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National Issues

 

This is a page providing commentary on selected national issues that I have had some experience with over 19 years as counsel with various parts of Parliament (i.e. counsel to committee, counsel to cabinet, counsel to deputy minister, counsel to speaker, etc). Legal cases are that particular public space where a glimpse of what really goes on behind the scenes comes to public attention.

warrants

Warrants are a long-disputed tool of English authority that goes back at least to 1765 when secretary of state Lord Halifax (our equivalent of a junior minister) ordered his departmental officials to arrest the publisher of a newspaper (the North Briton) for alleged seditious libel. The court voided the arrest and ordered Halifax to pay 400 pounds (worth 80,000 pounds in 2019) in damages (Leach v. Money (1765) 3 Burr.1692). The warrant story has only gotten more exciting.

CSIS extraterritorial warrant: first issued warrant after Bill C-44

megaprojects

Canada is always doing them (light-rail, hydro, wind-farms, pipelines). Voters think they are great. They are almost always a financial mistake. There is usually a cheaper way (including not doing the project). The authorities never listen. Its always good politics to do bad economics. The commentaries below point out some of the mistakes. In two cases below, these amounted to public representations.

privacy

Une issue seems to run underneath almost every public policy theme in the last two decades. Privacy dominated national security from the passage of the Anti-terrorism bill (2001) recognizing data-gathering and 5-eyes sharing authority to the Arar Inquiry. Privacy dominated the re-direction of policing toward surveillance of what you are looking at on the internet. Privacy led to 2014 legislation giving banks the ability to provide your data to third parties.  Privacy is said to be sacrosanct. Governments continuously pass legislation pretending to protect privacy (i.e. S-4: ‘Digital Privacy Act’), when the core of the legislation is an immunity for information delivery to outside parties.

Intrusion upon seclusion: can a lawyer review opposing party emails?

Select Charter issues

These comments are a tiny fraction of Charter cases, which can run into the hundreds per year in Canada. I selected a few on the periphery, right t work and taking the oath of allegiance.

COVID 19

Nothing has so dramatically restricted the lives of ordinary citizens in the post-war period. Governments have dramatically restricted liberty and Canadian courts have by and large, been silent, in fact supportive, of the restrictions. As a former criminal defence lawyer coming up in the era of courts openly crushing legislation, including the criminal code, in favour of individual liberty on the most absurd pretext, often on the most absurd pretexts, it was, personally, a shock to find Canadian courts so docile in the face of thinly-justified restrictions. We are still in the midst of a legal system coming to grips with the emptiness of the state’s expert-evidence.

Immunity

Over approximately 19 years working in Parliament, one of the abiding desires of the Senator who is now speaker was to introduce legislation inspired by Peter Hogg. That is, legislation removing the statutory immunity of countless federal officials. That they may or may not have common law immunity should be a matter for each case that comes on for decision. Over the last three decades hundreds of immunities have been added to legislation such that we are now a country with what Dicey properly described as the worst of all systems: where public officials are for all intents and purposes, immune from attack.

Needless to say, although the senator obtained agreement on the legislation from Chretien and Martin when each was prime minister, removing immunities and throwing the bureaucrats to the mercy of the common law (as Hogg and Dicey desired) faced furious push-back.

Below are some commentaries on immunity cases:

 

Ultra Vires issues

 

 

 

 

 

 

 

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