The SCC Ruling In Democracy Watch

At the end of July, the Supreme Court of Canada issued its ruling in Democracy Watch v. Canada (Attorney General).  This ruling has enormous implications for governments across Canada.

One of the key issues in the Democracy Watch case was the presence of clauses in the relevant legislation that foreclosed appeal to the courts.  This all stems from the Federal Ethics Commissioner's investigation and ruling in the WE Charities debacle.  I want to be clear here:  I am not about to engage in a re-examination of the WE Charities debacle - I have many thoughts about it, none of which are really relevant to this ruling.  

The underlying issue in this case is S66 of the Conflict of Interest Act (COIA), which reads: 

Orders and decisions final

66 Every order and decision of the Commissioner is final and shall not be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act. 

The SCC Ruling On Quebec's Secularism Law Will Be More Profound Than You Think

We've had a few weeks now since the hearings at the Supreme Court of Canada (SCC) in the matter of Montreal English School Board, et al v. Quebec Attorney General, and I expect that it will be some months before we see a ruling from the SCC.  

However, the importance and scope of the ruling in this case needs to be discussed, because this case may fundamentally change our understanding of The Charter, as well as the powers of legislatures.  Much has been made of the impact this case may have on the rules around the application of the Notwithstanding Clause (S33).  I've written at length about it on this blog. 

However, while its impact on the ability of legislature to use S33 will undoubtedly be profound, it also will have significant implications for the concept of "legislative/parliamentary sovereignty" or "legislative supremacy" (pick your term - they seem to be used somewhat interchangeably).  

On "Novel" Readings Of The Constitution

One of the loudest criticisms of the Federal Attorney General's submission in English Montreal School Board, et al v. Quebec Attorney General is that it relies on "novel" interpretations of The Charter of Rights and Freedoms (The Charter) and the Canadian Constitution (The Constitution).  

I am going to explain why I think that line of reasoning is incorrect, and why the more "linear" interpretations that the critics are advocating for are in fact the "novel" interpretations which should be examined with suspicion.