[Canada] Canadian Politics Redux

[Josephus]

Serious question for you lawyers.

Why does an Ontario Court ruling effect  the elections act, and a national issue?


http://www.thestar.com/news/canada/2015/07/20/no-voting-rights-for-long-term-canadian-expats-ontario-court-rules.html

[crazy canuck]

The answer is lengthy but basically the answer is this did not proceed through an "Ontario" Court.  It proceeded through a Federally appointed Court situated in Ontario. 

[Josephus]

Is this wrong then (from a story i'm editing)

  Though the Court of Appeal decision technically only applies to Ontario, O'Brien said Elections Canada will likely implement the new decision nationwide, as it did with the Superior Court decision in 2014.  "It would be treated as precedent across the country."

[crazy canuck]

No that is correct.  The ruling is only binding in Ontario.  The only Court that binds the whole country is the SCC.  But the judgement is very pursuasive which explains why the parties challenging the legislation commenced their proceeding there.

[Josephus]

thanks CC

[crazy canuck]

A bit more background for you is that years ago there was a constitutional challenge commenced in BC to the Federal Election Act restriction on publishing election results from regions where polls had already closed in regions where the polls had not yet closed.  The challenge was successful at the British Columbia Supreme Court and Elections Canada decided to lift the ban for the next Federal election.  After that election an appeal was heard in the BCCA which overturned the decision. An appeal to the SCC was unsuccessful on a 5-4 split and the restriction has remained in place until this new legislation removed it.

[Josephus]

Right, yes, I remember that.

[crazy canuck]

Rather than promise to abolish the senate, like the NDP (although unlikely because of the need to get Provincial approval) the Conservatives are promising not to appoint any more senators.  The problem with that is I think there is a very persuasive argument that there is a constitutional requirement that the Federal Government appoint senators pursuant to the formula set out in the Constitution.  Otherwise the representation of the Provinces would be skewed in an unconstitutional manner depending on who dies/leaves that office.

[viper37]

the Conservatives are promising not to appoint any more senators.

Technically, and they insist on it it is "[...]until the Senate is reformed".
Of course, the problem lies in the fact that they don't want to reform it, or at least are not proposing anything, and it kinda falls on them since no matter what the provinces proposes, it's up to the Feds to submit a constitutionnal amendment.

The strategy here seems to annoy the provinces so much that they'll themselves push for its abolition.

[crazy canuck]

the Conservatives are promising not to appoint any more senators.

Technically, and they insist on it it is "[...]until the Senate is reformed".
Of course, the problem lies in the fact that they don't want to reform it, or at least are not proposing anything, and it kinda falls on them since no matter what the provinces proposes, it's up to the Feds to submit a constitutionnal amendment.

The strategy here seems to annoy the provinces so much that they'll themselves push for its abolition.

I disagree.  It is the other way around.  They Federal government cannot do anything without the approval of the Provinces.  That is the clear decision of the SCC in the reference case.  I have no doubt that Harper really did want to create a triple E senate.  But without Provincial approval that is impossible.  He then asked the SCC to determine the limits of his appointment power in the reference.  The Court essentially said there is no wiggle room.

It is for that reason that I think any challenge to his present position will be successfully challenged if the conservatives win the next election.  But I am not sure who would have an interest in making such a challenge.

[Josephus]

He's also said though that if elected he may have to appoint more senators in order to pass laws

However, Harper added a caveat that if the Conservatives continue in government, he might have to name senators in the future to ensure passage of legislation.

http://www.thestar.com/news/canada/2015/07/24/stephen-harper-imposes-moratorium-on-senate-appointments.html

So, I don't know, is this more than just an empty election gesture?

[crazy canuck]

So, I don't know, is this more than just an empty election gesture?

Yeah, with his additional caveat, I agree it is exactly that.

[Josephus]

You're up early  Busy weekend?

[crazy canuck]

You're up early  Busy weekend?

Yeah,

Lots of work to finish up.  But this is generally my habit on Weekends.  Get to the office early and the go home when everyone is waking up.  No point in me thrashing about the house when everyone is sleeping.

[viper37]

the Conservatives are promising not to appoint any more senators.

Technically, and they insist on it it is "[...]until the Senate is reformed".
Of course, the problem lies in the fact that they don't want to reform it, or at least are not proposing anything, and it kinda falls on them since no matter what the provinces proposes, it's up to the Feds to submit a constitutionnal amendment.

The strategy here seems to annoy the provinces so much that they'll themselves push for its abolition.

I disagree.  It is the other way around.  They Federal government cannot do anything without the approval of the Provinces.  That is the clear decision of the SCC in the reference case.  I have no doubt that Harper really did want to create a triple E senate.  But without Provincial approval that is impossible.  He then asked the SCC to determine the limits of his appointment power in the reference.  The Court essentially said there is no wiggle room.

It is for that reason that I think any challenge to his present position will be successfully challenged if the conservatives win the next election.  But I am not sure who would have an interest in making such a challenge.

they can't do anything without the provinces, but the provinces can not propose a constitutional change, IIRC.  Well, they can propose all they want, but to get it ratified and change the constitution, it requires the Federal government, right?