Senate appointments halted in push towards reform or abolition

Prime Minister Stephen Harper announced last Friday that he would not make further appointments to the Senate, in hopes of forcing provincial consensus on Senate reform or abolition. Prime Minister Harper has not appointed any new senators for two and half years and currently 22 of 105 seats in the Senate are vacant.

The Supreme Court of Canada ruled on Senate reform in 2014 in Reference re Senate Reform, holding that the abolition of the Senate would require the unanimous consent of the Senate, the House of Commons, and the legislative assemblies of all the provinces, in accordance with section 41 of the Constitution Act, 1867.

An application filed by lawyer Aniz Alani at the Federal Court is seeking a declaration that the prime minister has a constitutional obligation to fill vacancies within a reasonable time. Alani stated he would drop the case if the Prime Minister referred the matter to the Supreme Court. Updates to the case can be read here.

British Newspaper Alleges Scotland Yard Breached Rights

Three reporters at The Sun newspaper have filed a complaint with the Investigatory Powers Tribunal (IPT), alleging that London’s Metropolitan Police breached their human rights.

The complaint stems from the police investigation of a leak which led to the resignation of the Chief Government Whip. Andrew Mitchell, a Conservative MP and Chief Government Whip for the Government of David Cameron, allegedly insulted and swore at a police officer on duty guarding 10 Downing Street, the Prime Minister’s office. The scandal, referred to as “plebgate”, led to Mr. Mitchell’s resignation as Whip.

A report of the altercation was leaked to reporters at The Sun tabloid. The Metropolitan Police Service sought to identify the source of the leak. To carry out its investigation, the police service accessed the phone records of the three journalists at The Sun.

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Staffing shortages lead to more lockdowns in Ontario jails

The recent staffing shortage of correctional officers has led to a rapid increase in lockdowns across the province. Last year, there were over 900 lockdowns due to staffing issues – tripling 2009’s rate of 259. These figures solely reflect lockdowns triggered by staffing shortages. They do not include lockdowns caused by security breaches, transfers of high-risk prisoners, violence, or contraband.

The staffing shortage began in 2010 when Ontario put in place a hiring freeze. In addition to the freeze, the province beefed up aspects of the hiring process for correctional guards, changing the manner in which background checks are conducted. The province began hiring again in 2014, but have yet to hire enough to meet current demands.

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SCC: Federal Court has jurisdiction to deny Judicial Review

The Supreme Court’s recent ruling in Strickland v Canada will ensure that all potential applicants think twice before going to the Federal Court with a judicial review challenge.

The ruling in Strickland involves a divorce case from Alberta in which the appellant, Robert Strickland, challenged the validity of federal Child Support Guidelines under the Divorce Act, arguing that the regulations were inconsistent with the legislation. Strickland sought a judicial review at the Federal Court of Canada.

The court denied application for review, arguing that it had little experience in family law matters and was an inappropriate forum. Subsequently, the applicants turned to the Federal Court of Appeal, arguing that the lower court’s reasoning was insufficient to deny the review.

In the Court’s reasoning, Justice Thomas Crowmwell considered the jurisdictional question of whether Provincial Superior Courts possess the jurisdiction to rule on the validity of federal regulations. In addition, the Court also raised the more administrative law question of whether the Federal Court erred by declining to hear the appellants’ judicial review application.

With respect to the jurisdictional question, the Court explicitly recognized that provincial superior courts have jurisdiction to address the validity of the federal regulations where doing so is a necessary step in resolving the case.

Additionally, the Court affirmed the discretionary nature of judicial review, stating that:

The appellants’ position that they are entitled to a ruling on the legality of theGuidelines through a judicial review is fundamentally at odds with the discretionary nature of judicial review and with the broad grounds on which that discretion may be exercised. The appellants do not have a right to have the Federal Court rule on the legality of the Guidelines; the Federal Court has discretion to do so, which it has decided not to exercise. . . .

The Court, in emphasizing the importance of a forum’s suitability for review, noted that even if the Federal Court were to declare the federal regulations to be invalid, such a declaration would not bind the provincial superior courts which could continue to apply them until successfully challenged in those courts.

External panel for consultations on physician-assisted death created

Catherine Frazee, Dr. Harvey Max Chochinov, and Benoît Pelletier are the members of an external panel, announced by the federal government today, which will conduct roundtable discussions on the issue of physician-assisted death.

Last February, the Supreme Court of Canada unanimously held in Carter v. Canada (Attorney General) [Carter] that Criminal Code provisions which prohibited physician-assisted dying violated section 7 of the Canadian Charter of Rights and Freedoms. The Supreme Court issued a declaration of invalidity and suspended the law for 12 months, giving Parliament and provincial legislatures the option of enacting legislation that would be constitutional.

The panel will consult with medical authorities and interveners in Carter, as well as the Canadian public through an online consultation. Justice Minister Peter MacKay listed faith-based interests and disabilities communities as examples of stakeholders whose perspectives would be sought.

Minister MacKay indicated that the government would request an extension beyond the 12 months given by the Supreme Court. The panel will provide a final report to the Ministers of Justice and Health to assist the government in forming a legislative response to the Supreme Court’s decision. The report is expected to be ready by late Fall 2015.

Visit the site of the External Panel on Options for a Legislation Response to Carter v. Canada here

Northwest Territories Electoral Boundaries

Controversy surrounds the electoral boundaries in the Northwest Territories.

In 2013, the Northwest Territories Electoral Boundaries Commission presented its report on possible changes to electoral districts represented in the territorial legislature. The Commission proposed three possible scenarios: an 18-member assembly, a 19-member assembly, and a 21-member assembly.

After receiving the Commission’s report, the Legislative Assembly of the Northwest Territories voted 10-7 to maintain a 19-member legislative assembly in 2013. Again in 2014, the Assembly favoured this proposal with a vote of 11-7.

This decision met with vocal opposition and is now being challenged in court.

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Federal government emphasizes Canadian values with passage of the Zero Tolerance for Barbaric Cultural Practices Act

Bill S-7 (Short Title: Zero Tolerance for Barbaric Cultural Practices Act) received royal assent and became law on June 18, 2015. The bill was introduced in the Senate in November 2014 and amends immigration, family, and criminal law, targeting polygamy, early and forced marriage, and “honour”-based violence.

Both Citizenship and Immigration Minister Chris Alexander and Minister of Justice Peter MacKay expressed the Government’s commitment to protect women and girls from violence. However, some organizations have expressed concern about the necessity of the legislation, the lack of expert and public consultation on the bill, and the inflammatory language and cultural framing of the bill. Others call for further action in the form of training for frontline professionals.

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Former inmate points to province for breaching solitary confinement rules

The Ministry of Community Safety and Correctional Services has allegedly violated their settlement with former inmate, Christina Jahn, who is now seeking legal action against the province.

In 2011, Jahn spent a total of 210 days in solitary confinement at the Ottawa-Carleton Detention Centre. Jahn suffered, and remains to suffer, from mental illness and terminal cancer. She did not receive adequate treatment for her health conditions while in segregation and recalls her time there as “brutal and humiliating.” Jahn was serving sentences for charges including theft, mischief, resisting arrest, and causing a disturbance.

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British Government Illegally Spied on Amnesty International

In an ironic twist, it has been revealed that the government of the United Kingdom has been spying on the human rights watchdog, Amnesty International.

The Government Communications Headquarters (GCHQ), the primary signals intelligence agency of the British government, had illegally retained communications it had intercepted from Amnesty International for longer than was permitted under the Regulation of Investigatory Powers Act.

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Aboriginal Offenders Serve More Time Before Being Paroled

The Correctional Service of Canada (CSC) has released a report entitled Corrections and Conditional Release Statistical Overview.

Among its many findings, the report showed that aboriginal offenders serve more time on average in prison before they are paroled.

Parole is an important part of rehabilitation and social reintegration. As Lydia Bardak, a spokesperson for the John Howard Society, said, “Releasing someone at the end of their sentence does not make a safe community.”

Aboriginal offenders are more likely to spend their entire sentence in prison than non-aboriginal offenders. They are thus at a disadvantage as compared to their non-aboriginal peers.

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