Threats to the Rule of Law:
A Real and Present Danger
Sept 12, 2015
Ian Greene
Harper’s War With the Law
• Sandy Garossino is a lawyer and former Crown
Attorney; now working in business in Canada and
internationally
• Argument: Harper knows very little about the rule of
law, or is holds it in contempt because it constrains his
authority. This attitude was the genesis of the Mike
Duffy scandal.
• My supplemental argument: Harper is not alone;
public servants need to understand the rule of law in
order to try to keep their peers and superiors (public
servants or elected) from violating it.
Duffy Issues
• Section 23 of the Constitution Act, 1867 states very clearly,
with regard to the qualifications of a Senator, that “He shall
be resident in the Province for which he is appointed.”
They must also be at least 30, own property worth $4,000,
and specific requirements for Quebec.
• Harper appointed Duffy, Wallin and several others knowing
they owned property in the province for which appointed,
but were not resident.
• 2013: PM’s lawyer, Benjamin Perrin, said owning property
in province for which appointed not enough for “residency.”
Harper, a non-lawyer, disagreed.
• Catch 22: If Duffy a resident of PEI, he can claim living
expenses for his home in Ottawa. If he’s not a PEI resident,
his appointment was unconstitutional.
• Perrin resigned a week after Wright paid Duffy’s Ottawa
expenses claims.
Nadon Issue
• Harper unhappy that even with 7 SCC appointees, he lost important
constitutional cases: eg. Insite & Omar Khadr before Nadon
scandal, and Senate reform, tough on crime, and assisted suicide
after. He wanted appointees who would do his will. (Didn’t
understand judicial independence or the rule of law.)
• In the Federal Court, Nadon was the only judge who sided with the
government re Khadr.
• Supreme Court Act requires 3 judges from Quebec: barristers, or
members of Quebec courts. Why? In Quebec civil appeals, 3/5
judges must be from Quebec. Provision for “temporary” judges to
make up the three, but Federal Court judges may not sit as
temporary judges. Why?
• Nadon had been a barrister in Quebec 20+ years earlier.
• When McLachlin heard that a federal court judge was being
considered for a Quebec permanent position, she wanted to ensure
that PMO knew there may be a constitutional issue.
• PMO asked for opinions on eligibility, but asked the wrong question.
(Peter Russell was asked, but gave PMO an answer they didn’t like,
so they ignored his advice.)
Nadon Ineligible
• Marco Galati challenged Nadon’s appointment in SCC.
Court heard the challenge and agreed: purpose of
Supreme Court Act is to ensure that Quebec judges on SCC
are experts in Quebec civil law.
• Harper then attacked McLachlin for violating judicial
independence. Harper universally condemned by Canadian
legal community and international legal community: it was
he who violated judicial independence.
• The more open and transparent system for SCC
appointments begun under Paul Martin, and continued for
a time by Harper (Rothstein) completely abandoned.
(previously, a nominating committee composed of eminent
jurists, a screening committee composed of MPs, and a
public questioning of appointee before House of Commons
Justice committee.
Senate Reference
• Conservatives wanted Senate “elections” as in
Alberta. Five amending formulas for Canadian
constitution. Harper claimed that legislation to
enable provincial Senate elections could be
accomplished through the “Parliament-internal”
amending formula.
• Why didn’t the gov’t send a reference question to
the SCC in 2006?
• Finally, in 2013, cabinet sent a reference question
on senate reform to SCC, and SCC answered in
2014.
Supreme Court’s analysis of Senate
• The Supreme Court’s reasoning was that an appointed
Senate, in which Senators are appointed until
retirement, is part of the “constitutional architecture”
of Canada. In the negotiations leading up to
Confederation in 1867, the nature of the upper house
in the new Parliament was of paramount importance,
and the union would never have come about without
agreement about the nature of the Senate. The Senate
was to be appointed rather than elected so that it
could act as a non-partisan chamber of sober second
thought, and Senators were appointed for life (later
until retirement) to encourage independent legislative
review based on years of experience.
Result of Senate Reference
• Creating an elected Senate requires the agreement of
7/10 provinces with at least 50% of the population,
plus Parliament.
• Abolition of Senate requires unanimous agreement of
10 provinces and Parliament.
• Interference with Senate’s independence by PMO
could be considered unconstitutional, and subject to
judicial review.
• No comment, of course, on proposal for a Senate
appointments system based on merit. I think that a
constitutional amendment is not required. But a
reference to SCC should take place before the system is
changed.
The Rule of Law
• Result of society’s quest for fairness over
thousands of years
• Since “glorious revolution” in England of 1688:
– Laws are made by elected legislatures (free and fair
elections)
– Disputes about meaning of laws are impartially by
judges who possess independence from the
legislature and executive.
– Laws to be applied impartially by the public service.
• Canada: what Parliament and provincial
legislatures can do is limited by the division of
powers, and the Charter of Rights & Freedoms.
Why you need to understand the Rule
of Law
• Your peers and superiors are liable to judicial
review, or even prosecution, if they stray from the
law.
• Eg: Alberta Assistant Deputy Minister who
advised Assured Income for the Severely
Handicapped administrators (six across province)
to vary their decisions according to amount left in
budget, rather than Order-in-council definition of
“severe handicap.”
• Alberta government successfully sued for
millions.