Surprisingly, in 2008, most of the constitutional action occurred not inside the august chambers of the Supreme Court of Canada but next door on Parliament Hill and down the street at Rideau Hall.
The top constitutional story of 2008 was undoubtedly the “crisis.” It had the potential to erupt into a constitutional crisis but the dramatic decision of Governor General Michaëlle Jean doused any constitutional fire, at least temporarily.
Her decision to agree to the Prime Minister Stephen Harper’s request to prorogue Parliament until today, also led to the replacement of Stéphane Dion by Michael Ignatieff as leader of the Liberal party and of the official Opposition. It also likely deferred the dream of coalition government in Canada for the near future.
The crisis also had the effect of reminding lawyers and law professors that there are many important aspects of the Constitution beyond the Charter of Rights and Freedoms. Since the enactment of the Charter, subjects like the Governor General, responsible government, confidence votes, and the workings of Parliament have largely been left to the political scientists.
The events of 2008 reminded us that these are important constitutional issues worthy of debate and analysis. Constitutional texts will be updated to add “Harper-Jean (2008)” after “King-Byng (1926)” and more law students might start learning about such things as prorogation, dissolution, and the reserve powers of the Governor General. Perhaps.
2008 may also be the year that “small-c” constitutional reform died on Parliament Hill. In September, the prime minister unceremoniously brushed aside his own fixed election date legislation to seek an early dissolution of Parliament for no compelling reason.
In the context of another minority government unlikely to survive a four-year term, the likelihood is that this legislation will again be further sidelined. The question for the future will be whether it is two strikes and out for the fixed election date legislation or whether it will get a further chance to work sometime in the future.
Next, the prime minister avoided and then abandoned the reforms to the Supreme Court appointment process that he had followed for Justice Rothstein in 2006 and that he instituted for the replacement of Justice Michel Bastarache last year.
The prime minister bypassed the parliamentary committee in September prior to the election to nominate Justice Thomas Cromwell, promising at the time that the justice would appear before a parliamentary committee before taking his seat on the high court.
After the election and the prorogation of Parliament in December, the prime minister had a change of heart and had Cromwell officially appointed to the Supreme Court, to the obvious satisfaction of Chief Justice Beverley McLachlin eager to get her court back up to its full complement. It remains to be seen whether the push to reform the Supreme Court appointments process will completely fall off the political radar.
Finally, on this theme, the definition of votes of confidence was significantly expanded in Parliament in 2008. Stephen Harper’s minority government spent the first half of the year trying to lose a vote of confidence and the last half of the year trying to avoid one.
The Conservatives steamrolled over the Liberal non-opposition, leaving some to want to add an explanation mark and others a question mark after Peter Russell’s well-timed 2008 book Two Cheers for Minority Government.
At the Supreme Court, the McLachlin court completed its ninth year, marked by the surprise early retirement of Bastarache in June, leaving his seat empty for the rest of the year.
Last year, I described the 2007 term as a breakout year for the McLachlin court. In 2007, the court quietly but decisively abandoned several important and established precedents in constitutional cases and charted its own course: abandoning the common-law bar to recovery for ultra vires taxes (
Kingstreet Investments Ltd. v. New Brunswick); weakening the longstanding doctrine of interjurisdictional immunity (
Canadian Western Bank v. Alberta); and repudiating its earlier jurisprudence on the extraterritorial application of the Charter and severely restricting the circumstances in which the Charter will have effect on foreign soil (
R. v. Hape).
Finally, in what was likely the most dramatic constitutional case of 2007, the McLachlin court overruled certain aspects of the 1987 Labour Trilogy to find that the right to bargain collectively was protected under section 2(d) of the Charter (Health Services and Support-Facilities Subsector Bargaining Assn. v. British Columbia).
This past year was more subdued but with several important constitutional decisions (those readers interested in an overview of all SCC decisions should consult Eugene Meehan’s 2008 Year-in-Review SCC Newsletter).
The court continued its re-evaluation of the framework for analyzing equality claims in
R. v. Kapp with a concurrence by Bastarache, notable for its rare analysis of s. 25 of the Charter. In Dunsmuir v. New Brunswick, it finally abandoned (or did it?) the flexible and pragmatic approach to standards of review that had been frustrating administrative lawyers for years.
On national security issues, the Supreme Court played a small but not insignificant role in the continuing saga over Omar Khadr. In
Canada v. Khadr, the SCC ordered the government to disclose videotapes of Canadian officials’ interviews of Khadr at Guantanamo Bay.
On the criminal front, the court dealt a heavy blow to the government’s crime agenda by striking down a provision of the Youth Criminal Justice Act whereby youths charged with certain offences like manslaughter are presumed to face adult sentences (
R. v. D.B.). In a tandem of cases from Alberta and Ontario, the court held that the police practice of using “sniffer dogs” to ferret out drugs constituted a search under s. 8 of the Charter, however a school
principal could not invite the police to bring such dogs to hunt for drugs at a school (
R. v. A.M.) and the police cannot simply use them at bus stations without sufficient grounds (
R. v. Kang-Brown).
Finally, the court held that the federal government had been unconstitutionally collecting certain unemployment insurance premiums for years . . . but did not have to pay back those sums (
Confédération des syndicats nationaux v. Canada).
Those eager for a more in-depth review and analysis will have to wait until Osgoode’s annual Constitutional Cases conference in April and the Canadian Bar Association’s conference on “The McLachlin Court’s First Decade” in June in Ottawa.
Adam Dodek teaches at the University of Ottawa’s Faculty of Law. He can be reached at [email protected].
