1. If Canada’s “dual domicile” rules for recognizing the essential validity of a marriage deny the recognition of same-sex marriages in favour of international comity, those rules should be changed to reflect Canada’s position on same-sex marriage regardless of foreign law.
2. The Charter of Rights and Freedoms should override principles of international comity to recognize same sex marriages otherwise invalid because of foreign laws.

In response to Macfarlane

Emmett Macfarlane, a political scientist at UVic, posted an article on Macleans.ca yesterday (“Are some marriages more equal than others”) in which he helpfully distils the issues arising in the same-sex divorce case as being a battle “that pits established equality rights against the intricacies of Canadian family law and principles of international comity…”. Acknowledging that marriages performed in Canada involving non-residents “tend to be governed by the rules of their home jurisdictions”, his central point is that the Charter is implicated here and applies to everyone.

As a consequence, he submits “recognizing the marriages of foreign heterosexuals but not foreign gays and lesbians is a gross infringement of equality rights. […] The point is that the Charter applies here. Respect for the laws of other jurisdictions has limits. Either we recognize foreign marriages or we don’t. We cannot make unconstitutional decisions based on the laws of other jurisdictions.”

(Similar views were expressed in a Globe & Mail editorial, “’Law of domicile’ should have no veto on the Constitution”).

As I will discuss further below, I disagree that the approach (originally) advanced on behalf of the Attorney General of Canada infringes the equality guarantees under section 15 of the Charter. For the sake of argument on the basic point about comity, let’s assume first that there’s no Charter infringement even though by the end of this article you may (still) disagree.

International comity and our lines we draw in the sand

When Macfarlane says that respect for the laws of other jurisdictions has limits, he is bang on. The common law is really good at leaving room for exceptions. When it comes to the recognition and enforcement of foreign laws (including judgments of foreign courts), there are things some jurisdictions simply won’t do.

(1)   Penal laws

States generally will not enforce the penal laws of other states, which have been defined as “suits in favour of the state for the recovery of pecuniary penalties for any violation of statutes for the protection of its revenue or other municipal laws, and to all judgments for such penalties.” In other words, the court of one country can’t issue a judgment requiring someone to pay a fine to that country’s government and expect a Canadian court to enforce that judgment by, for example, freezing the person’s assets located in Canada.

(2)   Revenue laws

Same goes for revenue or tax laws. If a state wants to collect on its taxes, it needs to do so within its own borders or negotiate a tax treaty with its international neighbours that extends its reach abroad.

A judgment that was obtained in a manner that offends “natural justice” is also at risk of being disregarded abroad.

(3)   Natural justice

Breaches of natural justice aren’t your garden variety complaints with the judicial process, though; these are fundamental deficiencies with the process such that the outcome can’t possibly be recognized as having been fairly reached. An example of this would be obtaining a court judgment against someone who never had any notice whatsoever of the court proceeding that led to the judgment.

(4)   Public policy – not the nebulous “catch all” you might think

And then, of course, there’s the ultimate discretion not to apply foreign laws on grounds of public policy. Before you get too excited, this doesn’t mean foreign laws get disregarded whenever there’s a disagreement with the court doing the deciding (or the lex fori). After all, if that were the case, what would be the point of pretending to defer to the foreign law in the first place?

The Quebec Civil Code describes the public policy exception as being triggered when a foreign law’s application “would be manifestly inconsistent with public order as understood in international relations.” Mirroring language found in the Hague Conventions, this statement of the public policy/public order exception’s scope makes clear that the public policy standard to be applied isn’t a local standard but one that has international dimensions.

A leading example of the public policy exception being applied is the 1941 decree of the National Socialist (Nazi) government of Germany depriving Jewish émigrés of their German nationality and, consequentially, leading to the confiscation of their property. The UK House of Lords said that such a racially discriminatory and confiscatory law of this sort was so grave an infringement of human rights that the UK courts ought to refuse to recognize it as a law at all.

A more recent example was a case heard by the UK House of Lords in which it was called upon to enforce an Iraqi decree that essentially confiscated ten aircraft owned by a Kuwaiti airline and parked at a Kuwaiti airport while Kuwait had been invaded by Iraq. Using the machinery of the state, the Iraqi government passed a resolution that purported to dissolve the Kuwaiti airline and transfer its property to an Iraqi airline.

By the time the case made its way to the UK courts, the global community had affirmed that Iraq’s invasion of Kuwait was in violation of international law and several UN Security Council resolutions. Even though Iraq later repealed its confiscatory decree, the applicable choice of law rules at the time meant that the Kuwaiti airline had to show the “theft” of the aircraft was illegal in Iraq at the time of the theft. In refusing to give effect to the Iraqi decree that stood in the way of this, the UK Court said this:

“I have already noted that Iraq’s invasion of Kuwait and seizure of its assets were a gross violation of established rules of international law of fundamental importance. A breach of international law of this seriousness is a matter of deep concern to the world-wide community of nations. … Enforcement or recognition of this law would be manifestly contrary to the public policy of English law. … Further, it would sit uneasily with the almost universal condemnation of Iraq’s behaviour and with the military action, in which this country participated, taken against Iraq to compel its withdrawal from Kuwait.”

These examples strongly suggest that there ought to be something approaching global consensus on the repugnancy of a foreign law before invoking the exception. Last time we checked, Canada (unfortunately) isn’t part of a very large club when it comes to recognizing same-sex marriages.

Isn’t the equality rights of same-sex couples of fundamental importance?

To those who argue that substantive equality for a same-sex couple is of foundational importance, and that foreign laws denying that equality are as wrongheaded as the Nazi confiscatory decree of 1941 or Iraq’s self-serving resolution of 1990, I tend to agree. But it remains a leap in my view to say that the global view on same-sex marriage – even involving as it does for us a question of equality rights – is such that any foreign law that don’t align with ours is hardly deserving of being a law at all or would cause grave concern to the worldwide community of nations. These aren’t, after all, laws promulgated by a dictator in North Korea, but by democratically accountable governments in Florida and Mother England.

Even though I’m a strong support of same-sex marriages, I think it would be overstating things to suggest that the denial of their recognition in these circumstances would be found to be “morally repugnant” to a significant majority of Canadians in the way I would expect, say, torture to “shock the conscience” of Canadians generally. By this I should not be taken to mean that recognizing same-sex marriage isn’t “the right thing to do”, but rather that we shouldn’t rush to judge the sanity of other nations when, like it or not, there’s hardly a unanimous view on this issue within our own borders.

So let’s be leaders, not followers!

Whether a majority of Canadians agree with it or not, the law of our land is that Canadian same-sex couples have the same right to marry as heterosexual couples and that right is constitutionally entrenched. So what’s next? Even acknowledging that Canada’s a bit of a lone wolf on the same-sex marriage issue, there’s still the urge to show some international leadership by “exporting” Canadian values in the form of a divorce order for any same-sex couple seeking one.

To do this, Canada would need to change its private international law rules (which are a matter of provincial law under our division of powers) such that the validity of marriages was determined by reference to something other than the law of domicile – at least when it came to same-sex couples. No matter how you formulate such a rule, you necessarily assign priority to Canadian values and beliefs ahead of any foreign or even near-global standard, and you do so in respect to individuals whose connection to Canada is based only on convenience. This, I suggest, would be a wholesale rejection of the “give and take” balance struck by the cooperative spirit that underlies our rules for recognition and enforcement of foreign laws.

What about the Charter?

The dissatisfaction with the result yielded by existing laws has many looking for an exceptional solution. Many, including Macfarlane, have cited the Charter as potential salvation. After all, the Supreme Court of Canada seemed to take as a given in the Same-Sex Marriage Reference that the extension of the right to civil marriage to same-sex couples was in furtherance of the Charter’s equality guarantee. (The Halpern decision out of the Ontario Court of Appeal expressly concluded that the common law definition of marriage that excluded same-sex relationship was contrary to section 15.)  But does this mean that recognizing a foreign law that precludes same-sex marriages is also a violation of the Charter’s equality guarantee? I’m not so sure.

A section 15 analysis isn’t as straightforward as one might think. For starters, not all differential treatment is prohibited by it. In order to run afoul of the Charter, the differential treatment must result from a formal distinction between the claimant and others on the basis of an enumerated or analogous ground, which results in impermissible discrimination.

The equality guarantee is a comparative concept. As such, the courts identify a relevant “comparator group” to determine whether the claimants are the subject of differential treatment on a prohibited ground.

At first blush, the proper comparator group would seem to be foreign heterosexual couples seeking recognition in Canada. After all, if the Florida/UK couple had been heterosexual, Canada would have no trouble recognizing their marriage as valid in the same circumstances.

Defining the comparator group this way, I argue, doesn’t get us very far. This is because the root of the Florida/UK couple’s difficulty isn’t just that they’re a same-sex couple, but that they’re from Florida and the UK. Put another way, if the exact same couple had been domiciled in Argentina or Iceland – where same-sex marriages are legal — before coming here to get married, we’d recognize their marriage as valid in Canada.

The fact remains that their homosexuality at least contributes to the differential treatment they’re facing now in Canada. This doesn’t mean, however, that Canada is discriminating against them on the basis of their sexual orientation. Assuming for a moment (because I haven’t checked) that Florida and the UK have laws similar to Canada’s which prohibits marriages between siblings, we would not have recognized as valid the marriage of a heterosexual brother-and-sister couple either. So, I ask, on what basis does our “differential treatment” truly arise?

In any event, refusing to recognizing Florida/UK marriage law on Charter grounds is not really very different from saying you’re going to refuse to recognize foreign law whenever it conflicts with Canadian law. To be sure, the Charter by its constitutional status isn’t just any ordinary Canadian law that could give rise to a conflict. Such conflicts would by definition be serious indeed. But even a conflict with the Charter isn’t necessarily going to give rise to a repugnancy so severe it would shock the conscience of the global community. To the outside world, even qualifying our conflicts of law rules to favour Canadian law over foreign law only on “really important Charter issues” could reasonably be interpreted as a rejection of an international baseline that has allowed us to play well together in the world’s sandbox for a decently long time.

At the risk of betraying our political leanings, we at DoubleHearsay aren’t thrilled about having the Conservatives running a majority government. And we strongly support same-sex marriage, the full blown version rather than some watered down “civil union” consolation prize. Having considered the DOJ’s position and the existing laws regarding the recognition and enforcement of foreign marriages, however, we believe the current criticism leveled against the federal government to be entirely misplaced.

First, a bit of background to the divorce application itself. It is brought on behalf of an unidentified lesbian couple who married in 2005 and separated in 2009. Neither partner has ever lived in Canada. They are residents of Florida and the United Kingdom. They came to Ontario in 2005 to get married, presumably because as a same-sex couple they weren’t legally entitled to marry each other in their home jurisdictions.

To state the obvious, each state is free to set its own legal requirements for the validity of a marriage. These requirements can be broken down into two categories: essential validity requirements (e.g., who is entitled to marry whom) and formal validity requirements (e.g., what constitutes a legal marriage ceremony).

In Ontario, being a member of a same-sex couple is not a bar to the essential validity of one’s marriage. In Florida and the UK, it is. (Another example of a marriage that would be invalid based on essential validity rules is an incestuous relationship prohibited by the Marriage (Prohibited Degrees) Act, the law that says you can’t marry your sister or your grandmother.)

So if different states have different rules for what counts as a valid marriage, what happens to married couples seeking to have their marriages “recognized” in a foreign state? The answer to this is brought to you by private international law, which sets rules for when to defer to other countries’ marriage laws and when to dig in and apply one’s own laws.

In Canada, the general rule is that the formal validity of a marriage is determined by the law of the country in which the marriage took place (lex loci celebrationis). The rules for determining the essential validity of a marriage are a bit more complicated. The traditional rule in Canada is that, in order for a marriage to be essentially valid, each spouse must have been entitled to marry the other according to the law of each party’s country of residence before the marriage took place (the “dual domicile” approach to the lex loci domicilli rule).

Under the dual domicile rule, even though the formal validity of the unidentified lesbian couple’s marriage may not be in issue (given that they were married in Ontario, presumably according to the ceremonial requirements of Ontario), there can be no doubt that their marriage was “essentially” invalid based on the laws of their places of residence, namely Florida and the UK, since neither of those jurisdictions permit legal marriages between same-sex partners.

This is precisely what Sean Gaudet, counsel for the Attorney General of Canada, argued before the Ontario court where the lesbian couple had sought a divorce. That is, as a matter of Canadian law, the couple is not validly married in Canada and never had been.

To be clear, if the couple had been residents of Canada before they were married, the validity of their marriage would not be an issue. So the criticism that Canada is somehow changing its position on the validity of same-sex marriages is quite misplaced. The problem in this case isn’t Canada’s law on same-sex marriages; it’s the UK’s and Florida’s prohibition on same-sex marriages and the fact that this couple resided in those two jurisdictions before getting married in Canada.

In order to provide a “fix” to the current situation, Canada would actually have to change its private international law rules for the recognition of foreign marriages to something closer to “the law of Canada no matter what”. In the world of private international law, that kind of xenophobic approach offends the principles of international comity and is generally frowned upon. After all, it’s in Canadians’ interests to have other countries recognize Canadian law in certain circumstances, and for that to happen each country has to be seen as reasonable in its approach to private international law.

In addition to the “dual domicile” approach to the lex loci domicilli rule, there’s also a rarely applied approach that recognizes the law of the “intended matrimonial home” as governing the essential validity of a marriage, in cases where the intended location is different from where the couple actually resided before the marriage. By rarely applied, we note that Canadian courts have cautioned that this innovative approach would apply only in exceptional circumstances. In the case of the Florida/UK lesbian couple, this alternative approach wouldn’t be very helpful; there’s no evidence that either of them ever intended on staying in Canada after getting married.

The couple is also claiming that Ontario negligently misrepresented that the couple’s marriage in that province was legally valid. We have no idea what the couple were told when they applied for their marriage licences, but there’s little doubt that the domestic recognition of same-sex marriages in Canada spawned a lucrative wedding tourism industry at the expense of foreign same-sex couples looking to get hitched. Could more have been done to warn these foreign couples that there was no guarantee that their marriage would be recognized at home (much less in Canada, given its application of the lex loci domicilli rule)? Possibly. But at the risk of appearing unsympathetic, it seems to us that any couple that jet sets to a foreign country to take advantage of more favourable marriage laws knows that they’re on questionable legal footing as far as their marriage is concerned.

If this couple gets anywhere with their negligent misrepresentation claim, you can bet Las Vegas chapels will be doubling up on the waivers we imagine they get foreign couples to sign before tying the knot before their favourite Elvis impersonator.

UPDATE: For more discussion of comity and why it’s a good thing, click here. For a contrary view, see Macfarlane’s post in Macleans here.

Plant’s quoted as saying: “People can debate the politics of it, the reality is none of the five leadership candidates will be able to go into the legislature and look at the assembled members and say that they have a mandate directly given to them by the people of British Columbia to lead the government.”

We at DoubleHearsay think we know what Plant actually meant to say: when people voted in the last election, they voted on the assumption that the MLA they were choosing was a member of the political party that was led by Gordon Campbell. If we thought our local MLA was being run by, say, Christy Clark or Kevin Falcon (or Moira Stillwell), we may well have voted for the NDP or Green Party candidate. Or we may not have voted at all.

While we hate to state the obvious, it’s disappointing – and a bit puzzling – that a constitutional lawyer like Geoff Plant would take such liberties in describing the electoral process in BC. We don’t directly elect anyone to be Premier – ever.

Even the folks in Vancouver-Point Grey (Gordon Campbell’s constituency) weren’t directly elected to be Premier. For that, he only needed the support of the BC Liberal Party, and – speaking simplistically — for the Libs to capture a greater share of seats in the Legislature than any other party.

As for the issue at hand, namely whether it is appropriate for a new leader to seek a clearer mandate by going to the polls ahead of the next scheduled election date, arguably we encounter crossroads at which a clearer mandate might be warranted more often than governing political parties change their leaders.

In any election campaign, there are a given set of “issues” weighing on voters’ minds and which typically determine the results. Invariably, those issues change or shift relative priority between elections. Sometimes, those issues change significantly between elections. Maybe there was a fundamental shift in the economy. Maybe we found ourselves at war. Maybe we faced the prospect of making substantive changes to our tax system.

Whenever the “issues of the day” change significantly, our political leaders have two choices. They can take the position that they were elected because the voters believed they represented a shared set of fundamental values, and that those values ought to direct how our leaders, as our elected representatives, address those new issues. Or they can seek political cover by going to the polls – either by referendum or through a general election – and letting the voters decide.

In the case of the HST, it’s clear that people in government knew during the last election campaign that shifting to the HST might be an option. Rather than making it a political issue, it seems that our leaders took the position that, if re-elected, they ought to make decisions on the HST as our elected representatives and proceed accordingly.

When the BC Liberals failed abysmally at communicating the rationale for the shift to the HST, Gordon Campbell “agreed” to a referendum on the issue. As if the “right” answer to whether the HST is best for BC might change depending on whether it was implemented by decision of Cabinet, a free vote of all MLAs, or by plebiscite. If the HST gets shot down in a referendum, the Liberals might think they are no longer blameworthy for the resulting economic decline. Perhaps. But if they could be blamed for anything, it would certainly be for their lack of leadership.

Seems to us that Christy Clark’s call for an earlier election is not much different than taking an important issue like the HST to referendum. Either way, it’s a politically expedient way to take cover when making unpopular decisions.

But can the same really be said of the Government’s decision to waive its entitlement to recover at least some of Dave Basi’s estimated $3 million in legal defence fees? The government lent its credit card to Messrs. Basi and Virk when charges were laid years ago, but only on condition that the fees be paid back. So clever was the government in securing its rights that the Province took a mortgage interest in Dave Basi’s home. Granted, it was a second mortgage, but a mortgage nonetheless.

You’ll forgive us for being absolutely perplexed by the AG’s explanation that it would have been too costly to attempt recovery of the legal fees owed by Basi. The AG’s spokesperson has been quoted as saying that, at best, the Province would only have recovered a “miniscule” amount. The property was last assessed at $518,000. Given that 2010 property tax assessments in BC were somewhat deflated, we would expect the property to fetch even more than that. (The Globe and Mail recently published an estimate of $857,000). It’s nearly impossible to tell from public documents how much Basi owed on his first mortgage, but assuming it hasn’t been refinanced since the Province secured its charge in 2005 — when the value of Basi’s home was $300,000 less than the most recently assessed value, it stands to reason that there would have been well over $300,000 in untapped equity for the Province to draw on.

Enforcing a mortgage security interest in neither rocket science nor exceptionally expensive. If Basi defaulted on the “loan”, the Province would have been entitled to seek a court order for sale of the property. The first mortgagee would take its cut, and the Province could pull the remainder. There would be a handful of contested court applications to deal with, but, fortunately, the Province has a crack team of litigators to deal with those. Sure, it would have only been a fraction of the $3 million in legal fees owed by Basi, but it would have appropriately allocated at least a portion of the burden of Basi’s legal fees where it belongs.

From a cost-benefit perspective, enforcing the loan would have made sense to us. But even if you’re extremely conservative with the numbers, there was nothing preventing the Province from sitting on its rights for a few more years while letting Basi pick up some further equity in the property and swooping in later to take its cut.

Reports indicate that the Province waived its right to recover Basi’s legal fees as part of the plea deal. While the decision to extend the plea deal was Mr. Bernardino’s alone, the decision to waive the legal fees fell to the Deputy AG and Deputy Minister of Finance. Given that the obvious alternative to reaching a deal was an embarrassingly public airing of the BC Liberals’ dirty laundry in open court, we can’t help but wonder whether waiving Basi’s legal fees was a politically driven call. It certainly wasn’t an economically or principle-driven one.

The rules of procedure for the House of Commons provide that the days or times of parliamentary sittings may be altered through special order.  Examples of this being done before are listed on Parliament’s website itself [emphasis added]:

1. to eliminate a sitting in order to allow some Members to attend a political convention;
2. not to sit when ceremonies are taking place to mourn the passing of public figures;
3. to make a statement of apology to former students of Indian Residential Schools;
4. to start a sitting earlier on given days in order to consider Government Orders;
5. for the installation of a new Governor General;
6. to begin a sitting earlier or later in order for a visiting leader or head of state to address both Houses;
7. not to sit on days on which the House would otherwise sit;
8. and to sit on days on which the House would not otherwise sit, including Saturdays and Sundays.

Although none of the reasons cobbled together by Mr. Harper for shutting down Parliament for an extended period of time rise to the level of making a landmark apology to victims of Indian Residential Schools, the fact remains that there was a process available for altering — even drastically — the schedule of Parliament without proroguing the parliamentary Session.

The difference between prorogation and an (albeit extended) adjournment is significant.  Upon prorogation, all parliamentary committees cease and all orders of reference lapse.  Committee memberships (other than for the Standing Committee on Procedure and House Affairs) are terminated.  No documents can be tabled (including reports of parliamentary officers like the parliamentary budget officer, or the auditor general).  A new throne speech must be read and debated.  And, most significantly, by default Bills which have not received Royal Assent before prorogation are “entirely terminated” and must be reintroduced at the next Session as if they had never existed.  (And yet Mr. Harper complains about Bills getting stalled in the Senate!)

Here, by the way, is a list of Bills that died on the Order Paper when Parliament was prorogued:

1. Bill C-6: An Act respecting the safety of consumer products (Canada Consumer Product Safety Act). This bill had actually passed third reading stage in the Senate, but hadn’t actually received Royal Assent.  Close, but no cigar.
2. Bill C-8: An Act respecting family homes situated on First Nation reserves and matrimonial interests or rights in or to structures and lands situated on those reserves (Family Homes on Reserves and Matrimonial Interests or Rights Act).
3. Bill C-13: An Act to amend the Canada Grain Act.
4. Bill C-15: An Act to amend the Controlled Drugs and Substances Act. Here’s another Bill that had passed Third Reading in the Senate but hadn’t yet received Royal Assent.
5. Bill C-19: An Act to amend the Criminal Code (investigative hearing and recognizance with conditions)
6. Bill C-20: An Act respecting civil liability and compensation for damage in case of a nuclear incident (Nuclear Liability and Compensation Act). Sound important?  It made it through the Commons Committee stage.
7. Bill C-23: An Act to implement the Free Trade Agreement between Canada and the Republic of Colombia, the Agreement on the Environment between Canada and the Republic of Colombia and the Agreement on Labour Cooperation between Canada and the Republic of Colombia (Canada-Colombia Free Trade Agreement Implementation Act). That’s okay.  The Colombians aren’t going anywhere.
8. Bill C-26: An Act to amend the Criminal Code (auto theft and trafficking in property obtained by crime). This one was before a Senate committee when it died.
9. Bill C-27: An Act to promote the efficiency and adaptability of the Canadian economy by regulating certain activities that discourage reliance on electronic means of carrying out commercial activities, and to amend the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act (Electronic Commerce Protection Act). Huh, what’s that about the economy?
10. Bill C-30: An Act to amend the Parliament of Canada Act and to make consequential amendments to other Acts (Senate Ethics Act).
11. Bill C-31: An Act to amend the Criminal Code, the Corruption of Foreign Public Officials Act and the Identification of Criminals Act and to make a consequential amendment to another Act.
12. Bill C-34: An Act to amend the Criminal Code and other Acts (Protecting Victims From Sex Offenders Act).
13. Bill C-35: An Act to deter terrorism, and to amend the State Immunity Act(Justice for Victims of Terrorism Act).
14. Bill C-36: An Act to amend the Criminal Code (Serious Time for the Most Serious Crime Act).
15. Bill C-37: An Act to amend the National Capital Act and other Acts (An Action Plan for the National Capital Commission).
16. Bill C-40: An Act to amend the Canada Elections Act (Expanded Voting Opportunities Act).
17. Bill C-42: An Act to amend the Criminal Code (Ending Conditional Sentences for Property and Other Serious Crimes Act).
18. Bill C-43: An Act to amend the Corrections and Conditional Release Act and the Criminal Code (Strengthening Canada’s Corrections System Act).
19. Bill C-44: An Act to amend the Canada Post Corporation Act.
20. Bill C-45: An Act to amend the Immigration and Refugee Protection Act.  According to the Bill’s legislative summary, this is actually the third time this Bill has died on the Order Paper.
21. Bill C-46: An Act to amend the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act (Investigative Powers for the 21st Century Act).
22. Bill C-47: An Act regulating telecommunications facilities to support investigations (Technical Assistance for Law Enforcement in the 21st Century Act).
23. Bill C-52: An Act to amend the Criminal Code (sentencing for fraud) (Retribution on Behalf of Victims of White Collar Crime Act).
24. Bill C-53: An Act to amend the Corrections and Conditional Release Act (accelerated parole review) and to make consequential amendments to other Acts (Protecting Canadians by Ending Early Release for Criminals Act).
25. Bill C-54: An Act to amend the Criminal Code and to make consequential amendments to the National Defence Act (Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act).
26. Bill C-55: An Act to amend the Criminal Code (Response to the Supreme Court of Canada Decision in R. v. Shoker Act).
27. Bill C-57: An Act to implement the Free Trade Agreement between Canada and the Hashemite Kingdom of Jordan, the Agreement on the Environment between Canada and the Hashemite Kingdom of Jordan and the Agreement on Labour Cooperation between Canada and the Hashemite Kingdom of Jordan (Canada-Jordan Free Trade Act).
28. Bill C-58: An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service (Child Protection Act (Online Sexual Exploitation)).
29. Bill C-59: An Act to amend the International Transfer of Offenders Act (Keeping Canadians Safe (International Transfer of Offenders) Act).
30. Bill C-60: An Act to implement the Framework Agreement on Integrated Cross-Border Maritime Law Enforcement Operations between the Government of Canada and the Government of the United States of America (Keeping Canadians Safe (Protecting Borders) Act).
31. Bill C-61: An Act to provide for the resumption and continuation of railway operations (Railway Continuation Act, 2009).
32. Bill C-63: An Act to amend the First Nations Commercial and Industrial Development Act and another Act in consequence thereof (First Nations Certainty of Land Title Act).

This list doesn’t include the four government Bills introduced in the Senate, the 45 public bills from the Senate, or the 353 private members’ bills in the House (which admittedly weren’t likely to get anywhere anyway).  All of which died on the Order Paper.

If we are to believe Mr. Harper’s claim that time was needed for MPs to participate in the Olympics and simultaneously buckle down on figuring out how to manage the economy — and we don’t — then surely he could have seen fit to introduce a motion for a special order modifying the Parliamentary schedule to accommodate this through an extended adjournment.  Sure, he would have had to convince more people than just the Governor General, but at least a case could have been made that the time was right for a snow day.  And, when MPs got back to work after the Olympics and figuring out that pesky economy, they could have picked up where they left off debating those Bills they thought important enough to consider over the 13 days of sittings they had already had before the break. (The first break,  that is: admittedly this manoeuvre would have required an Order of the House of Commons itself.  But there was plenty of time to arrange that, either when Parliament was scheduled to resume on January 25, or earlier if Mr. Harper asked the Governor General to advance the date on which Parliament was set to resume.)

Now that the prorogation ship has sailed, the least Mr. Harper can do is support a move to resurrect Bills that died on the Order Paper (such as Mr. Layton’s proposal), or even bring one himself.  The Standing Orders provide that Bills can be reinstated at the start of a new session at the same stage they had reached at the end of the previous session, either with unanimous consent, or by motion after notice and debate.

So, we at DoubleHearsay say “Bring Back the Bills!”  If Harper doesn’t pledge to do it first, I suspect the opposition parties would find a lot of public support for moving to reinstate some of these themselves.  If there’s one thing Canadians won’t be able to stand more than watching MPs take an extended winter vacation to help the Prime Minister avoid accountability, it’s watching those MPs waste time re-“debating” legislation all over again.

The idea seems simple enough, and perhaps even sensible. But the BC Civil Liberties Association suggests a sinister motive behind the Assistance to Shelter Act, which has yet to be tabled in the BC Legislature: it could be a tool to get homeless people off the street — and out of sight — during the upcoming 2010 Winter Olympic Games in Vancouver next February.

“The obvious outcome of this legislation will be our homeless hiding to avoid detection where they are at significantly increased danger, but are less of an eyesore for the Olympics,” says BCCLA director  Tom Sandborn. “The intent of this legislation isn’t to protect, but to clean up.”

The government-released notes indicate that, under the proposed legislation, a declaration of an extreme weather alert would serve as the trigger for police officers to become empowered to take homeless people to shelters.   The police officer would need to be satisfied that the person would be at risk of harm by staying outside.   The officer would then engage the person by encouraging them to voluntarily find shelter while advising them that an administrative order could be requested and issued to authorize the officer to transport the individual to a shelter involuntarily.

Sounds like strong medicine for homeless people insistent on fending for themselves.  And, as some critics point out, it may even be unconstitutional.  In the “Major Issues” section of the briefing materials released by government, it’s pointed out that “requiring people to go to a shelter against their will may make the legislation vulnerable to a Charter challenge.  A legal opinion on this issue is pending.”

While it’s clear that involuntary transportation and commital to a shelter engages liberty and security of the person interests under section 7 of the Charter, it’s the section 1 analysis — where government is called on to justify Charter rights infringements — that may yield broader implications.  So far, the Courts have rejected the proposition that government has a positive obligation to provide welfare or income assistance to ensure Canadians enjoy a minimum standard of living.  But, for the Assistance to Shelter Act to pass constitutional muster, government will need to establish, among other things, that there are no less drastic means of achieving the objectives of this legislation (i.e., presumably, to ensure the safety of homeless persons.) 

While it’s certainly cheaper for governments to provide emergency shelter funding in “emergency” weather conditions than on a permanent basis, a comprehensive homelessness strategy that gives Canada’s homeless a meaningful alternative to living on the streets would, it must be said, avoid the distasteful (and constitutionally suspect) scenario in which their liberty interests are suspended, even if ostensibly for their own good.  That it is administratively expedient and cheaper to force the homeless into shelters only when deemed necessary for their short-term survival is an unsatisfactory justification for dealing with the underlying problem of homelessness on a more lasting basis.