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The Language of Canadian Politics

A Guide to Important Terms and Concepts, 4th edition

$34.95 Paper / ISBN-10: 0-88920-503-5 / ISBN-13: 978-0-88920-503-1 / 428 pp.

John McMenemy

SUPPLEMENT 2006--2007

The fourth edition of The Language of Canadian Politics comprises over 500 brief, cross-referenced essays on a wide range of topics. This Supplement 2006--2007 informs readers of recent and significant events respecting items described and discussed in the book.

Recent events are frequently relevant to a cluster of entries in The Language of Canadian Politics. In these cases, the ten entries highlighted in the Contents below are the primary matters discussed; the entries not highlighted are relevant to the highlighted Supplement entries as indicated by the "See..." instruction.

In the body of the Supplement, several of the ten main headings are followed by subheadings. These subheadings refer to entries found in the fourth edition, some of which can also be found here in the Supplement.

This Supplement also includes relevant Internet URLs, or websites. The Introduction of The Language of Canadian Politics contained caveats about Internet URLs. Those caveats here apply as well.

In summary, the information in the Supplement suggests the importance of the outcome of the 2006 federal election in which the Conservative party, the newly united political right in Canada, formed a minority government, as well as the continued importance of the judicial review of the conformity - or otherwise - of government legislation to the Canadian Charter of Rights and Freedoms.

    Accountability
    Anti-Terrorism Act, 2002
    Canadian Charter of Rights and Freedoms (1982). See also Anti-Terrorism Act, 2002; National Security Certificate (NSC); Security of Information Act (Canada)
    Clarity Act (on secession from Confederation). See Liberal party
    Commissions of inquiry (judicial). See Security of Information Act (Canada)
    Conflict of interest. See Accountability
    Electoral law (control, subsidies). See Accountability
    Ethics Commissioner. See Accountability
    Freedom of information. See Accountability; Security of Information Act (Canada)
    Gay and lesbian Rights
    Judicial review (interpretive; non-interpretive). See Anti-Terrorism Act, 2002; Canadian Charter of Rights and Freedoms (1982); National Security Certificate (NSC); Security of Information Act (Canada)
    Law Commission of Canada
    Leadership conventions (selection). See Liberal party
    Liberal party
    Lobby (-ist; -ing). See Accountability
    Mass media of communication. See Security of Information Act (Canada)
    National Security Certificate (NSC)
    Notwithstanding (non obstante) clause (Canadian Charter of Rights and Freedoms, s.33). See Gay and lesbian rights
    Parti Québécois (PQ)
    Royal Canadian Mounted Police (RCMP). See also Security of Information Act (Canada)
    Security of Informaion Act (Canada)
    Secession Reference. See Liberal party
    Supreme Court of Canada. See Canadian Charter of Rights and Freedoms (1982); National Security Certificate (NSC)

Accountability

    Conflict of interest.
    Electoral law (controls, subsidies).
    Ethics Commissioner.
    Freedom of information.
    Lobby (-ist; -ing).

In 2006, parliament enacted the wide-ranging Federal Accountability Act touching on policy and laws relating to the above items. The Act also included protection for officials who allege government misconduct ("whistleblower" protection), and new offices and administrative procedures respecting government spending estimates, expenditures and procurements. Various established and new officers of parliament (auditor general, commissioners of Information, Privacy, Lobbyists, Public Service Integrity) would be appointed on the basis of majority vote by the House of Commons.

Although the Act comprised many significant statutory changes that took effect in 2007, other provisions in the Act awaited the Conservative government's formal implementation. Also, critics of the Act observed that the conflict of interest rules were weakened. Search "Federal Accountability Act" to access the federal government's overview of the legislation. Democracy Watch, a nongovernmental public interest organization, provides a detailed analysis of the Act ( www.dwatch.ca/camp/BillC-2Analysis.html.))

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Anti-Terrorism Act, 2002

    Canadian Charter of Rights and Freedoms (1982)
    Judicial review (interpretive; non-interpretive).

Following the terrorist attacks in the United States in 2001, parliament enacted the Anti-Terrorism Act ( http://laws.justice.gc.ca/en/A-11.7/index.html/?noCookie). The legislation was significantly affected by judicial review in 2006 and parliamentary action in 2007.

In 2006, the Ontario Superior Court ruled that the definition of terrorism in the Anti-Terrorism Act violated section 2 (freedom of religion, thought, belief, opinion, expression and association) of the Canadian Charter of Rights and Freedoms by introducing motive ("why" in this case ideological, religious or political purpose or cause) to establish (or excuse) a criminal action, and could not be saved by section 1 ("reasonable limitation") R. v Khawaja). While some argued that the core of the act had been nullified, others argued that the law was strengthened by removal of a section (motivation) that would be difficult to establish.

There was general agreement, however, that parliament's refusal in 2007 to renew two key aspects of the Act, preventive arrests and secret investigative hearings, was important. The Act allowed police to arrest anyone without a warrant and detain them for three days without charge if authorities believed a terrorist act might be committed. A secret investigative hearing before a judge would compel a person to testify about personal associations and possible pending actions.

The sections on preventive arrests and investigative hearings were so heavily criticized during deliberations on the proposed Act that its adoption in 2002 included "sunset" provisions for both measures; that is, they would cease to have effect unless renewed by parliament within five years. Although neither section of the Act had been used since its enactment, a parliamentary committee in 2006 recommended a five-year renewal. The minority Conservative government's legislation to renew the measures was defeated when all three opposition parties--but notably the Liberal party which had proposed the measures when in office in 2002--rejected renewal.

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Canadian Charter of Rights and Freedoms (1982)

    Judicial review (interpretive; non-interpretive).
    Supreme Court of Canada.

A Charter of Rights and Freedoms ruling by the Supreme Court of Canada in 2007 rejected earlier rulings that virtually denied a Charter-based right to collective bargaining in the workplace under freedom of association (s.2). For example, in 1987 the Court ruled that the Charter "does not vest independent rights in the group. People cannot, by merely combining together, create an entity which has greater constitutional rights and freedoms than they, as individuals, possess" (Re Public Service Employees Relations Act (Alberta). However, in Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007 the Court ruled that freedom of association "includes a procedural right to collective bargaining. The grounds advanced in the earlier decisions of this Court for the exclusion of collective bargaining from the s.2(d)'s protection do not withstand principled scrutiny and should be rejected."

According to the 6--1 ruling, "long before the present statutory labour regimes were put in place, collective bargaining was recognized as a fundamental aspect of Canadian society, emerging as the most significant collective activity through which freedom of association is expressed in the labour context." Thus, freedom of association enshrined in the Charter "may properly been seen as the culmination of a historical movement towards the recognition of a procedural right to collective bargaining." The right of workers to bargain collectively "as part of their freedom to associate reaffirms the values of dignity, personal autonomy, equality and democracy that are inherent in the Charter." In addition, the ruling was consistent with rights and protections enshrined in international documents ratified by Canada.

The ruling dealt with parts of British Columbia's legislation in 2002 that substantially altered an collective agreement with public sector workers in health care and social services. The Court granted the province one year to bring its legislation into conformity with the ruling.

Some people might argue that this ruling on collective bargaining rights illustrates the Supreme Court's liberal orientation respecting rights "inherent in the Charter." However, the ruling is treated as the culmination of "a historical movement," suggesting a conservative orientation to the interpretation of Charter rights.

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Gay and lesbian rights

    Notwithstanding (non obstante) clause (Canadian Charter of Rights and Freedoms, s.33).

In 2007, Conservative Prime Minister Stephen Harper acted on a 2006 election campaign promise to allow the House of Commons a debate and a vote free of party discipline on the 2005 Civil Marriage Act that defined marriage to be a union of two consenting adults, eliminating reference to gender and thus permitting same-sex couples to marry. However, rather than present legislation to define marriage as a union between a man and a woman, Prime Minister Harper, heading a minority government, presented a motion calling for the government to introduce such legislation. When the motion was defeated (175--123), the prime minister declared the issue closed.

The Conservative leader's move was intended to satisfy his social conservative support base that opposed same-sex marriages, but also supported more free votes in the Commons. The prime minister was no doubt also aware of the need to enlarge his party's support base, especially in large urban areas where the public was generally more sympathetic to minority rights, including gay and lesbian rights in this matter. Prior to the Liberal government's legislation in 2005, the exclusion of same-sex marriage had been declared unconstitutional by court decisions based on the Canadian Charter of Rights and Freedoms. A seriously committed move by Prime Minister Harper would have been legislation to reinstate gender in the definition of marriage using section 33 of the Charter, the legislative override ("notwithstanding" clause).

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Law Commission of Canada

In 2006, the minority Conservative government announced cessation of funding for the Law Commission of Canada, effectively abolishing the independent agency established to study and advise parliament on improvements to Canadian law based on public consultations and expertise drawn from various academic disciplines. The federal government appointed the commissioners and funded the Commission. The commission had been terminated by a Conservative government in 1992, but through legislation, and then restored by a Liberal government in 1997. The government also terminated the Court Challenges program that since the 1980s had funded human rights cases based on the Canadian Charter of Rights and Freedoms.

In defence of the commission, an open letter from lawyers, law professors and social activists located across Canada to the federal minister of justice argued that "The social issues Canadians face ... are complex and dynamic. The law commission facilitates an approach to law reform that recognizes this complexity and is equal both to Canada's diversity and to its common commitments to justice, equality, fairness and accountability" (Toronto Star, Sept. 29, 2006). In 2006, for example, the commission published reports on legal and policy barriers to immigrant settlement, and private security and police forces. Prospective studies for 2006--2007 included age and law, vulnerable workers, globalization and law, and indigenous legal traditions.

The government indicated that it wished to encourage more specifically targeted studies in law reform.

The Law Commission's reports and records are stored in the electronic collection of Library and Archives Canada.

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Liberal Party of Canada (Liberal Party website)

    Clarity Act (on secession from Confederation).
    Leadership conventions (selection).
    Secession Reference.

Following the defeat of Prime Minister Paul Martin's minority Liberal government in 2006 and his resignation as party leader, eight candidates campaigned for the leadership at a convention in December 2006. On the fourth ballot, Stéphane Dion, a political scientist, who had been minister of intergovernmental affairs in Jean Chrétien's government and minister of the environment in the Martin government, defeated the second-place candidate, Michael Ignatieff.

In addition to his credentials as an environmentalist, Dion had been the key proponent of the Secession Reference to the Supreme Court of Canada and the subsequent Clarity Act on Quebec's possible secession from Confederation. Ignatieff, who had won a seat in the House of Commons in the 2006 election was best known as an academic with well-published views on human rights and international affairs who had spent most of his career in the United Kingdom and the United States.

A notable candidate who was defeated earlier, on the third ballot, was Bob Rae, former New Democratic party premier of Ontario. Other candidates included three other former federal ministers, a former Ontario provincial minister, and a lawyer - the only female candidate - who had not held public office.

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National Security Certificate (NSC)

    Canadian Charter of Rights and Freedoms (1982)
    Judicial review (interpretive; non-interpretive).
    Supreme Court of Canada.

National security certificates allow the federal government to deport non-citizens following their arrest and a hearing before the Federal Court of Appeal involving secret intelligence to which neither the named individuals nor their lawyers have access, but they allow only a summary statement for rebuttal. In a unanimous 9--0 decision, the Supreme Court of Canada ruled that procedures for approval of NSCs violated the rights of individuals afforded by section 7 ("fundamental justice": "life, liberty and security of the person") of the Canadian Charter of Rights and Freedoms.

NSCs became an issue when, following the attacks on the United States in 2001, they were used against five people suspected of terrorism who insisted that they would be tortured or killed if deported. The case before the Supreme Court involved three people who, as a result of delays, had been detained without charge, some for several years. Two had been released under strict conditions, including electronic monitoring; the third person remained in detention. The case was of interest to the remaining two individuals.

The court sustained the principle of NSCs as an instrument of national security, granting the government one year to comply with its ruling and even suggesting a remedy: the appointment of special advocates who would have access to all evidence before the Federal Court of Appeal, without sharing it with the individuals and their lawyers. Thus judges would be better informed and the individuals better protected, as weak cases would be discouraged.

Writing for her colleagues, Chief Justice Beverley McLachlin observed: "The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process.... This basic principle has a number of facets. It comprises the right to a hearing. It requires that the hearing be before an independent and impartial magistrate. It demands a decision by the magistrate on the facts and the law. And it entails the right to know the case put against one, and the right to answer that case. Precisely how these requirements are met will vary with the context. But for s.7 to be satisfied, each of them must be met in substance" (Charkaoui et al. v Canada, February 23, 2007; emphasis in original).

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Parti Québécois (PQ) (Parti Québécois website)

The Parti Québécois incurred a serious setback in the 2007 election when it fell to third place among three parties in both popular vote share and representation in Quebec's National Assembly. The incumbent Liberal government was reduced to a minority government, and a long-standing third party, Action Démocratique du Québec (ADQ), formed the opposition.

While there remains bedrock support among Quebeckers for the party's fundamental sovereign nation-state aspiration for the province, PQ success has usually been a result of disaffection with the provincial Liberal party and the vagaries of the first-past-the-post electoral system. In 2007, however, many voters, though dissatisfied with the governing Liberals, also rejected the election as another federalist (Liberal)-versus-sovereignist (PQ) exercise. If Quebec's place in Confederation was an issue, the somewhat ambiguous "autonomy" position of the ADQ leader, Mario Dumont, was more appealing - ambiguous because Quebec's position within the federal system is as an autonomous province; appealing because it provided "soft nationalists" with an acceptable alternative to the Liberal party and an opportunity to focus on closer-to-home issues such as the provincial economy and health care.

A particular concern to PQ strategists would have been the seeming disparity between its sophisticated, urban senior leadership - epitomized by the party's recently selected leader, André Boisclair, openly gay and a one-time "recreational" proscribed drug user when a junior minister - and the conservative anti-elitism of rural and small-town Quebec. The ADQ recalls the success of the conservative, populist Union Nationale party (1935--1988) that the PQ displaced in the 1970s as the major electoral opposition to the Liberals. Boisclair eventually resigned as PQ leader, likely to be replaced by Pauline Marois, the party veteran whom Boisclair had defeated earlier for the leadership.

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Royal Canadian Mounted Police (RCMP) (RCMP website)

An accumulation of critical events led to a federal government investigation of the Royal Canadian Mounted Police in 2007 that seriously criticized senior officers and the management structure of the para-military police force, and repeated earlier calls for an effective civilian oversight body. The RCMP's commissioner had resigned in 2006 after giving contradictory evidence to a parliamentary committee respecting events that led to the deportation from the United States and the imprisonment and torture in Syria of Maher Arar as a suspected terrorist. (Arar later returned to Canada, exonerated by a judicial commission of inquiry, and was compensated by the federal government.) Following the investigation in 2007, the federal government appointed a senior federal public official as commissioner, the first person appointed commissioner from outside the ranks of the century-old RCMP, an icon of Canadian nationality.

In addition to critical assessments respecting its role in national security matters that were removed from its mandate in the 1980s and reinstated following the terrorist attacks in the United States in 2001, the RCMP has been criticized at the same time on other grounds: its use of warrants granted under the Security of Information Act; failures in training and communication that might have contributed to the death of officers; delays in investigations of shooting deaths by police officers and of allegations of sexual misconduct; the conduct of investigations involving politicians; its use of the witness protection program; allegations of senior officers' mismanagement of the force's pension and investment funds.

As mentioned above, the RCMP had been the subject of fact-finding hearings by a judicial commission of inquiry respecting the force's role in the extra-judicial deportation ("extraordinary rendition") of Maher Arar, a naturalized Canadian, by the United States to Syria in 2002, suspected of being a terrorist. He was imprisoned and tortured in Syria before being returned to Canada without charge one year later. In 2006, the commission's final report concluded that the US decision was likely the result of improper RCMP behaviour, and found no evidence of activities by Arar that constituted a security threat to Canada. The commission made several recommendations respecting RCMP training and policies, but notably that security intelligence activities be conducted within its fundamental law enforcement mandate and that an independent arm's-length body be established to oversee the RCMP respecting security activities (www.ararcommission.ca). A few months later, the commissioner of the RCMP resigned following an admission that he had misled a House of Commons committee respecting the timing of his knowledge of Arar's detention and deportation on the basis of information improperly conveyed to authorities in the United States by the RCMP. Not only had the RCMP provided information to US authorities improperly, but the force had subsequently impeded efforts to seek his release from Syria.

In 2004, the RCMP had used the federal Security of Information Act (formerly the Official Secrets Act) to raid a journalist's home and office, retrieve files and threaten criminal prosecution in order to determine the source of leaked information concerning the Arar deportation. At the time, there was suspicion that the police action was part of an exercise to protect the RCMP from public knowledge of its role in Arar's fate, rather than to protect national security. In 2006, the Ontario Superior Court ruled the police action to be an abuse of rights protected in the Canadian Charter of Rights and Freedoms: section 2, "freedom of ... expression, including freedom of the press and other media of communication"; section 7, the "right to life, liberty and security of the person...." The court rule the relevant section of the Security of Information Act unconstitutional (O'Neill v. Canada [Attorney General], October 19, 2006).

Training and communication became issues when four RCMP officers were killed in Alberta during a raid in 2005 and two officers were killed in Saskatchewan in 2006 in pursuit of an armed kidnapper. In 2006, a case against an officer in British Columbia accused of alleged assault and sexual misconduct involving underage prostitutes was not pursued by an internal inquiry because of delays in bringing the case forward. Also in 2006, an officer in Saskatchewan was found guilty of sexual assault of a prisoner. Two deaths in separate incidents at the hands of investigating officers in British Columbia were also the subject of inquiries in 2006.

RCMP investigations involving politicians also raised concerns in 2006. In Ontario, seven months after a senior provincial minister was named in warrants respecting a criminal investigation, a Superior Court judge vindicated the minister, declaring that there had been insufficient investigation before the request for a warrant and inappropriate bolstering of the case before the judge who issued the warrant. In British Columbia, defence lawyers accused the RCMP of being less than forthright when obtaining a wiretap warrant involving senior politicians following two earlier failures, the successfully obtained warrant leading to a raid on the provincial legislature in 2003.

An RCMP announcement during the 2006 federal election campaign that it was investigating the leaking for private gain of a major change in Liberal government taxation policy is considered to be a key factor in the government's defeat, as opposition and media attention not surprisingly focused on possible involvement of senior Liberals. In 2007, the investigation led to a single charge against a federal public employee and none to Liberal politicians or party staff.

In 2007, the House of Commons public safety and national security committee voted unanimously to examine the excessive secrecy of Canada's Witness Protection Program Act, 1996, which makes impossible public examination of the RCMP's use of the program. In 2007, newspapers reported an account of an informant who lied to the police, helped ruin a drug prosecution, collected a significant sum of money from the RCMP, and later committed homicide under a new identity. The law respecting the RCMP program permanently prevents revealing a person's new identity and what is done under the new identity, including the commission of serious crimes. Responding to published reports, the RCMP insisted that the program did not confer immunity from responsibility for criminal actions before or after a person enters the program, although protection of identity would not be revoked: "If police begin to violate these protection agreements, far fewer people would come forward and agree to provide what can be crucial information," especially respecting organized crime (Assistant Commissioner R. Souccar, March 27, 2007). Nonetheless parliamentarians were concerned that the law that permanently and unconditionally protected the identity of informants also protected the RCMP from public examination of its use of the program.

In 2006, the federal auditor general reported that the administration of the RCMP's pension fund had involved nepotism and favouritism in earlier years, leading to $1.3 million in wasteful contracts. No officer would be sanctioned internally due to delays in internal investigation. However, in 2007 the minority Conservative government ordered an inquiry following testimony by retired and current RCMP officers before the House of Commons public accounts committee alleging fraud and cover-up by senior RCMP officers in the abuse of the pension fund. The opposition having criticized the government because its inquiry would not be judicial, lacking for example subpoena power, the public accounts committee voted unanimously to conduct its own investigation.

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Security of Information Act (Canada)

    Canadian Charter of Rights and Freedoms (1982)
    Freedom of information.
    Commissions of inquiry (judicial).
    Judicial review (interpretive;non-interpretive).
    Mass media of communication.
    Royal Canadian Mounted Police (RCMP)

In 2006, the Ontario Superior Court declared a section of the Security of Information Act (formerly the Official Secrets Act) to be a violation of sections of the Canadian Charter of Rights and Freedoms: section 2 ("freedom of ... expression, including freedom of the press and other media of communication") and section 7 ("right to life, liberty and security of the person").

In 2004, the Royal Canadian Mounted Police used section 4 of the Security of Information Act to obtain and exercise a search warrant, seizing documents from the home and office of an Ottawa-based journalist. The court found "anti-leak" elements of the section to be vague and susceptible to heavy-handed government authority, and hence unconstitutional.

The journalist had drawn the RCMP's attention as a result of published accounts of the case of Maher Arar, a naturalized Canadian detained by United States officials in New York in 2002 and deported without legal procedure ("extraordinary rendition") as a terrorist suspect to Syria, where he was tortured, before being released one year later and returned to Canada without charge. A judicial commission of inquiry found in 2006 that there was no evidence that Arar had committed an offence or that his activities constituted a threat to the security of Canada. Among other findings, Arar had been a victim of RCMP misuse of intelligence, leading the commission to recommend the establishment of an independent, arm's-length body to oversee RCMP activities respecting national security (www.ararcommission.ca / www.maherarar.ca).

In the case of the journalist, the RCMP felt the article was based on confidential secret information. However, the court found that the police used the search warrants and threats of criminal prosecution that could lead to a 14-year prison term to intimidate and compel the revealing of the journalist's source of information, an abuse of the media: "Given the importance of freedom of expression and the press in our democracy, this is conduct that has caused great prejudice to those freedoms." The court was concerned with the "overbreadth" of the Security of Information Act: "This is legislation that fails to define in any way the scope of what it protects and then, using the most extreme form of government control, criminalizes the conduct of those who communicate and receive government information that falls within its unlimited scope including the conduct of government officials and members of the public and of the press." The court rejected the federal government's position respecting the Access to Information Act, having "no evidence that Parliament ever intended the ATIA to be the exclusive avenue for the communication of government information and that every other avenue of communication is intended to amount to a criminal offence" (O'Neill v. Canada [Attorney General], October 19, 2006; emphasis in original).

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