POLI 478 Lecture Notes - Lecture 11: Youth Criminal Justice Act, Supreme Court Act, Canada Pension Plan
12 Jun 2018
School
Department
Course
Professor
Politics and Constitutional Litigation
The CPC Government vs. the Supreme Court
Popular narrative of hostility between Harper government and McLachlin court, allegedly stemming
from Nadon appointment controversy (Reference re. Supreme Court Act, ss. 5 and 6).
• However, even before this, there was media discussion on whether Court had eoe the real
oppositio i Ottaa
• Manfredi looked at Charter nullification + reference cases to see whether this was true
o What as CPC’s record, especially in comparison to previous govs.?
o What was its success in references (where gov. = actual initiator of litigation)?
Conclusion: trying to understand general Court-government relationship is more complicated than
siply askig, ho ay ases did the goeret lose?
Gov. which enacts legislation not often the one which defends it (e.g. Morgentaler 1988 statute enacted
by LIB1 gov., but defended by PC gov.)
• At first glance, suggests CPC gov. was not particularly singled out
• Activism under PCs understandable: SCC tackling lots of outdated laws in early Charter days
The CPC speifially teded to lose preious gos.’ attles:
• Canada (AG) v. Hislop (2007): Canada Pension Plan Act provisions struck down had been
enacted by LIB2 gov. (as part of M v. H response)
• Charkaoui v. Canada (CIC) (2007): as in Hislop, IRPA provisions had been enacted by LIB2 + lower
court proceedings began before CPC came to power
• R v. DB (2008): Youth Criminal Justice Act rulig did disrupt CPC’s o poliy
• Canada (AG) v. Federation of Law Societies of Canada (2015) + Mounted Police Association of ON
v. Canada (AG) (2015): both SCC decisions seemingly directed against policy trends, rather than
the federal gov. itself
Case for conflict: PHS, Bedford, Carter all resulted in policy losses for the CPC gov.
• In the case of PHS, it as the CPC’s o legislatio that as halleged
• Conflict particularly apparent in legislative responses: gov. hostile to PHS, Bedford outcomes
However, there were also 3 notable self-inflicted losses, all in references:
• Reference re. Securities Act (2011)
• Reference re. Supreme Court Act (2014)
o Court response essentially constitutionalized certain aspects of Act + made it difficult to
change Court structure
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Popular narrative of hostility between harper government and mclachlin court, allegedly stemming from nadon appointment controversy (reference re. Conclusion: trying to understand general court-government relationship is more complicated than si(cid:373)ply aski(cid:374)g, (cid:862)ho(cid:449) (cid:373)a(cid:374)y (cid:272)ases did the go(cid:448)er(cid:374)(cid:373)e(cid:374)t lose? (cid:863) Case for conflict: phs, bedford, carter all resulted in policy losses for the cpc gov. In the case of phs, it (cid:449)as the cpc"s o(cid:449)(cid:374) legislatio(cid:374) that (cid:449)as (cid:272)halle(cid:374)ged: conflict particularly apparent in legislative responses: gov. hostile to phs, bedford outcomes. However, there were also 3 notable self-inflicted losses, all in references: reference re. Supreme court act (2014: court response essentially constitutionalized certain aspects of act + made it difficult to change court structure, reference re. Senate reform (2014): considered term limits + adding electoral dimension to. Senate appointments: lost at qc court of appeal before reaching scc, where it also lost s. 33 (the notwithstanding clause)
