How Will This Work? or Did the Supreme Court Pull a Fast One?

Yesterday the Supreme Court of Canada found (ruling is here) that a number of provisions criminalizing aspects of prostitution trade (apparently selling sex for money itself isn't illegal in Canada) were contrary to provisions in the Canadian Charter of Rights and Freedoms.  Instead of immediately declaring the offending provisions illegal the court gave parliament a year to enact new provisions before the current provisions will become inactive.

I can't help but wonder if suspending the declaration that these provisions are unconstitutional for a year isn't something of a fiction?  Are these provisions not basically already dead?

Even if the laws are still theoretically in force has the highest court in the land not just provided a perfect defense for anyone for anyone charged under these rules?  Maybe more to the point, would a prosecutor ever consider bringing charges once the Supreme Court of Canada guaranteed there to be no chance of a successful conviction?

And maybe this part is a stretch, but are the police going to be inclined to even arrest people using these provisions if the chance of prosecution is slim?  Might many police forces decide to use their resources on more promising endeavours until this matter has been clarified with either new law or a clear lapsing of these provisions?

And as laws tend not to apply retroactively, might the period of time from yesterday until a new law is passed or the provisions clearly lapse be something of a Wild West/Renaissance for prostitution in Canada?

I'd be really curious to know if there's something about this ruling that I've missed or if some part of my analysis is way off because as it is I can't yesterday's ruling isn't much more significant than has been previously suggested.

And I should also note that it would seem to me that a similar situation might arise every time the Supreme Court finds a provision unconstitutional but suspends the implementation of their order.  Is the suggestion that the law is still in effect (despite zero chance of a successful conviction) so powerful to continue to discourage the behaviour in question, whatever that behaviour might be, or is the delay really as much of a fiction as it seems?

Big week for the federation

Earlier this week news came out that Ottawa was, at least to some extent, relinquishing its use of the spending power to shape national health policy.  The likely eventual consequence of such a decision is that provinces will have more flexibility in terms of the structure their public healthcare systems.  Of course whether such changes in the way provincial programs are funded actually will lead to many changes (or more divergence than we already see) is not yet known.

And now today one of the federal government's big centralizing moves, the creation of a national securities regulator, seems to have been quashed by the Supreme Court of Canada.  Or as they put it:

The  Securities Act as presently drafted  is not valid under the general branch of the federal power to regulate trade and commerce under s. 91(2) of the Constitution Act, 1867. 

 Or if you want a slightly more detail rich version of their position:

In sum, the proposed Act overreaches genuine national concerns.  While the economic importance and pervasive character of the securities market may, in principle, support federal intervention that is qualitatively different from what the provinces can do, they do not justify a wholesale takeover  of the regulation of the securities industry which is the ultimate consequence of the proposed federal legislation.  A cooperative approach that permits a scheme recognizing the essentially provincial nature of securities regulation  while allowing Parliament to deal with genuinely national concerns remains available and is supported by Canadian constitutional principles and by the practice adopted by the federal and provincial  governments in other fields of activities.

Anyway, though it may be too early to tell how the healthcare funding changes play out, it looks as though this has been a pretty good week for a decentralized federation.  Of course, if you aren't a particularly big fan of Canada being a decentralized federation and are all about national standards this may have been one of the worst weeks for you in many years.

No matter where you stand on the centralization/decentralization debate, at least you will all now have good grist for the conversation mill this holiday season.

A big week for federal appointments

It seems that just a little while ago Harper announced the replacement for outgoing Auditor General Sheila Fraser. Michael Ferguson, Deputy Minister and former Auditor General in New Brunswick, will be the government's nominee.

What seems immediately notable about Mr. Ferguson is that he seems to have spent most, if not all, of his career in a variety of jobs in public service in New Brunswick. This is in contrast to Ms. Fraser who spent a years working in a number of capacities, including in the Office of the Auditor General, before she became the Auditor General. While I know next to nothing about Mr. Ferguson, it does seem at least noteworthy that an internal candidate was not the nominee.

The other big appointment news of the past few days were the two Supreme Court of Canada nominations from last week.

I found the following passage from Harper's press release on the subject particularly noteworthy.

Both candidates were highly recommended to the Prime Minister and the Minister of Justice and Attorney General of Canada following comprehensive consultations with the Attorney General of Ontario, senior members of the Canadian Judiciary, prominent legal organizations and members of the public.

Even if these appointments are 'Ontario appointments' it seems a little strange that Ontario was the only province consulted on the matter. Even if the appointees are to come from Ontario (a practice that might need review given than in more than 60 years Newfoundland has never had a judge on the court), their rulings will impact the entire country. Thus broader consultation seems justified if not essential.

Democracy in Canada

So you think the Canadian constitution is a bit strange because it omits a number of key features (like the existence of a Cabinet)? It turns out that you are not alone, the Supreme Court of Canada in the Secession Reference has noted similar omissions, in particular any specific reference to the fact that Canada was to be a democracy. On the other hand, they do suggest that

the democracy principle can best be understood as a sort of baseline against which the framers of our Constitution, and subsequently, our elected representatives under it, have always operated. It is perhaps for this reason that the principle was not explicitly identified in the text of the Constitution Act, 1867 itself. To have done so might have appeared redundant, even silly, to the framers.

It is comforting to know that so much of a country's constitution is just assumed. There is no way that such a practice could ever go wrong.

Reallocation of powers: Aquaculture style

A few days ago I was listening to CBC Radio One and happened to hear a story about a recent Supreme Court of Canada ruling (there is this one too). It seems that the Court found that fish farms, or aquaculture facilities, should be fall under federal jurisdiction, though for more than 20 years this area had been administered by the provinces. The federal government has been given a year to take over.

As far as I can tell this hasn't received all that much attention, though I don't now why. Firstly, this seems to be one of the biggest division of powers cases in the past few years (at least as far as I can remember). Secondly, neither the provinces nor the federal government were looking for this change, it came about because of third party litigation. Thirdly, this likely means a big shake-up in the various federal and provincial ministries. All of a sudden a number of provinces have capacity in a an area that is no longer in their jurisdiction, and the federal government has to scramble to put in place this capacity.

On top of all of this, there is the issue that started the controversy in the first place, which is the charge that aquaculture poses environmental threats to native fish populations, among other problems. Though not a juicy story in the traditional sense, it might be worth seeing how such a change impacts the aquaculture industry (as there will presumably be newly implemented national standards) and the relationship of provincial governments with the aquaculture sector.

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