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Democratic Governance: The Constitution and Canada’s Branches of Government

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Introduction

Canada is a “constitutional monarchy,” which is a form of government where monarchs act as the political heads of state but their powers are kept within the boundaries of that country’s constitution. [1] In Canada, the monarch is the Queen. At the time of Confederation, the Constitution Act, 1867 (then called the British North America Act), as well as other documents and unwritten conventions adopted over time, set out who would be involved in government and how it would work.  As a former colony of Britain, Canada inherited a British style of governance called the Westminster system. Thus, Canada’s system of governance has three branches: the executive branch, the legislative branch, and the judicial branch.

The branches of government operate at both the federal and the provincial levels because Canada is a federation. That is, there is a constitutionally recognized federal government and there are constitutionally recognized provincial governments.

Executive Branch

The Monarch

The judicial branch interprets and applies the law and sometimes provides an advisory opinion to a government, on a major legal issue, when asked.The first branch of Canada’s political system is the executive branch. This is the decision-making branch made up of the monarch as the head of state and the Prime Minister, as head of government, and his or her Cabinet. [2] In Canada’s early history, the British monarch ruled the area from its Parliament in London until Canada became a country in 1867 and implemented its own constitution. The monarch then became a symbol of unity, authority and allegiance in Canada, [2] a figure who holds significant symbolic power but little political decision making power.

The monarch is represented in Canada by the Governor General at the federal level and by a lieutenant governor in each of the ten provinces. (While the commissioners in each of the three territories perform duties similar to those of the lieutenant governors, they are not considered the monarch’s representatives and are therefore the representatives of the Canadian government). The Governor General is appointed by the monarch upon the recommendation of Canada’s Prime Minister, and the lieutenant governors in each province are appointed by the Governor General upon the recommendation of the Prime Minister. [2]

The monarch’s role is outlined in Part III of the Constitution Act, 1867. Section 9 vests authority in the monarch. Sections 38 to 49, also known as the amending formula, instruct that any change to the position of the monarch or his or her representatives in Canada requires the consent of the Senate, the House of Commons, and the legislative assemblies of all the provinces. The monarch is also symbolically responsible for executive functions such as giving royal assent to bills passed in the House of Commons and Senate or reading the federal government’s agenda at the start of each new session of Parliament (called the Speech from the Throne).

The Governor General is also responsible for dissolving Parliament before an election and may even “prorogue” or end a parliamentary session if necessary. A recent example of proroguing occurred in 2008 when Prime Minister Stephen Harper asked then-Governor General Michaëlle Jean to prorogue parliament after the party in opposition, the Liberals, attempted to form a coalition government with the New Democratic Party and the Bloc Quebecois. After careful consideration and consultation with constitutional experts, Jean decided to honour the Prime Minister’s request. This is an example of how executive power ultimately resides with the monarch.

The Prime Minister and Cabinet

The judicial branch of government interprets and applies the law. It includes judges and the courts and operates independently from the other branches of government.After a federal election, the leader of the political party with the most seats in the House of Commons becomes the Prime Minister. The Prime Minister advises the Governor General on matters concerning the country’s governance and how he or she may proceed symbolically with executive matters. The cabinet is appointed by the Prime Minister from the large body of party Members of Parliament to advise him or her on these matters and help run the government. Section III of the Constitution Act, 1867 refers to the cabinet as the Queen’s Privy Council, although the term cabinet is not used.

The role of the Prime Minister is not discussed in any Canadian constitutional document, and is mentioned only in passing in the Constitution Act, 1867 and the Letters Patent issued in 1947 by King George VI. The role of the Prime Minister is an example of an “unwritten” element of Canada’s Constitution. The role is a tradition or convention that, over time and history, has come to be accepted as part of an unquestioned element of Canada’s governance. As such, the role of the Prime Minister has come to be constitutionally protected as well. [3]

Legislative Branch

The federal legislative branch of Canada’s government makes the laws of the country. This branch is formally known as the Parliament of Canada and includes the monarch, the House of Commons, and the Senate. As in Britain, Canada has a “bicameral,” or two-house system, an integral feature in a constitutional government. In Canada, the lower house is known as the House of Commons and the upper house is known as the Senate. When the British colonies were established in North America at the beginning of the 16th century, colonial assemblies were bicameral because there were two interests to be represented: the mother country by the governor in council, and the colonists by their chosen deputies. [4] Early Canadians preferred a bicameral system because they believed it avoided the creation of hasty and harsh legislation, ensured deliberation in government, and was best able to promote the interests of democracy. The bicameral tradition has continued into present day.

House of Commons

At the federal level, the House of Commons is the first house of legislation in the bicameral system. It is also called the lower house of Parliament. The House of Commons’ structure and role are outlined in sections 37 to 52 of the Constitution Act, 1867. This House is responsible for introducing, voting on and adopting laws and proposals for taxes and revenues. The members of this house, or Members of Parliament (MPs), belong to different political parties and they are elected by the people of Canada. There are currently 308 MPs, but the number can grow as the population increases. According to section 40, House of Commons seats are distributed according to the proportion of Canada’s population residing in the various provinces and territories. And according to section 50, a House may not sit longer than 5 years.

Senate

The federal legislative branch of Canada’s government makes the laws of the country. This branch is formally known as the Parliament of Canada and includes the monarch, the House of Commons, and the Senate. The Senate is the upper house of Parliament. It was created as a place of “sober second thought” to carefully examine legislation before it becomes law. It is made up of 105 members that are appointed by the Governor General, on advice of the Prime Minister, based on regional representation and other individual requirements. Senators are not elected. The Constitution states that senators are to be appointed based on regional representation and that they must meet specific requirements. Twenty-four senators must be from each of Ontario, Quebec, the Maritimes and the western provinces. Six senators are to be appointed from Newfoundland and one senator is to be appointed from each of the three territories. A senator must be a Canadian citizen and be at least 30 years old, own land worth at least $4,000 and, in the case of Quebec, own land within the province. Senators must have at least $4,000 and live in the province or territory they represent. Senators usually affiliate with a political party although some may choose to sit as independents.

The Constitution defines the scope of the Senate’s role and powers in sections 21 to 36. In 2014 the Supreme Court of Canada advised the federal government in Reference Re Senate Reform that significant changes to the Senate require constitutional amendments and that these amendments would require the use of the amending formula.

Judicial Branch

The judicial branch of government interprets and applies the law. It includes judges and the courts and operates independently from the other branches of government. Courts operate at both federal and provincial levels. The federal courts include the Supreme Court of Canada, the Federal Court of Canada (Trial Division and Appellate Division), and the Tax Court. The provincial courts include the superior courts or courts of appeal in each province or territory.

The courts deal with all manners of law in Canada including Aboriginal law, administrative law, contract law, constitutional law, criminal law, property law, and tort law. Judges interpret legislation and have the power to strike it down. A government may also ask the court for advice on a major legal issue. This is known as a reference question. According to the Constitution, appointment of judges to provincial superior courts (trial or appellate) is made by the Governor General. In practice, the Governor General appoints judges based on the advice of the Prime Minister and his or her cabinet. Appointments to provincial courts are made by the Lieutenant Governor of each province on the advice of the provincial government.

Appointments to the federal courts (Federal Court of Appeal and Federal Court Trial Division) that have jurisdiction for all of Canada are made by the Governor General on the advice of the government. Appointments to the Supreme Court of Canada are governed by the Supreme Court Act. It explains who may be appointed to the Supreme Court of Canada: “Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.” Section 6 then discusses the qualification of appointees from Quebec: “At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province, [6.1] … if, at any time, they were an advocate of at least 10 years standing at the bar of that Province.” The issue of appointment of Supreme Court judges from Quebec was an issue in Reference Re Supreme Court.

Conclusion

Each branch of Canada’s government serves a specific role. Canada’s Constitution outlines the structure of how these branches should operate and how they should work together to serve the country’s citizens.

The executive branch is made up of the monarch, represented by the Governor General, as head of state and the Prime Minister as head of government. The Governor General is the Queen’s representative in Canada and the Prime Minister is the leader of the political party with the most seats in the House of Commons. Although the Governor General usually acts on the advice of the Prime Minister, the monarch is still a symbol of unity, authority, and allegiance in Canada.

The legislative branch is made up of the House of Commons and the Senate; these are also known as the lower and upper houses of parliament respectively. The legislative branch introduces, votes on, revises, and passes bills that become laws once they are signed by the Governor General.

Finally, the judicial branch includes the courts and judges at both the federal and provincial levels. Although judges are appointed by the Governor General on the advice of the Prime Minister, the judiciary acts independently from the executive branch. The judicial branch interprets and applies the law and sometimes provides an advisory opinion to a government, on a major legal issue, when asked.

Together, Canada’s branches of government provide an integral framework that guides the democratic governance of the country.

This article was originally published on April 2, 2015 by the Centre for Constitutional Studies and is reprinted with permission.

Notes:

1. “Canada: A Constitutional Monarchy” Parliament of Canada; Senate of Canada
2. “The Queen’s Role in Canada,” from the official website of The British Monarchy, published by The Royal Household.
3. Peter W Hogg, Constitutional Law of Canada, 5th ed. vol 2, (Scarborough: Thomson, 2007) at 1.2
4. “Parliamentary Institutions,” in Robert Marleau and Camille Montpetit, eds., House of Commons Procedure and Practice (Parliament of Canada, 2000)

Access to Midwives in Canada

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382MidwiferyThe latest Organization for Economic Co-Operation and Development (OEDC) report shows that Canadians do not have good access to the services of midwives.

Statistics released in November 2013 show that Canada has one of the lowest rankings in the developed world when it comes to the availability of the services of midwives.  Korea, Slovenia and Canada have the lowest number of midwives per 100,000 people in the population.  The research also shows that in 2011 there were only 985 practising midwives in Canada.

As our recent article, Midwifery in Canada, shows almost every province and territory in Canada has legislation that allows for and governs midwives. Yet, in Canada, midwifery does not seem to be a well-accepted or well-accessed method of birth and delivery.  We wonder why this is the case.

The Ins and Outs of the Senate

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Credit: Mightydrake

Credit: Mightydrake

If the recent news headlines about the Senate has you wondering how the Senate came to be, what its role is and what Senators do, then check out the ‘Senate series’ on CPLEA‘s blog, Blogosaurus Lex.

Senate Series Part 1: An Introduction to the Senate

Senate Series Part 2: A Bit of History

Senate Series Part 3: The Structure of the Senate Today

Senate Series Part 4: The Make-up of the Senate Today

Senate Series Part 5: Exactly what do Senators do?

Legal and Ethical Support for Newborn Safe Havens

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382NewbornSafehavensIn May 2010, Providence Health Care in Vancouver announced the opening of the first newborn safe haven in Canada at St. Paul’s Hospital.  Four months later, Providence confirmed a healthy baby was dropped off at the hospital, setting off a further round of national and international media attention.   And now this year, following Providence’s lead and with their consultative support, Covenant Health implemented two newborn safe havens at the Misericordia and Grey Nuns Community Hospitals in Edmonton.  Known as Angel Cradles, the safe havens provide a means for parents who are unable or unwilling to care for their newborns to safely and anonymously leave their baby in a hospital bassinet, accessed via a secure, electronically monitored door discreetly located external to the Emergency Departments.  Prompted by clinical experience, and a desire to provide an additional option when real or perceived barriers prevent parents at risk from accessing existing social supports, the Angel Cradles are a practical resource to mitigate tragic outcomes as a result of unsafe abandonment.

Known as Angel Cradles, the safe havens provide a means for parents who are unable or unwilling to care for their newborns, to safely and anonymously leave their baby in a hospital bassinet, accessed via a secure, electronically monitored door discreetly located external to the Emergency Departments. 

Realizing this goal took a great deal of imagination and persistence, including extensive collaboration with provincial authorities and other internal and external stakeholders.  First, from a legal perspective, since neither British Columbia nor Alberta have safe haven legislation (there is currently no safe haven legislation anywhere in Canada) it was important the Angel Cradle program work in concert with existing legislative requirements.  Through detailed planning and candid dialogue we were able to confirm that, if a parent was either unable or unwilling to discharge their legal obligations in providing for the necessities of life, they could intentionally leave the baby at the hospital anonymously, with the caveat that no evidence of abuse or harm to the child was found upon physical examination.  However, we were informed that no blanket claims of legal protection from prosecution could be asserted.  The Angel Cradles had to promote safe abandonment.  Any evidence of harm is automatically reportable to authorities, as we would report clinical findings of abuse involving children at any time. We respect that the Crown must exercise its discretion to determine if it is in the public interest to investigate, lay charges and pursue prosecution if subsequent clinical evidence reveals the child has been harmed, even if left anonymously in the Angel Cradle. Thus, we have been consistent in all our public messaging that we are under no obligation to report or connect child with parent, even if the birth mother presents to our hospitals hours or days after delivery for treatment, provided that the newborn is left safely.

We respect that the Crown must exercise its discretion to determine if it is in the public interest to investigate, lay charges and pursue prosecution if subsequent clinical evidence reveals the child has been harmed, even if left anonymously in the Angel Cradle.

In addition to criminal legislative considerations, we had to ensure that the Angel Cradle program was aligned with other existing legislative frameworks, including various Acts that serve to promote the well being of children and families. Provincial mandates to support families and healthy parenting, open adoption practices, the rights of fathers, and other measures that protect the interests and rights of vulnerable persons must also be respected. In no way is the Angel Cradle intended to work at cross purposes in fulfilling these various legislative obligations.  Our organizations proudly support the wide range of social programs and services available to help parents at risk, and we work closely on a daily basis in connecting people presenting to our hospitals with these exceptional community resources.  What we do maintain, however, is that the Angel Cradle program provides an additional resource to augment the existing safety net.

The World Health Organization has critiqued that newborn safe havens, or baby boxes as they are more commonly known in Europe, contravene the rights of children in knowing their parental history and medical background.  This is not a view shared by the authors. 

The World Health Organization has critiqued that newborn safe havens, or baby boxes as they are more commonly known in Europe, contravene the rights of children in knowing their parental history and medical background.  This is not a view we share.  In fact, we have publicly confirmed our unequivocal support for the rights of children to know their history, but emphasize that such rights are moot if the baby dies as a result of unsafe abandonment.  We argue that the child’s first claim is the right to life, upon which the other rights are contingent.  What we hope is, that  by providing an additional option, a child may at least have a chance to exercise his or her rights in knowing their parental history at some future date, recognizing that even if a baby is safely abandoned, there is nothing that precludes that parent from coming forward later to claim their child.  Our concern is that, in a moment of desperation, for example if the birth mother is labouring alone in an unsafe environment, a potentially drastic choice may be made that could have unalterable tragic consequences for the child.  We certainly support the ideal that a parent can avail themselves of professional support which could lead to parent and child being reconnected later, and options such as Angel Cradle may help bridge that gap.

It is worth noting that during our respective consultation processes we were continuously advised by our clinicians and social workers, who have been personally involved in cases of unsafe abandonment, that the anonymity component of the safe havens is essential to the program’s success.  Clinically, there is still so much we do not understand about why people abandon their babies, but we do know it continues to occur in modern society despite the array of social services available.  Nor do we fully understand the barriers that keep people at risk from reaching out for support, including the documented clinical phenomenon of hidden pregnancies. For some parents, the denial of pregnancy may be so strong that secretly hiding evidence of the baby’s presence is perhaps what makes the anonymity feature of the Angel Cradle’s an accessible option. Clinically, there is still so much we do not understand about why people abandon their babies, but we do know it continues to occur in modern society despite the array of social services available.  It would seem that the originators of “foundling wheels” in the late 12th century Europe, convents of Catholic nuns, understood in a very pragmatic way that anonymity worked in reducing incidents of infanticide.  The foundling wheel concept, on which our modern Angel Cradles are similarly based, allowed for a baby to be discreetly placed in a cylinder outside a wall of convent and then rotated so the child was moved inside.  Once the child was safe the parent would ring a bell to announce the child’s presence before leaving without ever being seen.   The  medieval community appeared to understand the pressures some families experienced in having too many children and their inability to care for them, and the conflicted emotions triggered by contemplating or actually leaving one’s baby, even if done so safely.  Allowing a person to do so discreetly was as much an expression of compassion and support for distraught and conflicted parents as it was a practical step to ensure the baby’s safety.

Along with these legal, social and practical considerations, perhaps the greatest hurdle we continue to face is an ethical and moral one.  We assert that Angel Cradles are not meant to condone a throwaway society in which a child that is no longer wanted can be casually discarded, as was the experience of a live newborn abandoned outside a side door of St. Paul’s Hospital. Without a doubt, abandonment, safely or otherwise, is undesirable.  We argue instead from a harm reduction perspective that safe abandonment is the lesser of two harms.  Better a child be left safely than abandoned in a back alley, public washroom, or garbage bin.  There seems to be growing support for this ethical argument, as we reflect on the shift in public interest and tone of media coverage since Providence Health Care’s announcement four years ago, compared to the coverage that has ensued up to the recent news stories around Covenant Health’s cradles. Without a doubt, abandonment, safely or otherwise, is undesirable.  We argue instead from a harm reduction perspective that safe abandonment is the lesser of two harms.  This shift is significant.  As with any innovative solutions, there is always some resistance expected.  The World Health Organization has been the most vocal but there are others who genuinely question if they may do more harm than good.  We take such concerns seriously and emphasize that no one wants to see a child harmed, or accept it is ok for a pregnant woman to carry or labour alone without any support.  Where the disagreement lies is in the approach.  In the vast majority of cases the existing safety net successfully meets the needs of both baby and mother and must be promoted, as we authors do.  But given that unsafe abandonment still occurs, and the revival of baby boxes in Europe, Asia and now Canada has resulted in safely receiving babies who otherwise may have been discarded elsewhere, we believe morally every plausible and creative option should be seriously considered to reduce the chances of anyone falling through the cracks.  Even if one baby is saved it is worth it.

Despite the legal, practical and social questions raised by Angel Cradle, it seems to have captured the moral imagination of the community as a creative and visible social justice strategy.Despite the legal, practical and social questions raised by Angel Cradle, it seems to have captured the moral imagination of the community as a creative and visible social justice strategy.  As with the foundling wheel predecessors, the Angel Cradle is intended to meet the needs of both baby and parent, who are arguably equally vulnerable.  Along with its practical applications, in many ways the Angel Cradle functions as a symbol for anyone in society who is vulnerable and in need of support.  Perhaps the power of this symbolic gesture accounts for the surge of public interest in this work despite, thankfully, the few babies who would ever need to be placed in it.

 

An Overview of Anti-bullying Legislation and Alternatives in Canada

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onlinelawVery few days seem to go by, of late, without Canadians hearing about the alarming consequence of bullying in some form or another. This is particularly true in relation to children and youth. A number of high profile cases have garnered much discussion over the past few years, the latest of which is the tragic death of Rehtaeh Parsons. Studies and reports, campaigns and projects, and even the occasional uplifting triumphs, too, all do their part to keep this topic in the public eye.

According to Public Safety Canada, bullying is “characterized by acts of intentional harm, repeated over-time, in a relationship where an imbalance of power exists. It includes physical actions (punching, kicking, biting), verbal actions (threats, name calling, insults, racial or sexual comments), and social exclusion (spreading rumours, ignoring, gossiping, excluding).” Notably, a 2010 report for the Public Health Agency of Canada, on the Health of Canada’s Young People, found approximately 40% of adolescents to be both bullies and victims of bullying. And for all concerned, whether victim, bully, or both, the consequences can be many and long-lasting.

For those engaged in bullying, there may also be legal repercussions. While there is no offense termed bullying under the Canadian Criminal Code per se, many behaviours or incidents characterized as bullying fit the definition of criminal offenses. These include, for example, Criminal Harassment (CCC 264), Uttering Threats (CCC 264.1), Assault (CCC 265 & 266), and Sexual Assault (CCC 271), with perpetrators risking youth or adult sentencing depending on the circumstances of the crime(s). For more on this topic, see the John Howard Society for an accessible look at bullying and the law.

On a provincial level, a number of different approaches have been taken. At present, only some of the provinces have anti-bullying legislation in place, with mixed opinions as to their efficacy, while the other provinces and territories have opted to address bullying in different ways. What follows are recent legislative changes specific to bullying, as well as a quick look at the approaches taken by the others.

In Manitoba, Bill 18, which came into effect on April 15, 2012, amended The Public Schools Act specific to bullying and respect for human diversity. The term ‘bullying’ is defined, and school boards of publicly-funded non-religious and religious schools must both expand their policies about the appropriate use of the Internet and establish a respect for human diversity policy.

In Nova Scotia, Bill 30, the Promotion of Respectful and Responsible Relationships Act was introduced in April and received assent on May 17, 2012 shortly after the release of a task force report on bullying. The new Act resulted in bullying and cyberbullying being specifically addressed in the Education Act and the creation of a provincial school code of conduct. Bullying was further addressed on April 25, 2013 with the introduction of Bill 61, Cyber-safety Act to further address cyberbullying in particular.

New Brunswick’s Education Act was amended to address bullying and cyberbullying via Bill 45 on June 13, 2012. With an emphasis on “prevention, reporting, investigating and taking action,” bullying and cyberbullying were highlighted; the roles and responsibilities of principals, educators, parents, students and parent school support committees were clarified, along with protocols for discipline and intervention; and increased reporting at various levels was mandated.

On June 15, 2012, Bill 56 received assented in Quebec, amending the Education Act and the Act Respecting Private Education in relation to bullying and violence. Through these amendments, terms and responsibilities were defined, including the obligation of all public and private educational institutions to adopt and implement an anti-bullying and anti-violence plan.

Shortly thereafter, Ontario’s Education Act was amended on June 19, 2012 by Bill 13 with respect to bullying and other matters. New legal obligations exist for school boards and schools to prevent bullying; tougher consequences will be meted out for bullying; and students wanting to promote understanding and respect for all will be more so supported.

In Alberta, bullying is taken up in the Education Act, which received Royal Assent on December 10, 2012, and is specifically addressed by Bill 3. The term ‘bullying’ is defined; school boards will be required to establish a student code of conduct; and the National Bullying Awareness Week will be formalized as Bullying Awareness and Prevention Week.

Of the remaining provinces and territories, most have strategies in place to address bullying, and some have even tabled motions to consider anti-bullying legislation, too. In January 2008, Yukon passed the Safe and Caring Schools Policy, in which bullying in defined and clarification is provided around roles and responsibilities, standards and policies. British Columbia introduced ERASE Bullying (Expect Respect and a Safe Education) – a prevention and intervention strategy building on the province’s Safe, Caring and Orderly Schools Strategy – in June 2012. Saskatchewan announced an anti-bullying strategy in February 2005, which ties into the province’s Caring and Respectful Schools initiative. A year later, in May 2006, Newfoundland and Labrador established a provincial Safe and Caring Schools Policy. Nunavut, though, has neither legislation nor a broad strategy in place specific to bullying.

Finally, Prince Edward Island is presently considering legislation, just over a year after a motion was passed in April 2012 to encourage government in the adoption of anti-bullying legislation. Shortly thereafter, the Northwest Territories also passed a motion, in June 2012, recommending the establishment of a territory-wide anti-bullying campaign and the review of anti-bullying legislation across Canada.

Teacher’s Talk LawNow – A Report Card for Canada

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LawNow magazine is an incredible resource for teachers. Each issue offers engaging articles about law in language suitable for students. Teachers Talk LawNow is a series of lesson plans for teachers based on these articles.

 

Human Rights Law ColumnSocial Studies teachers will find many different uses for the article UN’s Universal Periodic Review of Canada – What’s in it for Canadians? by Linda McKay-Panos in the latest issue of LawNow.

The UN’s Universal Periodic Review (UPR) of Canada is a recent initiative (2006) to have UN member states evaluate the condition of human rights in selected Member States every 4 years.  When Canada had its first UPR there were 68 recommendations in areas like Aboriginal issues, immigration, women’s rights, and anti-discrimination.

The article explains how the evaluation process works. It also sheds light on how NGOs play a role in identifying issues and putting pressure on resolving them after the UPR has been completed. Teacher’s can pull out some interesting highlights from this article to share with younger grades and print the article for older students to work directly with.

This article can be approached in a few different ways. Below is a list of class activities targeted at different areas of the Social Studies curriculum.

Democracy and Human Rights

In small groups students will brainstorm a list of issues in Canada that need to be fixed or improved. For example poverty, access to affordable food and housing in the North, or clean drinking water on reserves. Students will then create a report card for Canada and provide their own recommendations for improvement. This activity could be extended by having students write a letter to their MP urging them to address the issues they identified.

NGOs and Lobbying

Students will examine the influence of NGOs in Canada. The article links to a list of NGOs that participated in Canada’s first UPR. Students will be assigned an NGO to research. They will then evaluate if the NGOs were successful at bringing the issues they represent into the UPR.

Internationalism and Human Rights

Students studying the success of internationalism at addressing contemporary issues like human rights could use this article as a reference in an evaluation of the strengths and limitations of the United Nations.

The Lastest News on Prostitution in Canada

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Prostitution in CanadaCanada’s prostitution laws are once again in the news.

On September 21, 2012 the Supreme Court of Canada ruled in the case of Attorney General of Canada v. Downtown Eastside Sex Workers United Against Violence Society,  that the Society had standing to bring a constitutional challenge  to Canadian prostitution laws.  The group claims that provisions of the law puts sex workers in danger.

A similar case, Bedford v. Canada (Attorney General) also examined Canada’s sex trade laws and was discussed by Linda McKay-Panos, the Executive Director of the Alberta Civil Liberties Research Centre in the September/October issue of LawNow.  In addition to Canada’s law, Linda examines the laws in this area in the Netherlands, the U.S., New Zealand, Germany, Sweden and Australia.

 

The Tax Court of Canada: An Introduction

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Tax Court of CanadaWhile many would share Scarlett O’Hara’s belief that there is never a convenient time for taxes, let alone a convenient time for tax problems, Canadians can take great relief in knowing that there is a convenient forum for resolving most tax problems. Although the Tax Court of Canada is one of Canada’s youngest courts, it has been described as “the Crown jewel of the federal court system”, a title which it has undoubtedly earned.

Brief History of the Tax Court

Canada has not always had a dedicated forum for tax disputes. For the first thirty years following the introduction of the Income War Tax Act, 1917 (the predecessor of the current Income Tax Act), tax assessments could be informally appealed to the Minister of Finance and formally appealed to the Exchequer Court of Canada.

The process of creating the Tax Court began in 1946, when the Income Tax Appeal Board was formed. Although formed as a court of record, the Board was essentially an administrative tribunal whose members were typically lawyers. Its decisions could be appealed to the Exchequer Court de novo, which permitted appellants to present a nominal case before the Board in the knowledge that they could present a full case before the Court. In 1970, the Board became the Tax Review Board, which was intended to be an informal forum for resolving tax disputes.

While the Trudeau government believed that the informal nature of the Tax Review Board was its best feature, taxpayers would typically bypass the Board entirely and appeal to the newly constituted Federal Court – Trial Division. To address these concerns, the Tax Court of Canada was formed in 1983 as a court of record, and became a superior court of record in 2003. Since that time, the Tax Court has developed the rules, procedures and forms that are used today, and has become the primary forum for resolving tax-related disputes. The Tax Court is widely respected for its fairness and efficiency.

Jurisdiction of the Tax Court

The Tax Court has the jurisdiction to hear appeals under various statutes, but for most Canadians, it is the Tax Court’s power to hear appeals under the Income Tax Act, the GST portions of the Excise Tax Act, the Employment Insurance Act and the Canada Pension Plan that is important. The Tax Court is where most disputes under these statutes are resolved.

However, the jurisdiction of the Tax Court comes with some important qualifications. The jurisdiction of the Tax Court does not extend to the “fairness” portions of the Income Tax Act and the Excise Tax Act, which grant the Canada Revenue Agency (the “CRA”) the discretion to waive penalties and interest. Taxpayers who are seeking this discretionary relief and who disagree with the CRA must apply to the Federal Court.

The Tax Court also lacks the power to deal with disputes relating to provincial income taxes and provincial sales taxes, and has no jurisdiction to grant any relief where a taxpayer wishes to sue the CRA for damages. If a tax dispute relates to provincial income or sales taxes, or an aggrieved party wishes to sue, an appeal or action must be brought in the superior court of the relevant province (i.e. for Alberta disputes, in the Court of Queen’s Bench of Alberta) or, where appropriate, the Federal Court.

Powers of the Tax Court

Unlike a provincial superior court, the Tax Court’s powers are limited to those set out in federal legislation. With respect to the Income Tax Act, the Excise Tax Act and other fiscal legislation, the Tax Court of Canada Act provides for relief from Notices of Assessment issued by the CRA. The Tax Court may only uphold the assessment, vacate the assessment, or direct the CRA to reassess the taxpayer for some other amount based on its conclusions.

The Tax Court’s powers are also limited by the statutes that impose the tax in dispute. The Tax Court is not empowered to make decisions on the basis that they will yield a fair result. Rather, the Tax Court can only make decisions based on its interpretation of the legislation. As a consequence, there are often circumstances where the Tax Court must acknowledge that it is rendering an unfair result and that it has no choice but to do so.

Because of the Tax Court’s powers and jurisdiction, a common “trap” is the Tax Court’s inability to deal with appeals from assessments where no tax is payable. Since the Tax Court’s powers are limited to determining the correct amount of tax payable, and since it is not possible to have less than no tax payable, there is nothing that the Tax Court can do in these cases, and the Tax Court will have no choice but to quash the appeal.

Judges of the Tax Court

As would be the case with any court, the reputation of the Tax Court reflects the quality of its judges. Tax Court Justices are appointed by the Minister of Justice on the recommendation of a Judicial Advisory Committee, and everyone appointed as a judge was a lawyer for at least 10 years prior to their appointment.

Many of the current Tax Court Justices were private-sector tax lawyers , while other Tax Court judges previously worked for the Department of Justice’s Tax Law Services group. The Tax Court and taxpayers benefit greatly from the collective expertise and differing perspectives of the Tax Court’s judges.

When a lawyer is appointed as a Tax Court Justice, he or she is required to maintain a residence within 40 km of Ottawa, where the Tax Court is based, and judges travel from Ottawa to other cities in order to hear appeals. By structuring the Tax Court as a “circuit” court in this manner, Parliament was able to ensure that each different region of the country would have its cases heard by the same pool of judges, in order to ensure that tax laws are applied consistently across Canada. In addition, the presence of all of the judges in Ottawa facilitates collaboration between the judges.

Tax Court Procedure and Appearing in Tax Court

It is important to note that a tax dispute cannot be appealed to the Tax Court until the earliest of 90 days after a taxpayer files a Notice of Objection with the CRA, or within 90 days after they have received a Notice of Confirmation from the CRA after filing a Notice of Objection. Most tax disputes are resolved by the CRA at the Notice of Objection stage, avoiding the time and costs of going to court.

If a Notice of Confirmation has been received and a taxpayer wishes to appeal, the first decision that must be made is under which Tax Court procedure the taxpayer wishes to appeal. The Tax Court has two procedural streams: Informal Procedure, which is a streamlined, lower-cost process with monetary limits, or the General Procedure, which is a more formal process similar to a traditional court action.

In the Informal Procedure, taxpayers may represent themselves or be represented by an agent, such as an accountant. Most procedural rules and rules of evidence are relaxed in order to make the Informal Procedure process more accessible, and most pre-trial procedural steps are eliminated. However, any person willing to appeal under the Informal Procedure must agree to limit the amount of tax in dispute to $12,500, although there are current proposals to raise this maximum amount to $25,000. Most Informal Procedure appeals will proceed to trial within a year of the filing of a Notice of Appeal, unless the taxpayer and the CRA settle before then.

In the General Procedure, taxpayers are typically represented by lawyers, although some taxpayers represent themselves. Many General Procedure cases involve significant amounts of tax or complex legal questions, so a formal process is necessary to ensure that the issues in dispute are understood and that all relevant facts will be presented. There are significant pre-trial procedural steps (i.e. discovery of documents and oral examinations) that must be completed, and significant amounts of time can elapse before General Procedure cases will be ready for trial.

Once a procedural stream is chosen, a Notice of Appeal must be filed within 90 days of the date that the CRA issued the Notice of Confirmation. The form for a Notice of Appeal can be found on the Tax Court’s website, and the completed Notice of Appeal may be filed online. If the Informal Procedure is chosen, there is no filing fee for the Notice of Appeal.

Once a Notice of Appeal is filed, the Department of Justice will prepare and file a Reply to the Notice of Appeal within 60 days. For Informal Procedure appeals, the pre-trial process is completed once the Reply is filed, and the Tax Court will schedule a date for the appeal to be heard in the city chosen by the taxpayer.

At an Informal Procedure trial, both the taxpayer and the CRA (through the Department of Justice) will present their evidence and make arguments. Typically, an Informal Procedure trial will last for less than a day, and the judge will often provide an oral decision on the day of the trial or the following morning.

Conclusion

While thinking about and paying tax may be unpleasant, the Tax Court of Canada allows for tax disputes to be resolved in a manner that minimizes the unpleasantness. The expertise and efficiency of the Tax Court provide a real benefit to Canadian taxpayers, and the future is bright for our youngest superior court.

Human Trafficking: A Call for Reform

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Young girl looking concerned

While domestic and international human trafficking is known to occur within and across Alberta’s borders, the actual experiences and needs of trafficked persons remain unclear and poorly defined, as does the way in which communities have responded.

Next to drug trafficking, human trafficking has been described by various international sources as the second most profitable crime in the world. While there is virtually no country that is immune to human trafficking, until recently and following the enactment of the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (known as the Palermo Protocol) in 2005, few efforts have been made to evaluate the counter-human trafficking interventions internationally and in Canada. Human trafficking has remained an understudied crime that knows no borders.

With the inception of ACT (Action Coalition on Human Trafficking) Alberta in 2008, the awareness of human trafficking in Alberta has grown, owing both to the efforts of federal and provincial government agencies and the efforts of ACT and other NGOs such as Not For Sale and Chrysalis Network. These agencies have mandates to raise awareness within the community and offer training to frontline service providers on human trafficking.

While domestic and international human trafficking is known to occur within and across Alberta’s borders, the actual experiences and needs of trafficked persons remain unclear and poorly defined, as does the way in which communities have responded (see, generally, Winterdyk et al., 2012). This article is drawn from the first (exploratory) study of its kind in Canada. It focused on consulting with agencies from various levels of government and non-governmental entities that have, or could, come into contact with trafficked persons. The project targeted a cross-section of agencies involved in all aspects of countering human trafficking, including those that assist in the investigation and prosecution of criminal cases and those that offer services and support to victims in trafficking (or those populations that are assumed to be vulnerable to trafficking). The intent of the research was to define the nature and scope of human trafficking in Calgary by drawing from existing knowledge in order to enhance localized responses to human trafficking.

The findings of the study will be used to formalize protocols for responding to the rights and needs of internationally and domestically trafficked persons in the city of Calgary. The information can also be used by other communities wishing to establish or improve their response to human trafficking and should inform provincial policy discussions.

Human Trafficking and the Law in Canada

Before presenting some of the key findings of the project, we provide a brief summary of the two key pieces of legislation that refer to human trafficking in Canada. The first, which became law in

2002, is Section 118 of the Immigration and Refugee Protection Act (IRPA) which states:

  1. No person shall knowingly organize the coming into Canada of one or more persons by means of abduction, fraud, deception or use or threat of force or coercion, and
  2. For the purpose of subsection (1), “organize”, with respect to persons, includes their recruitment or transportation and, after their entry into Canada, the receipt or harbouring of those persons.

As noted above, in 2005 Canada ratified the Palermo Protocol by incorporating Section 279 into Canada’s Criminal Code, which states:

279.01 (1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence.

279.011 (1) Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person under the age of eighteen years, or exercises control, direction or influence over the movements of a person under the age of eighteen years, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence.

279.04 For the purposes of sections 279.01 to 279.03, a person exploits another person if they:

(a) cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service; or

(b) cause them, by means of deception or the use or threat of force or of any other form of coercion, to have an organ or tissue removed.

 The Methodology

In recognizing the inherent complexity and diversity of experiences represented by the single concept of human trafficking we sought the participation of a number of different perspectives as well as the adoption of a mixed method approach.

To this end, we used an online survey comprised of 28 questions that were designed to gather information about the agencies represented by the respondents, their knowledge of human trafficking, their experience working on cases of human trafficking, including details of the cases they have identified, and how they view the response to human trafficking in Calgary. In total, 53 (56.4% response rate) survey responses were received. The respondents included: frontline service providers, law enforcement agencies, federal and provincial government representatives, faith-based organizations, civil society organizations, and members of academia. In addition to the survey responses we conducted five focus groups with between three to five participants each. The focus groups responded to 13 questions that were informed by the survey data as well as any relevant discussions that emerged in the individual sessions.

Key findings

Several of the key findings of the report point to a lack of clarity around a number of significant issues, which individually and collectively speak to the challenges that face agencies and organization in providing the appropriate responses and services to victims of trafficking in Calgary. In particular, in relation to the legal parameters, the following issues were identified.

  • There is an expressed over-reliance on the legal definition of trafficking, especially since it was noted that various incidents of human trafficking are potentially falling outside of a criminal justice response.
  • Concern was raised about the sensationalism around the issue(s) of human trafficking and the challenges this sensationalism presents for effectively identifying victims of trafficking.
  • There was a clear call to clarify the definition of human trafficking, particularly the element of exploitation, and to develop cross-sectional understanding of what constitutes trafficking.
  • A majority of the respondents felt they lack the necessary and appropriate training to help detect and assist victims of trafficking.

With this in mind, the research underscores the need to improve strategies for raising public awareness about the realities of human trafficking in Calgary and to build the capacity of relevant services to provide effective support for the needs of trafficked persons through referral pathways. According to research participants, ACT is seen to be an essential organization for creating awareness, facilitating collaboration among agencies involved in supporting victims of human trafficking and/or prosecuting perpetrators of the crime. However, it was suggested that ACT could expand its role as a co-ordinator and develop a dedicated case manager position.

Conclusion

This research project sought to capture existing knowledge on human trafficking by identifying the experiences and needs of trafficked persons as seen by those on the frontlines addressing the issue. The results revealed that there are a number of significant gaps in how agencies and services identify and assist victims of trafficking. Some of the challenges to effective response involve the lack of understanding of the definition of human trafficking, an over- reliance on the criminal justice definition of human trafficking, as well as unrealistic messaging and awareness-raising of the problem. Calgary and Alberta already have considerable capacity to respond to the human rights violation of human trafficking; to this end, we encourage greater involvement from the legal community to help address this issue, both with respect to the prosecution of perpetrators, and to the rights of victims of trafficking. Legal assistance is necessary on a number of fronts, such as navigating Temporary Residence Permit applications, advising on irregular immigration status, addressing victims’ own criminal histories, and advocating for the legal rights of trafficked persons.

Human trafficking is a reality in Canada, and more specifically with respect to the focus of this article, a reality in Calgary. Based on the findings, it is imperative that in addition to clarifying and educating those in a position to identify and assist victims on the legal definition of human trafficking, we expand the existing response to include dedicated case management, and offer specialized training to better identify and serve victims of trafficking.

This exploratory study has served to illustrate that much work still needs to be done if we are going to prevent human trafficking from becoming the most profitable crime in the world.

 

 

Bankruptcy: The End or the Beginning?

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Headed for bankruptcy? Find out what you need to know.

This article will be helpful to someone who is trying to deal honestly with overwhelming personal indebtedness and who has a genuine desire to make a fresh start financially.

Briefly noted are two of the changes to Canada’s Bankruptcy and Insolvency Act (BIA) applicable to individuals since July 7, 2008. The topics are:

  • a slightly more lenient handling of government student loans and
  • broader protection for registered retirement savings plans (RRSP). Both relate to a lifetime’s most laudable endeavours – getting an education and planning for retirement.

Briefly noted also are two of the changes to the BIA applicable to individuals as of September 18, 2009:

  • the automatic discharge from bankruptcy for individuals has been changed, and
  • an exception was created to deal with certain personal income tax debtors who become bankrupt.

These modifications are intended to prevent abuse of the bankruptcy law.

A fundamental purpose of the BIA and the personal bankruptcy process is the financial rehabilitation of the honest but unfortunate debtor.

Make a Proposal or Go Bankrupt

The BIA requires the debtor to be advised of the merits and consequences of the options available to resolve financial difficulties, including making a proposal to creditors, rather than voluntarily going into bankruptcy. This advising is the duty of a licensed trustee in bankruptcy.

The BIA enables a person (an insolvent debtor who is an individual) to make a formal proposal to his or her creditors to settle debts and avoid (the stigma of ) bankruptcy. Proposals under the BIA are either general or consumer. Since 1992, the streamlined process of a consumer proposal is available to a person where total debts do not exceed $250,000 (increased from $75,000 as of September 18, 2009) excluding mortgages against a principal residence. A successful proposal settles the debts on the terms set out in the proposal.

Bankruptcy involves a liquidation of the bankrupt’s available assets (if any) and distribution of the proceeds by the trustee of the bankrupt’s estate to the creditors. A discharge from bankruptcy releases the bankrupt from the unsecured debts existing when the bankruptcy began except for certain specified claims. A controversial exception since 1997 is that unpaid government student loans continue to exist after bankruptcy until paid or released by the bankruptcy court.

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