A Mid-Summer Review of Current Issues

Senate Abolition or Reform

Now all three major political parties have a position on the Senate. The NDP wants to take the steps necessary for abolition. The Liberals want an improved quality of “eminent” Senators chosen by an independent body. Stephen Harper has declared that he will continue his now official policy of not appointing any more senators, “to save money” and “to pressure the provinces into coming to the table for reform.” Talk of a future referendum on abolition or reform of the Senate is now widespread. For what it’s worth, I think Harper’s policy of non-appointing senators is unconstitutional and would likely be overturned by the Supreme Court of Canada if it were put to the court on a reference. In my view, it is yet another example of Harper’s persistent putting himself and his policies above the law. Given his track record of unilateralism on every issue, what credibility has he got as a “leader with the provinces” in seeking a consensus for real reform? 

Canada Post Community Mailboxes

Last spring, the City of Hamilton passed a by-law requiring Canada Post to get a permit from the City for the location of their proposed community post boxes, and to pay a permit fee of $200 per box. The City went to the Ontario Superior Court seeking an injunction against Canada Post from installing any further boxes until the court decided the issue. Canada Post challenged the constitutional authority of the municipality to pass their by-law. The issue was: who had the right to control the location of mailboxes used to carry out the federally mandated postal delivery? Justice Alan Whitten found that was within the core power of the federal government, as given to Canada Post, and that Hamilton’s by-law was “inapplicable and inoperative.” The City of Hamilton has now appealed. I will report on the appeal decision once it is heard. 

In the meantime, Canada Post has announced that door-to-door mail delivery would continue in “the core” of downtown Toronto (the heart of the business community). That “core” will end at Bathurst Street and not extend west into my neighbourhood. Toronto councillors took the matter to the Canadian Federation of Municipalities in June for a national response. Now that the practical implications of ending door-to-door mail delivery have become more clear, the one-size-fits-all policy of Canada Post has become a hot-button political issue.

The “Politicization” of Federal Judicial Appointments?

Sean Fine’s fine in-depth analysis of the federal government’s judicial appointment process published in the Globe and Mail on July 25th, entitled “Stephen Harper’s Courts,” and the follow up articles which have appeared through the week, should be required reading for all citizens interested in the justice system. The federal appointment process has always been of concern but, according to Fine, the Harper government has made it worse. The increasing concern about “politics supplanting merit” is a response to the recent appointments of Justices Bradley Miller and Grant Huscroft to the Ontario Court of Appeal. Both are proponents of “Originalism,” the right-wing American legal theory of constitutional analysis championed on the American Supreme Court by Justices Antonin Scalia and Clarence Thomas, and outside the mainstream of Canadian legal jurisprudence. The surprise appointment last week of Alberta Justice Russell Brown to the Supreme Court of Canada has added to the concern. He has called himself “a conservative libertarian” and has but two years of judicial experience. The Globe and Mail headline today tells it all: [Justice Minister Peter] “MacKay declines to explain court pick.” Wasn’t it Stephen Harper who once campaigned on the need for Parliamentary review of Supreme Court appointments? That was then; this is now.

My First “Official Publication”

I was delighted to open the Globe and Mail this morning and find published a Letter to the Editor I’d written. A comment on “Judge’s Powers,” it follows up on an analysis of the Carter decision which I wrote in a March post, on Re-view from the Bench, relating to speedy Supreme Court decisions. You can read the letter yourself on the Globe and Mail Letters to the Editor webpage for July 30th. Thanks to Malcolm Metcalfe for providing me with the link. Not a bad way to recharge my batteries after a lengthy lay-off.

Hope everyone is enjoying a good summer.

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  1. 17larry

    There are other forms of government in the Commonwealth that could be considered in Canada, since there seems to be a lot of ongoing controversy at this time. In the Australian Federal government, all Senators are elected by the people to six-year terms, half of which are voted in every three years when the lower house elections are held. In Queensland, the state abolished the Senate in 1922 and no one seems to miss it.
    Voting in Australia is compulsory in all federal, state and local elections.

    • Marlene

      While I favour abolition of the Senate, I would prefer some form of appointment process of “eminent persons” to an electoral system. Ideally one would expect the Senate to reflect the diversity of the country (regions, gender, race & ethnic origin, etc,) and consist of people with a wide range of expertise, rather than partisan clout.

  2. Marlene

    Perhaps you saw the piece in the Globe yesterday about the judicial appointment process in the UK. If you’re so inclined, when you have time, it would be good to have your thoughts on it.

  3. Julia

    Marion, there was an interesting article in yesterday’s Globe about the British judicial appointment process. It is a lot better than ours. Hope you saw it.

    I am in favour of reform of the Senate rather than abolition. What I am really against is Harper’s failure to do his duty.

    • Marion Lane

      The judicial appointment process for the Ontario Court of Justice is also a much better system. It was initiated by the Ontario Liberals on the advice of Minister of the Attorney General Ian Scott in the late l980s. The Judicial Appointments Advisory Committee has fourteen members (I think) representing all the stakeholders: judges, lawyers, other related professionals, community groups, members of the public. The Committee advertises every available vacancy and vets all applications for each position. Members of the Committee conduct enquiries and then shortlist candidates for extensive interviews (including role playing) before the entire Committee. The Committee then sends a very short list of recommended candidates to the provincial Government, which fills the vacancies from those candidates. The system has been operating very successfully since, and is considered one of the best in the world. The process is transparent, accountable and has produced a bench which reflects the demographic nature of the population. The Annual Reports of the Committee are available for public review.

  4. Fred

    I think you could get a judicial statement of the obvious, in the form of a declaration that the words “shall appoint” are mandatory rather than directory. But whether the SCC would mandamus the PM, the Governor General, or either of them, so as to require the PM to advise the Governor General to appoint senators or to require the Governor General to do so in the absence of timely advice from the PM, is another matter.

    But that is not the end of the matter. The Constitution Act, 1867, establishes 15 senators as a quorum for conducting business. At some point before there are only 15 senators there will typically not be a quorum and as the Senate must vote to approve legislation coming up from the House of Commons before it becomes law, legislation will not become law and budgets will not be passed, and Prime Minister Harper, if he is still prime minister, will be roundly condemned by all as an idiot.

  5. Marlene

    Regarding Canada Post: In Ottawa, the boxes are being installed, including in our Westboro neighbourhood, but not yet in use. Our community box is 2 houses north on a large corner lot – seemingly convenient for us, but not for our neighbour on the south side who has been assigned to a box near the south end of the street. What we’re wondering about is the snow shovelling in the winter. While Ottawa has a good system of snowplowing sidewalks (with appropriate equipment) in a reasonably timely manner, our street has no sidewalks – we have to walk on the road, dodging cars, school buses, etc in the block north of us – so we envision the road plow leaving a huge (often icey) pile of snow at the access point to the community mail box. Two of the corner lots have a sidewalk on one side – interestingly, Canada Post chose one of the corner lots without a sidewalk. We didn’t really think of the snow-clearing issue when we were first notified of the location; it only came to mind once the boxes were installed. From your earlier blog about these boxes, I can certainly understand why you would think that Bathurst is hardly an appropriate westerly boundary for the Toronto City core’s continuing home delivery. It will certainly be interesting to see how, if at all, this plays out in the election.


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