in a very differ- ment by Conacher’s counsel – previously assert- ent fashion. Hundreds of federal and provincial ed in my own book7 – that conventions could statutes providing powers to the governor in arise in this way. However, the judge rejected council assume that the governor will in fact all of these points, holding that the legislative neither take part in nor reject the decisions of record was not consistent and that, in any case, their council. A great irony of both decisions constitutional conventions could not arise in a in Conacher arises from their emphatic recog- domestic setting through explicit undertakings. nition of the conventional right of the prime Although Justice Shore noted that Peter Hogg minister to advise the governor general on an had also recognized that conventions could election, while steadfastly refusing to recognize arise through explicit agreement, he took sol- any convention that might constrain when that ace in a footnote that appeared in Hogg’s text. election might be called. He noted, on the authority of this footnote, that R.T.E. Latham had written in 1949 of his be- Several interrelated problems are evident in lief that the only examples of conventions aris- Justice Shore’s handling of conventions in Co- ing through agreement were to be found in the nacher. The first difficulty arises with his dis- context of Commonwealth relations.8 The trial cussion of whether conventions must be based judge embraced Latham’s objection that domes- upon actual precedents or whether they can tic political actors could not create conventions arise through the explicit agreement of the rel- by agreement, because they could not bind their evant political actors. A second flaw is apparent successors to those commitments; by contrast in his interpretation of how the Jennings test in the international context, it is accepted that must be followed, particularly in the analysis governments can and do bind their successors. of the views of the relevant political actors con- cerning a purported conventional rule. The re- Justice Shore’s stance on these points does view of the historical record that supports this not survive close scrutiny. First of all, the sup- analysis displays serious weaknesses. These re- posed problem of actors not being able to bind lated problems may well have led to an errone- their successors in the domestic context is at ous conclusion about the existence of a consti- best something of a red herring and at worst tutional convention in this case. illogical. If one considers the context of tradi- tional conventions that arise through historical precedent, there is the inescapable assumption The Creation of Conventions by that future actors are bound by the views of Explicit Undertakings their predecessors. One must rely on statements by the relevant political actors in historical The application filed on Duff Conacher’s precedents that they believed themselves to be behalf argued that a constitutional convention bound by a rule in order for a convention to be had arisen to preclude the prime minister from recognized under the Jennings test. Many years advising the election in 2008, a year in advance can separate the historical events from the cur- of the date ostensibly set in Bill C-16’s amend- 6 rent situation, and yet it is accepted that present- ments to the Canada Elections Act. In essence, day actors are obliged to follow the precedents Conacher’s counsel argued that various gov- set in the past. Indeed, when the Supreme Court 130 Volume 19, Number 1, 2010 of Canada declared in the Patriation Reference framework, seems to qualify as a constitutional that there was a convention requiring substan- convention. Furthermore, British scholars ar- tial provincial consent to constitutional amend- gue that conventions can be created by unilat- ments affecting provincial powers, the majority eral declarations, such as when prime ministers decision only explicitly considered the prec- impose limits on how cabinet colleagues exer- edents and statements involving political actors cise their legal powers.11 These unilateral under- who had long left the stage, or even died. And takings can create conventions which bind that yet, the Court held that this convention contin- actor and even others over whom he or she has ued to exist, and as a consequence it bound the some power of enforcement. current government. Critics of this view might object that none of Secondly, there are a range of examples of these examples of purported conventions creat- constitutional conventions arising through the ed by agreement or declaration should really be explicit undertakings of the relevant actors. recognized as conventions until some precedent As Justice Shore noted, the most widely cited demonstrates that the actors are indeed observ- examples of these types of conventions arose ing a binding rule. But such an objection should during the Imperial Conferences in the 1920s also logically be applied to any convention es- and 1930s, in which the British and Domin- tablished by precedent. One should equally say ion governments agreed to a series of changes that we cannot know if there is still any con- in their relationships. These were considered as vention until current actors articulate a sense of binding rules
Load more

Recommended publications
  • A Calculus of Interest Canadian Peacekeeping Diplomacy in Cyprus, 1963-1993
    Canadian Military History Volume 24 Issue 2 Article 8 2015 A Calculus of Interest Canadian Peacekeeping Diplomacy in Cyprus, 1963-1993 Greg Donaghy Follow this and additional works at: https://scholars.wlu.ca/cmh Part of the Military History Commons Recommended Citation Greg Donaghy "A Calculus of Interest Canadian Peacekeeping Diplomacy in Cyprus, 1963-1993." Canadian Military History 24, 2 (2015) This Article is brought to you for free and open access by Scholars Commons @ Laurier. It has been accepted for inclusion in Canadian Military History by an authorized editor of Scholars Commons @ Laurier. For more information, please contact [email protected]. : A Calculus of Interest Canadian Peacekeeping Diplomacy in Cyprus, 1963-1993 A Calculus of Interest Canadian Peacekeeping Diplomacy in Cyprus, 1963-1993 GREG DONAGHY Abstract: Fifty years ago, Canadian peacekeepers landed on the small Mediterranean island of Cyprus, where they stayed for thirty long years. This paper uses declassified cabinet papers and diplomatic records to tackle three key questions about this mission: why did Canadians ever go to distant Cyprus? Why did they stay for so long? And why did they leave when they did? The answers situate Canada’s commitment to Cypress against the country’s broader postwar project to preserve world order in an era marked by the collapse of the European empires and the brutal wars in Algeria and Vietnam. It argues that Canada stayed— through fifty-nine troop rotations, 29,000 troops, and twenty-eight dead— because peacekeeping worked. Admittedly there were critics, including Prime Ministers Pearson, Trudeau, and Mulroney, who complained about the failure of peacemaking in Cyprus itself.
    [Show full text]
  • Views Or Conclusions
    The American Public and Israel in the Twenty-First Century Eytan Gilboa Mideast Security and Policy Studies No. 181 THE BEGIN-SADAT CENTER FOR STRATEGIC STUDIES BAR-ILAN UNIVERSITY Mideast Security and Policy Studies No. 181 The American Public and Israel in the Twenty-First Century Eytan Gilboa The American Public and Israel in the Twenty-First Century Eytan Gilboa © The Begin-Sadat Center for Strategic Studies Bar-Ilan University Ramat Gan 5290002 Israel Tel. 972-3-5318959 Fax. 972-3-5359195 [email protected] www.besacenter.org ISSN 0793-1042 October 2020 Cover image: Sheri Hooley via Unsplash The Begin-Sadat (BESA) Center for Strategic Studies The Begin-Sadat Center for Strategic Studies is an independent, non-partisan think tank conducting policy-relevant research on Middle Eastern and global strategic affairs, particularly as they relate to the national security and foreign policy of Israel and regional peace and stability. It is named in memory of Menachem Begin and Anwar Sadat, whose efforts in pursuing peace laid the cornerstone for conflict resolution in the Middle East. Mideast Security and Policy Studies serve as a forum for publication or re-publication of research conducted by BESA associates. Publication of a work by BESA signifies that it is deemed worthy of public consideration but does not imply endorsement of the author’s views or conclusions. Colloquia on Strategy and Diplomacy summarize the papers delivered at conferences and seminars held by the Center for the academic, military, official and general publics. In sponsoring these discussions, the BESA Center aims to stimulate public debate on, and consideration of, contending approaches to problems of peace and war in the Middle East.
    [Show full text]
  • Canada and the Middle East Today: Electoral Politics and Foreign Policy
    CANADA AND THE MIDDLE EAST TODAY: ELECTORAL POLITICS AND FOREIGN POLICY Donald Barry Canadian Prime Minister Stephen Harper came to power in 2006 with little experience in foreign affairs but with a well developed plan to transform his minority Conservative administration into a majority government replacing the Liberals as Canada’s “natural governing party.”1 Because his party’s core of Anglo-Protestant supporters was not large enough to achieve this goal, Harper appealed to non- traditional Conservatives, including Jews, on the basis of shared social values. His efforts were matched by those of Jewish leaders and the government of Israel to win the backing of the government and its followers in the face of declining domestic support for Israel and the rise of militant Islamic fundamentalism. These factors accelerated a change in Canada’s Middle East policy that began under Prime Minister Paul Martin, from a carefully balanced stance to one that overwhelm- ingly favors Israel. Harper’s “pro-Israel politics,” Michelle Collins observes, has “won the respect—and support—of a large segment of Canada’s organized Jewish community.”2 However, it has isolated Canada from significant shifts in Middle East diplomacy and marginalized its ability to play a constructive role in the region. Harper and the Jewish Vote When he became leader of the Canadian Alliance party, which merged with the Progressive Conservatives to form the Conservative Party of Canada in 2004, Tom Flanagan says that Harper realized “The traditional Conservative base of Anglophone Protestants [was] too narrow to win modern Canadian elections.”3 In a speech to the conservative organization Civitas, in 2003, Harper argued that the only way to achieve power was to focus not on the tired wish list of economic conservatives or “neo-cons,” as they’d become known, but on what he called “theo-cons”—those social conservatives who care passionately about hot-button issues that turn on family, crime, and defense.
    [Show full text]
  • The Mulroney-Schreiber Affair - Our Case for a Full Public Inquiry
    HOUSE OF COMMONS CANADA THE MULRONEY-SCHREIBER AFFAIR - OUR CASE FOR A FULL PUBLIC INQUIRY Report of the Standing Committee on Access to Information, Privacy and Ethics Paul Szabo, MP Chair APRIL, 2008 39th PARLIAMENT, 2nd SESSION The Speaker of the House hereby grants permission to reproduce this document, in whole or in part for use in schools and for other purposes such as private study, research, criticism, review or newspaper summary. Any commercial or other use or reproduction of this publication requires the express prior written authorization of the Speaker of the House of Commons. If this document contains excerpts or the full text of briefs presented to the Committee, permission to reproduce these briefs, in whole or in part, must be obtained from their authors. Also available on the Parliamentary Internet Parlementaire: http://www.parl.gc.ca Available from Communication Canada — Publishing, Ottawa, Canada K1A 0S9 THE MULRONEY-SCHREIBER AFFAIR - OUR CASE FOR A FULL PUBLIC INQUIRY Report of the Standing Committee on Access to Information, Privacy and Ethics Paul Szabo, MP Chair APRIL, 2008 39th PARLIAMENT, 2nd SESSION STANDING COMMITTEE ON ACCESS TO INFORMATION, PRIVACY AND ETHICS Paul Szabo Pat Martin Chair David Tilson Liberal Vice-Chair Vice-Chair New Democratic Conservative Dean Del Mastro Sukh Dhaliwal Russ Hiebert Conservative Liberal Conservative Hon. Charles Hubbard Carole Lavallée Richard Nadeau Liberal Bloc québécois Bloc québécois Glen Douglas Pearson David Van Kesteren Mike Wallace Liberal Conservative Conservative iii OTHER MEMBERS OF PARLIAMENT WHO PARTICIPATED Bill Casey John Maloney Joe Comartin Hon. Diane Marleau Patricia Davidson Alexa McDonough Hon. Ken Dryden Serge Ménard Hon.
    [Show full text]
  • Government of Canada
    A Brief History of the Performance and Planning Exchange (PPX) 1996 to 2016 By Peter J. Green The name for the Performance and Planning Exchange was conceived in 1997 on a drive home from Twin Elm Rugby Park, following a rugby match and the imbibing of several libations on the part of its creator. The notion was to provide an opportunity for the exchange of knowledge and experience among those involved in planning and reporting. The genesis of PPX requires a context. Pre-PPX: 1986-1996 The realization that an organ for learning was needed followed five government-wide initiatives: Increased Ministerial Authority and Accountability (IMAA) (1986) Public Service 2000 (December 1989) Program Review – Getting Government Right (1989-93) Improved Reporting to Parliament (March 1996) Planning, Reporting and Accountability Structure (PRAS) (September 1996) IMAA (1986) In February 1986, the Mulroney Government introduced Increased Ministerial Authority and Accountability (IMAA), the second part of its public service reform initiative (the first being the Ministerial Task Force on Program Review of 1984). The IMAA program was optional. In return for increased authority over such things as contracting and classification, as well as reduced reporting requirements, a department had to enter into a Memorandum of Understanding (MOU) with the Treasury Board of Canada. The MOU was to specify objective program service targets and set performance measurements to evaluate how well the department fullfilled established goals. It was a move from transactional controls to agreed strategic objectives and results with enhanced accountability based on results achieved. It was less than successful and short lived. 2 Program Review – Getting Government Right (1989-93) Building on the IMAA experience, the government, in December 1989, introduced Public Service 2000, a process to reform and renew the public service by making it less rule- bound and more innovative.
    [Show full text]
  • Annual Report Rapport Annuel
    ANNUAL REPORT RAPPORT ANNUEL Hebrew Free Loan Association of Montreal Association hébraïque de prêts bénévoles de Montréal HEBREW FREE LOAN ASSOCIATION ASSOCIATION HÉBRAÏQUE DE PRÊTS BÉNÉVOLES OFFICERS • DIRIGEANTS Sharron Schwartz Heather Adelson Ron Wigdor Daniel Zolov President Vice President Treasurer Secretary Présidente Vice-présidente Trésorier Secrétaire DIRECTORS • ADMINISTRATEURS David J. Cohen Marc Mintzberg Jack Noodelman Gerald Tabak Murray Steinberg Past President Past President Past President Director Director Ancien président Ancien président Ancien président Administrateur Administrateur Director Director Director Administrateur Administrateur Administrateur Andrew Koenig Iris Aaron Richard Grover Ariel Dayan-Medalsy Jack Dworkind Stacy Gurman Director Director Director Director Director Director Administrateur Administratrice Administrateur Administratrice Administrateur Administratrice DIRECTORS EMERITUS• Elaine Cappel, Aaron Fish, David Muller, Moshe Reiss, Peter Schreter ADMINISTRATEURS ÉMÉRITES PAST PRESIDENTS • Zigmond Fineberg* David Kaufman* Mark N. Kraminer ANCIENS PRÉSIDENTS Founder and Organizer 1980-1983 2000-2001 Fondateur et organisateur Joshua I. Ronn* Jack Noodelman 1911-1917 1983-1987 2001-2005 Moses Albert* Arthur Levitt Charles Benisty, CPA, CGA 1918-1921 1987-1989 2005-2006 Nathaniel S. Fineberg,* M. A. K. C. Bernard Richler* Rena Gornitsky 1921-1949 1989-1991 2006-2010 William Levy* Moses Salzberg Frank Leboff, FCPA, FCA 1949-1970 1991-1993 2012-2015 Joseph Guttman* David A. Stein, FCPA, FCA Marc Mintzberg
    [Show full text]
  • “Harper's New Rules” for Government Formation: Fact Or Fiction?
    “Harper’s New Rules” for Government Formation: Fact or Fiction? Rainer Knopff and Dave Snow When the minority government of Stephen Harper faced a non-confidence motion and likely defeat by an opposition coalition shortly after the 2008 election the Prime Minister argued that a coalition could not legitimately take power without an election. The impending defeat was staved off by prorogation and subsequent events but the so called “New Rules” of the Prime Minister were criticized by constitutional experts who saw them as infringing the established principles of responsible government which allow the Governor General to appoint a new government following an early vote of non-confidence. The Prime Minister’s later claim that the 2011 election was a choice between a Conservative majority or coalition – seemed to reject his own “New Rules” and was seen as evidence of his political expediency. This paper considers the constitutional politics concerning coalition governments that arose, first in 2008 and then again in 2011. It focuses on the question whether, and if so under what circumstances, a coalition can displace a minority government without holding new elections. It surveys the work of both critics and supporters of the “New Rules” and argues that Mr. Harper’s 2008 and 2011 positions are not inconsistent or contradictory. rime Minister Stephen Harper is said to have taken minority government in 2008, Stephen Harper a new and constitutionally suspect approach asserted that a proposed coalition of the Liberals and Pto government formation in 2008, insisting NDP (with the promised stable support of the Bloc that only new elections could change parliamentary Québécois) could not legitimately be appointed as governments.
    [Show full text]
  • Playing by the New Washington Rules: the U.S.–Canada Relationship, 1994–2003
    Playing by the New Washington Rules: The U.S.–Canada Relationship, 1994–2003 JOHN HERD THOMPSON ight years after its publication, the special issue of The American Review Eof Canadian Studies on “The State of the Canada–United States Relationship, 1995” seems almost surreal. Co-editors David Leyton- Brown and Joseph T. Jockel entitled the volume Weathering the Calm; their introduction described a “comfortable and unruffled” relationship. “The big bilateral issues have been dealt with,” they concluded, “and the current big issues are not bilateral ones.” The words “trilateral,” “multilateral,” and even “plurilateral” recurred in the articles that made up the volume. The United States and Canada, editors and contributors agreed, would work together with Mexico in a trilateral North American context, but would work together also in multilateral contexts within the hemisphere and around the globe.1 The lead article in Weathering the Calm was “Promoting Plurilateral Partnership: Managing United States–Canada Relations in the Post-Cold War World,” by John Kirton. “The United States–Canada relationship during the mid-1990s,” Kirton argued, “has become an even more intense, cooperative, and close partnership.” Canada and the United States would work together, he predicted, to “operate, deepen, and broaden…the new NAFTA regime.” The new independent institutions that the two countries created for NAFTA would remove trade and environmental “disputes from high-level political controversy,” and make possible “a more equal balance of beneficial outcomes.”
    [Show full text]
  • The Conflict Between the Harper Conservatives and the Federal Bureaucracy
    DRAFT for discussion only Not for publication without the permission of the author Strained Relations: The Conflict Between the Harper Conservatives and the Federal Bureaucracy Brooke Jeffrey Department of Political Science Concordia University Abstract A series of highly publicized confrontations between the Harper Conservatives and senior government officials, as well as their direct intervention in the operation of arms’ length agencies, elimination of advisory bodies and rejection of expert advice, have led many observers to conclude the Harper government is at war with its public service. These developments raise a number of broader questions. Is the Harper government’s troubled relationship with the federal bureaucracy merely a continuation of a trend established by previous Conservative governments, based on suspicion, mistrust and a deep-seated conviction that the public service is biased in favour of the Liberal Party? Or does it reflect a significant departure from the norm, grounded in differing values and beliefs about the appropriate role of government and public servants? Using empirical evidence and a comparative methodology, this paper will examine the record of the Mulroney and Harper governments in light of five fundamental principles of a modern merit-based bureaucracy – neutrality, anonymity, professional expertise, rules-based decision-making, and arms’-length relationships – in an effort to determine whether the Harper Conservatives are indeed taking a qualitatively different approach to the bureaucracy and the machinery of government. Canadian Political Science Association 2011 Annual Conference Waterloo, Ontario May 17, 2011 “The reality is that we will have for some time to come,,, a Liberal civil service…” Conservative Party leader Stephen Harper January 17, 2006 Introduction When Stephen Harper and the Conservative Party came to power in 2006 public servants were already wary of his new government.
    [Show full text]
  • When Is an Apology Not Enough? Or Too Much? Page 1 of 15
    globeandmail.com: When is an apology not enough? or too much? Page 1 of 15 GlobeSalon When is an apology not enough? or too much? GLOBE AND MAIL UPDATE JUNE 12, 2008 AT 2:45 PM EDT Hello, I'm Patrick Martin, Comment Editor of The Globe and Mail, and This is GlobeSalon. Today, we welcome readers to a new feature on globeandmail.com: Whenever major news developments or burning issues arise, we have gathered an impressive list of commentators to join us in discussion, salon-style — as if we've invited these people into our living room to discuss pivotal events. There are about two dozen "salonistas" and you can read the lineup and see their biographies and pictures here. Not all of them will join us every time. Today, we'll be joined by historian Margaret MacMillan, now at St. Antony's College at Oxford; by pollster and author Michael Adams; CAW economist and new author Jim Stanford; Christian broadcaster Lorna Dueck; former PQ cabinet minister Joseph Facal; Michael Higgins, president of St Thomas University in Fredericton and noted scholar on the Vatican; former chief of staff to Brian Mulroney and former ambassador Norman Spector: author William Johnson, a past president of Alliance Quebec; Halifax lawyer and former Trudeau adviser Brian Flemming; Nobel laureate and science advocate John Polanyi; Globe and Mail columnist Marcus Gee and more. Related Articles Recent • Meet The Globe's Salonistas: Bios and photos • News: 'We are sorry' • Michael Byers: Mr. Harper, apologize to the 'High Arctic exiles' • Globe editorial: Canada's expression of sorrow • Margaret Wente: Whose truth? What reconciliation? • One victim: 'It's just a bunch of words' • Voices: A personal history of residential schools • News: Schools not entirely bad, native writer contends From the archives • Earlier Discussion: Bill Curry on residential schools On other occasions, we'll be joined by the likes of Naomi Klein, Preston Manning, Mark Kingwell and Lysiane Gagnon.
    [Show full text]
  • Political Leadership and Shifts in Canadian Foreign Policy: Interventions in Yugoslavia and Afghanistan
    Political Leadership and Shifts in Canadian Foreign Policy: Interventions in Yugoslavia and Afghanistan CPSA Conference 2008 Dr. Nicholas Gammer Thompson Rivers University [email protected] This paper represents a preliminary foray into the significance of political leadership as a central determinant of change in Canadian foreign policy. As such it will not adopt an arbitrary or restrictive definition of the rather indefinable and contested concept of political leadership. However, the concept of political leadership will be understood to encompass a process used by governments to preside over public policy and “the question of who controls the outcome of public policy decisions within a state and how they do so” will encompass this study.1 Also important is the degree to which political leaders – individuals in higher positions of authority – are capable of determining the foreign policy decision-making process. It is understood that individual leaders do not enjoy complete autonomy in shaping policy outcomes. Nevertheless, in terms of assessing shifts in Canadian foreign policy since the 1980’s, the increasing centrality of political leadership in the process of making foreign policy has become more evident. Canada’s role in the Yugoslav intervention of the early nineties attested to the formidable role of political leadership in initiating and managing a shift in Canadian foreign policy from a reliance on peacekeeping to an acceptance of an interventionist form of peacemaking as a means of bolstering multilateralism and advancing the cause of human rights. This first shift has set the stage for yet another significant departure from Canada’s traditional and comfortable position as a middle power peacekeeper.
    [Show full text]
  • Chapter 6 Canada's Conviction Review Process
    Chapter 6 Canada’s Conviction Review Process 1. Introduction avid Milgaard was investigated by the Saskatoon Police and the RCMP for the murder of Gail Miller. He was prosecuted by a representative of the Attorney General of Saskatchewan, and Dconvicted on January 31, 1970. His appeals were exhausted in 1971. The Attorney General of Saskatchewan could not set aside Milgaard’s conviction after his appeals were exhausted. The only way for Milgaard to challenge his 1970 murder conviction was to apply to the federal Minister of Justice pursuant to s. 690 of the Criminal Code and seek the mercy of the Minister. The federal Minister had the power to return Milgaard’s case to the judicial system. Milgaard applied in 1988 and again in 1991. Ultimately, in 1992, after two s. 690 applications to the federal Minister, a reference to the Supreme Court of Canada and 23 years in prison, his murder conviction was set aside and he was released from prison. The Attorney General of Saskatchewan did not proceed with a new trial against Milgaard, choosing instead to follow the advice of the Supreme Court of Canada and enter a stay of proceedings. On July 18, 1997, DNA testing identified Larry Fisher as the donor of semen found on Gail Miller’s clothing. Both the Saskatchewan Minister of Justice and the federal Minister of Justice apologized to Milgaard for his wrongful conviction. Saskatchewan Justice and the police reopened the Gail Miller murder investigation. Larry Fisher was arrested and charged with the murder of Gail Miller on July 25, 1997 and convicted on November 22, 1999.
    [Show full text]