UTGB Vol 5.pdf - Robson Hall Faculty of Law

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6 Underneath the Golden Boy IV.THE CoNSTITUTIONALITY QuESTION Concerns have been raised about the constitutionality of fixed date election legislation. The nature of these concerns and an explanation of why they do not apply to fixed date election legislation will be discussed. A. The Office of the Lieutenant Governor Section 41(a) of the Constitution Act, 1982 28 requires unanimous consent from the Senate, House of Commons and each province's Legislative Assembly for any laws that infringe on the office of the Governor General and the Lieutenant Governor. This poses a problem for fixed date election legislation, some critics argue, because such a law removes the Queen's representative's Royal Prerogative to dissolve or prolong Parliament at any point. 29 While the prime minister or premier provides the necessary advice to the Queen's representative (which gives the government the power to set election dates in practice), constitutional convention holds that the Lieutenant Governor or Governor General is always free to unilaterally oppose this advice. 30 Thus, it is argued, any attempt to force the Queen's representative to either call an election or to prolong Parliament infringes on the "office of the Lieutenant Governor" or Governor General set out in the Constitution. This has been argued by Eugene Forsey: Any provincial act attempting to set up such a system would certainty be held void, being ultra vires, since the B.N.A. Act expressly prohibits the legislature from touching 'the Office of the Lieutenant Governor.' Undoubtedly the legal power to dissolve the legislature at any moment is part of 'the Office of the Lieutenant Govemor.' Hence, any attempt to curtail that power would be beyond the powers of the legislature, and could be validated only by an amendment to the British North America Act. 31 Amendment Act (Set Date Elections), Jd Sess., 38r 11 Leg., Manitoba, 2005. Both bills did not pass first reading. 28 Constitution Ace, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. 29 See, for example, the works of former Canadian senator and constitutional expert Eugene Forsey. Forsey adamantly opposed any attempts at fixed date election legislation on the grounds that it infringed on the office of the Queen's representative. 30 Such an event is rare, but it has occurred in Canada. In 1925, Governor General Lord Byng refused then Prime Minister Mackenzie King's request for dissolution of Parliament and instead asked the opposing Taries, led by Arthur Meighen, to form government. 31 Eugene Forsey, "Extension of the Life of Legislatures 11 (1960) 26 Canadian Journal of Economics and Political Science 604 at 609.
The Constitution Act, 1982 32 and the Constitution Act, 186i 3 both set the maximum life of Parliament at five years. Fixed date election legislation in place across Canada, meanwhile, simply reduces the maximum duration of Parliament to four years. This reduction does not offend constitutional provisions, nor does it require unanimous amendment from the Senate, House of Commons and provincial Legislative Assemblies. This is because, as will be seen below, changes made by fixed date election legislation fall outside the office of the Lieutenant Governor. B. Parliament's Maximum Shelf Life: Outside the Office Considerable discussion has developed over the question of whether fixed date election legislation infringes on the Royal Prerogative held by the Queen's representative. Constitutional law expert Peter Hogg has given federal fixed date election legislation cautious approval, but his reasoning rests on somewhat creative grounds. 34 Essentially, the argument is this: legislation cannot remove the ability of the Queen's representative to dissolve Parliament, thus the Lieutenant Governor or Governor General always retains the ability to refuse the premier or prime minister's advice to call an election because the legislation expressly preserves the Royal Prerogative. Seen this way, the legislation should be viewed as mere persuasive language that forces the premier or prime minister to ask the Queen's representative for an election-as opposed to forcing the Queen's representative to grant one. There is another simpler answer to the constitutionality question. As has been previously mentioned, the most significant change created by fixed date election legislation is the reduction of Parliament's maximum duration from five years to four years. Fixed date election legislation does not remove the ability of the Queen's representative to call a premature election because constitutional realities--such as the confidence convention-require this to be so. 35 As a result, the law could only be unconstitutional if it forces the Queen's representative to call an election in a manner that offends the Royal 32 Canadian Charter of Rights and Freedoms, s. 4(1), Part I of the Constitution Act, 1982, supra note 28. 33 Constitution Act, 1867 (U.K.), 30 & 31 Viet., c. 3, s. 50, reprinted in R.S.C. 1985, App. II, No.5. 34 Peter W. Hogg, Constitutional Law of Canada, 5th ed. (Scarborough, Ont.: Thomson Carswell, 2005) at 281. In an explanatory footnote related to B.C. fixed date election legislation, Hogg states that: "In order to avoid the possible invalidating effect of s. 41(a) of the Constitution Act, 1982 ... it might have been preferable to frame the statute as a directive to the Premier to provide the requisite advice for a dissolution in time for the fixed election dates. Perhaps the statute could be read in that fashion in order to avoid any constitutional doubt. 11 35 House of Commons Debates (18 September 2006), supra note 13 at 2876 (Hon. Rob Nicholson).
Page 1 and 2: Underneath the Golden Boy Volume V
Page 3 and 4: Underneath the Golden Boy contents
Page 5 and 6: Introduction Academic commentary in
Page 7 and 8: Fixed Date Elections BRYAN SCHWARTz
Page 9 and 10: • Stockwell Day was elected leade
Page 11: date and provide for elections ever
Page 15 and 16: No one really supposes that there i
Page 17: duration without infringing on the
Page 20 and 21: 14 Underneath the Golden Boy comple
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Page 34 and 35: 30 Underneath the Golden Boy III. A
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Page 40 and 41: 36 Underneath the Golden Boy A. The
Page 42 and 43: 38 Underneath the Golden Boy D. Inc
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Page 46 and 47: 42 Underneath the Golden Boy It fol
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Page 53 and 54: Employment Standards that Work for
Page 55 and 56: I. lN1RODUCTION We commend the Mani
Page 57 and 58: • The need for employment equity
Page 59 and 60: The Supreme Court of Canada has sai
Page 61 and 62: To be clear, those most in need of
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When asked about their decision to
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dealing with inequality of bargaini
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.c.mptoyment .)Umaaras mat worK. JO
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Averaging agreements are often soug
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B. Exclusions from the Code The Dis
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a 1995 employment standards decisio
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unjustified breach of the agricultu
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other important matters relating to
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entitled to at least one week per y
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that such deductions can never be p
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that their initial experiences with
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A growing portion of the labour for
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Response to Consultation Paper on F
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protects individuals, already has a
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Pizza Ltd., 18 demonstrated that fr
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assets are often at risk through th
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over its investment as the determin
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no later than 60 days after receivi
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franchisee's decision to purchase w
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franchisor's legal history. However
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------------------ ·---- the other
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time, including a wrap will allow f
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during and after the term of this a
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selection documents from the defini
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Section 11 of the Regulations Made
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itter experience for all concerned.
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This decision is of particular impo
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A right of action should also be gr
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easonable time to remedy the breach
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different renewal provisions in sev
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Iowa and allow non renewal only whe
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training; (3) the section in a subs
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Although implementing a regulatory
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contains numerous lawsuits commence
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agreement was that disputes should
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in the regulations, the ULCC create
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for appointing the mediator; place
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Disclosure)2000, P.E.I!sFranchises
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In contrast to all Canadian franchi
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adopting franchise legislation, Man
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Manitoba should require a tran.clh,
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5. Exemptions: • Is the ability t
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1-'1--'1- Underneath the uolden boy
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146 Underneath the Golden Boy II. B
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148 Underneath the Golden Boy enact
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150 Underneath the Golden Boy that
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152 Underneath the Golden Boy even
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154 Underneath the Golden Boy weari
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156 Underneath the Golden Boy has f
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158 Underneath the Golden Boy and C
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And Justice for All-Bill 47, The Le
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law. In principle legal aid dates b
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such groups. 18 After the opening o
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addressed the cutbacks that had bee
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incorporating greater detail into h
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:t HC LtgUl UU ;JC I V'CtJ ;JOC LJ
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4. Legal Aid Lawyers' Association -
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The committee examined and passed e
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implementation of a change and/or a
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Mr. Currie has concluded that quali
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Bill 34, The Highway Traffic Amendm
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(a) a person's death is alleged to
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suspended for one year after the fi
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from Manitoba Justice's Policy, Dev
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.1. ne rugnway L TU.JJlC .n.rnenu.m
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1ne ntgnway 1 TaJJlC fi.menament r\
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provide advice for separated or div
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leads one to think that the primary
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A Prescription in the Public Intere
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people who would advance therapies
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or prevailing practice. The likely
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III. PRACTICAL CONSEQUENCES OF BILL
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treat someone with bipolar depressi
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1ne LVtemcm 1"\.menamem; 1"\.cr LU1
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several personal accounts of succes
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V. CRITIQUES OF BILL 207 Finding ef
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stresses that the College has two p
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would be an extension of that." 79
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when public glare does not intrude.
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Appendix: Private Members' Public B
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Table 2:Sponsors, Titles and Passag
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224 Underneath the Golden Boy The S
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226 Underneath the Golden Boy in th
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228 Underneath the Golden Boy would
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230 Underneath the Golden Boy the a
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232 Underneath the Golden Boy excep
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234 Underneath the Golden Boy IV. C
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236 Underneath the Golden Boy II. A
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238 Underneath the Golden Boy premi
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240 Underneath the Golden Boy expre
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242 Underneath the Golden Boy conse
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244 Underneath the Golden Boy Oppos
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246 Underneath the Golden Boy subsi
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248 Underneath the Golden Boy C. Th
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250 Underneath the Golden Boy impor
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Bill 7, The Architects and Engineer
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is really the following: which jobs
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contacted in this case, and when th
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• To provide clarity and certaint
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them at all. In factt he explained
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The proposed change from < supervis
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E. Report Stage Amendments On 29 No
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design in one jurisdiction may not
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power has been given to the Joint B
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implementation to give the MAA time
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Bill 207, The Personal Information
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codification of the principles and
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C. History in the Legislature The b
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Like PIPEDA, PIPITPA requires organ
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• The Commissioner gives a nonbin
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.. , u:; .1. t:, wrt'u mrorman:on r
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e subject to both pieces of legisla
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J.rtt: r ·• muu mrormatzon rro1:
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that time. 91 The review process is
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at "fine,tuning" PIPEDA to harmoniz
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Bill Title Sponsor Type Notee¥ H.B
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Bill Title Sponsor Type Notedl RB.
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Bill Title Sponsor Type Notecf H.B.
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BiD Title Sponsor Type Notedl H.B.z
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Bill No. Title Sponsor Type Notecfl
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Bills Passed in the 4th Session of
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Bill Title Sponsor Type Noted'- H.B
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Bill Title Sponsor Type Noted 1 H.B
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BiD Title Sponsor Type Noted H.B. 2
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Bill Title Sponsor Type Noted H.B.
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Bill No. Title Sponsor Type Notecf
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AppendixC Bills Passed in the 5th S
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Bill No. Tidel Sponsor Type Note£1
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Bill Tide 1 Sponsor Type Note" H.B.
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Bill Tide'- Sponsor Type Noteif H.B
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Bill Tide 1 Sponsor Type Noted - H.
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Dlll !ttle' Sponsor Type Note& H.B!
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