Law in the Age of Justin Trudeau
Whether you greeted the ascendancy of Justin Trudeau’s Liberals with rainbow-tinted visions of angels and unicorns or you prophesied Canada’s sulfuric descent into a pit of doom, all agree on one inviolable truth: change is coming.
Trudeau, and his newly appointed Justice Minister, Jody Wilson-Raybould, face a ticking clock on a phalanx of legal challenges and legislative amendments many of which require immediate attention.
Marijuana
Whether it’s legalization or some form of decriminalization, this is a promise that Trudeau’s youthful fans – who turned out to vote for the party in record numbers – are not likely to sit quietly on for long. Some form of regulation is a virtual certainty to prevent abuse by children and others but it’s anyone’s guess whether the specifics of this responsibility will be handed off to Provinces or municipalities or whether comprehensive amendments to the Criminal Code and Controlled Drugs and Substances Act will encompass the totality of marijuana’s new legal status. Although this might be the easiest reform to tackle, it would be wise for Trudeau to resist the temptation of a quick fix. Making the legalization of pot his top legal priority risks giving ammunition to the critics who claimed his political agenda was more smoke than fire.
Assisted Suicide
On February 6, 2016 the twelve month suspension of the Supreme Court’s landmark ruling runs out leaving a vacuum on the regulation of physician-assisted suicide. One Quebec clinic has already announced its intention lift the ban a week early following that Province’s trend towards liberalizing access to the practice. This leaves precious little time for the Federal government to craft meaningful legislation that follows the guidelines set out by the Supreme Court which would permit hastening death on behalf of mentally competent patients facing a “grievous and irremediable medical condition”. Explicitly excluding depressive illness from those conditions which would qualify for doctor assisted suicide would go a long way towards addressing the hyperbolic claims by some that a deluge of ‘death doctors’ will descend on Canada’s mentally ill.
Senate Reform
With outright abolition a virtual constitutional impossibility, Wilson-Raybould must navigate the handcuffs of a recent Supreme Court ruling with the blue-sky Liberal promise of substantive Senate reform. The Mike Duffy trial is back for round three and, while this albatross was hung firmly around Stephen Harper’s neck, its return to the headlines is bound to remind people of Trudeau’s promise to radically revamp the Red Chamber. Meanwhile, a Conservative-dominated Senate poses a roadblock to all impending Liberal legislation. Harper’s refusal to appoint new Senators for many months at the tail-end of his government has left a substantial number of seats open for appointment. The temptation to revert to the decades-long tradition of cronyism will be hard for Trudeau to resist, particularly as the Prime Minister arguably has a legal obligation to fill those vacancies and not continue Harper’s tradition of abolition-by-neglect.
Supreme Court of Canada Appointments
Stephen Harper’s legacy on the Supreme Court will be long felt having appointed seven of the nine judges during his tenure as Prime Minister. Despite this unprecedented power to shape the bench, his tough-on-crime agenda was repeatedly dealt blow after blow by the activist court led by Chief Justice McLachlin. In 2018 McLachlin will be subject to mandatory retirement leaving PM Trudeau with several options. Will he elevate an existing Judge, back-filling the vacancy, or make a surprise appointment of an outsider directly to the Chief’s chair?
Mandatory Minimum Sentences
The proliferation of mandatory minimum sentences under the Harper government suffered numerous judicial setbacks with high-profile declarations of unconstitutionality. The new Liberal government has already expressed a desire to revisit this controversial approach to sentencing though unwinding laws that guarantee longer jail terms for gun crimes and child abusers may prove an unpopular move even to Trudeau’s broad base of supporters.
Bill C-51 Anti-Terror legislation
Seeking to avoid the political cost of seeming ‘soft on terror’ Trudeau walked a hypocritical line with Bill C-51 simultaneously critiquing the legislation as dangerously over-reaching while voting in favor of its adoption. Now the Liberals must follow-through on their promise to amend the bill’s most controversial elements while maintaining the core that permits security agencies broader latitude to combat terrorism. Expect to see the introduction of Parliamentary oversight and a clawing back of rules that permit judicially-authorized Charter violations.
Bill C-24 dual-class citizenship
“A Canadian is a Canadian is a Canadian.” So bellowed Justin Trudeau from pulpits and election ads across the country. Now he has the awkward opportunity to restore the privilege of Canadian citizenship to dual nationals convicted of heinous terrorism offences. While the soundbite played well during the campaign, acting upon this promise means aligning with some pretty unsavory folk.
Electoral Reform
What will Parliament look like without first-past-the-post (FPTP) elections? That’s anyone’s guess but, if election promises are to be believed, the next Federal ballot Canadians cast will look substantially different than the status quo. Whether it’s weighted voting or some form of proportional representation, any change to FPTP will have seismic repercussions on government for decades to come and could – if Trudeau succeeds in generating sufficient support around a single new model – be the most enduring legacy of his term as leader.
See also the piece in the Law Times on this subject here.
Doing away with first-past-the-post, we must be very careful what we do.
The key principle of first-past-the-post is that the electors of each geographical area (“riding”) send one person to represent them in Parliament. In theory, the electors of each riding could return an Independent candidate, and it would be up to all of those Independents to work together to choose a Prime Minister from among their number. Unlikely but possible.
Most of the suggestions for replacing first-past-the-post require the existence of political parties and absolutely foreclose on the possibility of the electorate making a choice to not elevate any of the political parties to the towers of power. So-called electoral reform must not have the perverse consequence of entrenching the power of political parties by making them a crucial component of our system.
On electoral reform: the preferential ballot does not depend on the existence of political parties. One’s first, second, third or subsequent preferences may be for an independent candidate.
If there were to be a referendum on a new system, it would make a difference if the government campaigns for it. Ontario’s Liberal government ran a complex but fair system for getting province-wide citizen input for a design of a new system. It then added a vote on that system to the 2007 provincial election campaign. However, the government stayed resolutely out of the issue, barely mentioning it, much less supporting it. The recommendation died more from neglect than from opposition.
Of course the government may not have wanted the recommended option, or any change at all. But without the resources of a major party behind any citizen-based reform, the chances of that reform being widely supported are very poor.
Regarding Bill C-24, I am certainly hoping that piece of legislation will be repealed or, at least, amended. As a Lost Canadian (here since 1946, child of a WWII veteran of the Canadian forces) my family lost citizenship in 2004 so cannot vote. I have applied under C-24 but have heard nothing. However, at my age, I am not so concerned about myself but I am extremely disturbed that my children, nieces and nephews and other relatives are now “second class citizens”, vulnerable to revocation at the whim of some politician, with no court process. That is exactly how we, and thousands of others lost ours: they have just given themselves the official right to continue that practice. Our children were born in Canada, lived here all their lives, are excellent and contributing Canadian citizens: unfortunately,they have parents born abroad due to their grandparents’ military service for Canada in WWII so share the British citizenship we acquired by birth. They have done nothing wrong and do not deserve this demotion of citizenship with restrictions yet to be determined by future governments.
Why not just scrap the legislation and use the criminal justice system we already have to deal with the “pretty unsavoury folk” rather than designating perhaps over a million innocent people as possible dangers to Canada? And while they are at it, why not start recognizing those Canadian soldiers pre 1947 as Canadian again? Whenever I have attempted to resolve my citizenship issue, I am told my father could never have been a Canadian citizen in 1947 because he was not “domiciled within the country” for the years immediately preceding WWII, so I see that as the main justification for stripping citizenship in the last decade.
Before I lost my citizenship, I would never have believed we could go back to the practice of interning “aliens” based on their family origins as we did in WWII. The second tier of citizenship created in Bill C-24 would make that a possibility again. I do not believe that most Canadians would really want to see that happen.