Monday, December 21, 2020

Emergencies Act: Application of the Law Regarding Public Welfare Emergencies in Canada

Author: Tracey Young. (Dec. 21, 2020). Emergencies Act: Application of the Law Regarding Public Welfare Emergencies in Canada. C4D Canadians4Democracy. Retrieved from: https://c4d-canadians4democracy.blogspot.com/2021/02/emergencies-act-application-of-law.html.

The Rule of Law in Canada

Numerous laws are in place that are supposed to guide public policies and decision-making with respect to public health and safety law, mandates, and orders in the provinces/territories and Canada.

The Emergencies Act, is one such federal piece of legislation should play a major role in shaping and guiding measures taken to support safety and security and justify amendments to any other Acts. This also extends to provincial laws, orders, and mandates that may come into conflict with the Constitution Act, and the part of it which articulates our Fundamental Freedoms and Rights under the Canadian Charter of Rights and Freedoms (1982).

Emergencies Act

(R.S.C., 1985, c. 22 (4th Supp.)

An Act to authorize the taking of special temporary measures to ensure safety and security during national emergencies and to amend other Acts in consequence thereof

Preamble

WHEREAS the safety and security of the individual, the protection of the values of the body politic and the preservation of the sovereignty, security and territorial integrity of the state are fundamental obligations of government;

AND WHEREAS the fulfilment of those obligations in Canada may be seriously threatened by a national emergency and, in order to ensure safety and security during such an emergency, the Governor in Council should be authorized, subject to the supervision of Parliament, to take special temporary measures that may not be appropriate in normal times;

AND WHEREAS the Governor in Council, in taking such special temporary measures, would be subject to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights and must have regard to the International Covenant on Civil and Political Rights, particularly with respect to those fundamental rights that are not to be limited or abridged even in a national emergency;

NOW THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Application and Construction

Marginal note:Binding on Her Majesty

2 (1) This Act is binding on Her Majesty in right of Canada or a province.
Marginal note:Federal jurisdiction
(2) For greater certainty, nothing in this Act derogates from the authority of the Government of Canada to deal with emergencies on any property, territory or area in respect of which the Parliament of Canada has jurisdiction.

Marginal note:National emergency

3 For the purposes of this Act, a national emergency is an urgent and critical situation of a temporary nature that

(a) seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or
(b) seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada

and that cannot be effectively dealt with under any other law of Canada.

Marginal note:Construction

4 Nothing in this Act shall be construed or applied so as to confer on the Governor in Council the power to make orders or regulations

(a) altering the provisions of this Act; or
(b) providing for the detention, imprisonment or internment of Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Public Welfare Emergency

Interpretation

Marginal note:Definitions

5 In this Part,

declaration of a public welfare emergency means a proclamation issued pursuant to subsection 6(1); (déclaration de sinistre)

public welfare emergency means an emergency that is caused by a real or imminent

(a) fire, flood, drought, storm, earthquake or other natural phenomenon,
(b) disease in human beings, animals or plants, or
(c) accident or pollution

and that results or may result in a danger to life or property, social disruption or a breakdown in the flow of essential goods, services or resources, so serious as to be a national emergency. (sinistre)

Source: Government of Canada. (1985). Emergencies Act. Retrieved from: https://laws-lois.justice.gc.ca/eng/acts/E-4.5/page-1.html

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Read more about the Emergencies Act, and the history around Canadian emergency management legislation at the link below.

Canadian Britannica. Emergencies Act. Retrieved from: https://www.thecanadianencyclopedia.ca/en/article/emergencies-act

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#Canada #EmergenciesAct #Constitutionallaw #conlaw

Thursday, December 17, 2020

Canadian Charter of Rights and Freedoms: The "Nuclear Option": Sec. 33 – Notwithstanding clause

Author: Tracey Young. (Dec. 17, 2020). Canadian Charter of Rights and Freedoms: The "Nuclear Option": Sec. 33 – Notwithstanding clause. C4D Canadians4Democracy. Retrieved from: https://c4d-canadians4democracy.blogspot.com/2020/12/canadian-charter-of-rights-and-freedoms.html.

Section 33 of the Canadian Charter of Rights and Freedoms is known as the notwithstanding clause. Also known as the override clause, it is part of the Constitution of Canada.

The clause allows federal, provincial or territorial governments to temporarily override, or bypass, certain Charter rights. These overrides are subject to renewal after five years.

Although the clause is available to governments, its use is politically difficult and therefore rare. It is known colloquially as the “nuclear option,” because its use is considered extremely severe.

Since the Constitution was patriated in 1982, the clause has been used only a handful of times by various provinces. The federal government has never invoked the clause (Canadian Encyclopedia).

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Section 33 – Notwithstanding clause

Provision

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

(3) A declaration made under section (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

(4) Parliament or the legislature of a province may re-enact a declaration made under section (1).

(5) Section (3) applies in respect of a re-enactment made under section (4).

Similar provisions

Section 33 is unique among the constitutions of countries with constitutional democracies. However, certain international human rights conventions contain more limited notwithstanding clauses. Article 4 of the International Covenant and Civil and Political Rights, which is legally binding on Canada, contains a notwithstanding clause.

See also the following regional instruments that are not legally binding on Canada but include notwithstanding clauses: article 27 of the American Convention on Human Rights; article 15 of the European Convention on Human Rights.

Analysis

Section 33 allows Parliament or the legislature of a province to derogate from certain sections of the Charter, namely section 2 (fundamental freedoms), sections 7 to 14 (legal rights) and section 15 (equality rights). It does not apply to democratic rights (section 3 — the right to vote or sections 4 and 5 — the sitting of the House of Commons or other Canadian legislatures), mobility rights (section 6) or language rights (sections 16 to 23). Once invoked, this section effectively precludes judicial review of the legislation under the listed sections. The declaration is only valid for 5 years. After this time period, it ceases to have any effect unless it is re-enacted.

Section 33 lays down a requirement of form only. In invoking section 33, the legislature does not need to identify the provisions of the Act in question which might otherwise infringe specified guaranteed rights and/or freedoms, nor does the legislature need to provide a substantive justification for using the override (Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, paragraph 33).

A declaration under section 33 is valid if it generally names all of sections 2 and 7 to 15, without specifying the possible provisions to which the override may apply. Omnibus legislation will not affect the validity of the declaration (Ford, supra).

Where the legislative intent is to override only part of the provisions or provisions contained in a section, section or paragraph of the Charter, there must be a sufficient reference in words to the selected part of the legislation to be overridden (Ford, supra).

The general rule of interpretation against retroactive and retrospective operation applies to section 33 of the Charter: section 33 has been interpreted by the Supreme Court as permitting prospective derogation only. If enacting legislation purports to give retrospective effect to an override of the Charter, the legislation is, to that extent, of no force or effect. (Ford, supra; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927).

Use of section 33 by the government

To date, the federal government has not invoked the notwithstanding clause.

Section 33 has been invoked on occasion by provincial governments. For example, in 1982, Quebec passed an omnibus enactment that repealed all pre-Charter legislation and re-enacted it with the addition of a standard clause that declared the legislation to operate notwithstanding section 2 and sections 7 to 15 of the Charter. The legislation also inserted the standard clause into all post-Charter enactments. The declaration in the omnibus legislation purported to have retroactive effect to April 17, 1982. This omnibus legislation was the subject of the decision in Ford, supra. It was not re-enacted when it expired.

Saskatchewan, the Yukon, Ontario, and Alberta have also made section 33 declarations. Not all of the laws in which these declarations were made were brought into force.

References

Canadian Encyclopedia. Notwithstanding clause. Retrieved from: https://www.thecanadianencyclopedia.ca/en/article/notwithstanding-clause.

Government of Canada/Department of Justice. Section 33 – Notwithstanding clause. Retrieved from: https://canada.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art33.html.

Saturday, December 12, 2020

Constitutional and Legal Rights: Canadian Charter of Rights and Freedoms and Its Application in Canada

Author: Tracey Young. (Dec. 12, 2020). Constitutional and Legal Rights: Canadian Charter of Rights and Freedoms and Its Application in Canada. C4D Canadians4Democracy. Retrieved from: https://c4d-canadians4democracy.blogspot.com/2020/12/constitutional-and-legal-rights.html.

The Canadian Charter of Rights and Freedoms (1982)

The Canadian Charter of Rights and Freedoms sets out those rights and freedoms that Canadians believe are necessary in a free and democratic society.

The Charter is one part of the Canadian Constitution. The Constitution is a set of laws containing the basic rules about how our country operates. For example, it states the powers of the federal, and provincial and territorial governments in Canada.

Understanding the Charter

Guarantee of rights and freedoms – section 1

1. Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Fundamental freedoms – section 2

2. Everyone has the following fundamental freedoms:

freedom of conscience and religion;
freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
freedom of peaceful assembly; and
freedom of association.

Under section 2 of the Charter, Canadians are free to follow the religion of their choice. In addition, they are guaranteed freedom of thought, belief and expression. Since the media are an important means for communicating thoughts and ideas, the Charter protects the right of the press and other media to speak out. Our right to gather and act in peaceful groups is also protected, as is our right to belong to an association like a trade union.

These freedoms are set out in the Charter to ensure that Canadians are free to create and express their ideas, gather to discuss them and communicate them widely to other people. These activities are basic forms of individual liberty. They are also important to the success of a democratic society like Canada. In a democracy, people must be free to discuss matters of public policy, criticize governments and offer their own solutions to social problems.

Mobility of citizens

6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.

Rights to move and gain livelihood

(2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right:

to move to and take up residence in any province; and
to pursue the gaining of a livelihood in any province.

Section 6 protects the right of Canadian citizens to move from place to place, and subsection 6(1) ensures that all Canadian citizens are free to come and go as they please.

Section 7 - Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Section 7 guarantees the life, liberty and personal security of all Canadians. It also requires that governments respect the basic principles of justice whenever they intrude on those rights. Section 7 often comes into play in criminal matters because an accused person clearly faces the risk that, if convicted, his or her liberty will be lost.

Source: Government of Canada. Guide to the Canadian Charter of Rights and Freedoms. Retrieved from: https://www.canada.ca/en/canadian-heritage/services/how-rights-protected/guide-canadian-charter-rights-freedoms.html.

Video: Charter of Rights and Freedoms

Springtide. (June 13, 2013). Retrieved from: https://www.youtube.com/watch?v=YAIM1qzO9_w.

Section 32(1) – Application of the Charter

Provision

32.(1) This Charter applies:

to the Parliament and the government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and the Northwest Territories; and
to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

Similar provisions

Provisions on the scope of application of an instrument can be found in the following Canadian laws and international instruments binding on Canada:

sections 2, 5(2), and 5(3) of the Canadian Bill of Rights;

article 2.1 of the International Covenant on Civil and Political Rights;

article 6 of the International Convention on the Elimination of Racial Discrimination;

article 2.1 of the Convention on the Rights of the Child;

article 2.1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

See also the following international and comparative law instruments not binding on Canada:

article 1 of the American Convention on Human Rights;

article 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms;

the American Bill of Rights — American courts have held that most of the guarantees apply to both federal and state governments.

Purpose

Section 32(1) defines the scope of the Charter’s application. The text of section 32(1) provides “a strong message that the Charter … is essentially an instrument for checking the powers of government over the individual”: McKinney v. University of Guelph, [1990] 3 S.C.R. 229 at 261.

The Charter is not intended to govern relations between private actors.

The exclusion of private activity from the Charter was not a result of happenstance. It was a deliberate choice that must be respected. We do not really know why this approach was taken, but several reasons suggest themselves.

Historically, bills of rights, of which that of the United States is the great constitutional exemplar, have been directed at government. Government is the body that can enact and enforce rules and authoritatively impinge on individual freedom: McKinney at 262.

Saturday, December 5, 2020

Constitution Act of Canada (1867)

Author: Tracey Young. (Dec.5, 2020). Constitution Act of Canada (1867). C4D Canadians4Democracy. Retrieved from: https://c4d-canadians4democracy.blogspot.com/2020/12/constitution-act-of-canada-1867.html.

Constitution Act (1867)

Government of Canada. Table of Contents. Retrieved from: https://laws-lois.justice.gc.ca/eng/const.

CONSTITUTION ACT, 1867

30 & 31 Victoria, c. 3 (U.K.)

An Act for the Union of Canada, Nova Scotia, and New Brunswick, and the Government thereof; and for Purposes connected therewith

(29th March 1867)

Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom:

And whereas such a Union would conduce to the Welfare of the Provinces and promote the Interests of the British Empire:

And whereas on the Establishment of the Union by Authority of Parliament it is expedient, not only that the Constitution of the Legislative Authority in the Dominion be provided for, but also that the Nature of the Executive Government therein be declared:

And whereas it is expedient that Provision be made for the eventual Admission into the Union of other Parts of British North America: (1)

II. UNION

Marginal note:Declaration of Union

3. It shall be lawful for the Queen, by and with the Advice of Her Majesty’s Most Honourable Privy Council, to declare by Proclamation that, on and after a Day therein appointed, not being more than Six Months after the passing of this Act, the Provinces of Canada, Nova Scotia, and New Brunswick shall form and be One Dominion under the Name of Canada; and on and after that Day those Three Provinces shall form and be One Dominion under that Name accordingly. (4)

III. EXECUTIVE POWER

Marginal note:Declaration of Executive Power in the Queen

9. The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.

Marginal note:Application of Provisions referring to Governor General

10. The Provisions of this Act referring to the Governor General extend and apply to the Governor General for the Time being of Canada, or other the Chief Executive Officer or Administrator for the Time being carrying on the Government of Canada on behalf and in the Name of the Queen, by whatever Title he is designated.

Marginal note:Constitution of Privy Council for Canada

11. There shall be a Council to aid and advise in the Government of Canada, to be styled the Queen’s Privy Council for Canada; and the Persons who are to be Members of that Council shall be from Time to Time chosen and summoned by the Governor General and sworn in as Privy Councillors, and Members thereof may be from Time to Time removed by the Governor General.

Marginal note:All Powers under Acts to be exercised by Governor General with Advice of Privy Council, or alone

12. All Powers, Authorities, and Functions which under any Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, are at the Union vested in or exerciseable by the respective Governors or Lieutenant Governors of those Provinces, with the Advice, or with the Advice and Consent, of the respective Executive Councils thereof, or in conjunction with those Councils, or with any Number of Members thereof, or by those Governors or Lieutenant Governors individually, shall, as far as the same continue in existence and capable of being exercised after the Union in relation to the Government of Canada, be vested in and exerciseable by the Governor General, with the Advice or with the Advice and Consent of or in conjunction with the Queen’s Privy Council for Canada, or any Members thereof, or by the Governor General individually, as the Case requires, subject nevertheless (except with respect to such as exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland) to be abolished or altered by the Parliament of Canada. (7)

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3 Branches of Canadian Government

1. Executive branch

2. House of Commons

3. Senate

Canadian Government System

Christine Penrose. (Feb. 17, 2015). Youtube. Retrieved from: https://www.youtube.com/watch?v=Stbi6brWAzA.

What are Canada's Three Branches of Government

Parliament of Canada. (June 12, 2020). Youtube. Retrieved from: https://www.youtube.com/watch?v=PiIAQT1kZ6o.

What is Parliament?

Parliament of Canada. (April 16, 2019). Youtube. Retrieved from: https://www.youtube.com/watch?v=YSO27QPieTs.

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#Canada #Canadian #ConstitutionAct #conlaw #democracy #parliamentarydemocracy #Executivebranch #Parliament #Senate #constitutionalrights

Welcome to C4D Canadians 4 Democracy

This resource is provided to Canadians who are interested in using the open source information, knowledge, and tools that will be added over time to exercise and pursue our civil rights, justice and democracy in Canada.

Information that will be provided on this site will include the following:

➤ Canadian laws

➤ Research and statistical information

➤ COVID-19 information, research and statistical data

➤ Community development, organizing and mobilizing information, tools, and resources

➤ Information on how to advance and exercise our constitutional, democratic and other rights under the Constitution Act (1867) and Canadian Charter of Rights and Freedoms (1982)

➤ Information and resources for conducting different types of investigations and gathering evidence.

Author & Editor: Tracey Young. (Dec. 5, 2020). Welcome to C4D Canadians 4 Democracy. C4D Canadians4Democracy. Retrieved from: https://c4d-canadians4democracy.blogspot.com/2020/12/welcome-to-c4d-canadians-4-democracy.html.

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#Canada #Canadians #opensource #intelligence #information #OSINT #COVID19 #COVID19Canada #democracy #civilrights #constitutionalrights #conlaw #Charterrights #indigenousrights #sovereignty #healthsovereignty #Canadianpatriots