The Book

This blog serves to update Craig Forcese and Aaron Freeman, The Laws of Government: The Legal Foundations of Canadian Democracy (2nd Ed., Irwin Law 2010). It is also a depository for comments relating to two public law course taught by Craig Forcese at the University of Ottawa, Faculty of Law: CML 1104 Public Law and Legslation and CML 2212 Administrative Law.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]

Twitter: @cforcese


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Reporting of election results finally to go 21st century

LofG, ch. 3, p. 129.

As discussed in LofG, the Canada Elections Act sets out the times that polling stations will remain open in each part of the country. These times are somewhat staggered to account for time zone changes, but there is still a period of time in which the polls remain open in western parts of the country while they have closed in the east.

Parliament attempted to deal with this dilemma by banning the reporting of election results from another part of the country in an area in which polling stations remain open. This obviously violates free speech.  In R. v. Bryan, the Supreme Court of Canada held that the resulting Charter section 2 infringement was justified under section 1. In a split-court judgment, it held that the objective of the law was “to ensure informational equality”. In the Court’s view, overturning the ban would provide some voters with preferential access to information that could affect voter choices.

In LofG, we signal skepticism of this decision. Even if all results from Atlantic Canada were to be reported before the western polls close, these Atlantic results would not show which party had won the election. Logically, it is only when a likely overall winner can be discerned that the western vote could be influenced in the way feared. This possibility arises only when the Ontario and Quebec results are available, but these results are not available until the polls in these two provinces close, something that occurs only thirty minutes prior to the close of BC voting. In other words, the staggered polling hours across the country already effectively accomplish the objectives of ensuring ignorance of the election’s direction (and possible outcome) while western Canadians (and more concretely, BC residents) are casting their ballots.

More than this, the law is just plain unenforceable in the modern age. With modern broadcasting techniques such as the Internet and cable and satellite television, it is unlikely that a publication ban will now ever be effective in preventing polling results from reaching western voters.

Happily, today the government announced (tweeted in fact) that the ban would be lifted.

This is a sensible decision: it affirms free speech and discards an ill-considered, futile and rather paternalistic measure. 


The New Tory Majority and SCC Appointments

Cross-referencing: LofG, Ch. 4, pp.263 et seq.

Last week, Supreme Court Justices Binnie and Charron announced their retirements.  On Friday May 13, the Prime Minister issued a statement that announced the process to be followed in seeking their replacements:

"The process will be as follows:

  • To identify a pool of qualified candidates for appointment to the Supreme Court of Canada, the Minister of Justice and Attorney General will consult with the Ontario Attorney General, as well as leading members of the legal community. Members of the public are invited to submit their input with respect to qualified candidates who merit consideration at
  • The list of qualified candidates will be reviewed by a selection panel composed of five Members of Parliament – including three Members from the Government Caucus and one Member from each of the recognized Opposition Caucuses, as selected by their respective leaders – to review the list of qualified candidates. 
  • The Supreme Court Selection Panel will be responsible to assess the candidates and provide an unranked short list of six qualified candidates to the Prime Minister of Canada and the Minister of Justice for their consideration.
  • The two selected nominees will appear at a public hearing of an ad hoc parliamentary committee to answer questions of Members of Parliament. This is a process that was first established for the appointment of the Honourable Mr. Justice Marshall E. Rothstein in 2006."

Like the Rothstein approach, it seems clear that the parliamentary panel will not be asked to vote on the nominees in an action approximating a confirmation.  Its role is confined to "questioning".  In the 2006 Rothstein process, the questioning was respectful, even banal.  This may be a good thing -- the candidate was hardly contentious and there was little basis to unleash real objections.

The process was policed by Peter Hogg, who served as a traffic cop to officiate over questions that might draw a nominee into prejudgment over matters that they might decide on the Supreme Court.  Any taint of prejudgment would likely paralyze a judge were they latter to be asked to decide the mater.  Whether Professor Hogg (or a like figure) will play a similar role this time over is not clear.

The obvious missing ingredient in this process is some sense of the criteria that will be used to determine membership on the short-list and the ultimate identity of the new judges.  Without plain and frank articulation of those criteria, the added transparency of this system risks adding simple process onto what remains an opaque decision.  In the consequence, both the executive and the parliamentary panel should be invited to establish and make public the considerations applied in deciding qualifications of the candidates they vet.


The AG's G8 Report: Can it be released during an Election?

Crossreferencing: ch. 6.

As I write this blog, there have been calls by (I believe) all the mainstream political parties to release the auditor general's report on the "G8 Legacy Infrastructure Fund".  Thusfar, the auditor general has declined to do so, reasoning that "we can only present reports when Parliament is sitting. The Office of the Auditor General of Canada remains the custodian of its reports until they are presented to the Speaker of the House of Commons for tabling." 

Some public commentary on this issue has implied that if the four mainstream parties, the speaker of the recently dissolved 40th Parliament and the auditor general agree, the latter may release the report because no question of parliamentary privilege will be transgressed (the report was never submitted to Parliament and is, therefore, not within its purview).

With respect to these views, they ignore the strictures of the Auditor General Act itself.  In the provisions of relevance to this matter, this statute empowers the auditor general to report only to the House of Commons -- not the general public -- and anticipates only one route for the auditor general to release reports: to Parliament, via the Speaker.  There is no provision allowing the auditor general to circumvent this procedure, with the blessing of political leaders or otherwise.  If there is no speaker and no Parliament because of dissolution, there is no release of the report. To act otherwise would render the auditor general ultra vires her authority.

This may suggest that the Act should be amended to deal with the treatment of reports during a dissolution.  However, absent that amendment, the auditor general acts properly in declining to release the report.


The Green Party's Constitutional Challenge to Exclusion from the Televised Debates

Cross-referencing: Laws of Government, ch. 3.

As discussed in Laws of Government, election-time leaders' debates are a creature of a consortium of broadcasters who, while governed by "guidelines" issued by the Canadian Radio and Television Commission, determine which parties' leaders may be present during for the event.  In the current election, Elizabeth May, leader of the Green Party, was excluded, prompting a court challenge in the Federal Court of Appeal.  That court challenge failed an early test when the Federal Court of Appeal declined to expedite Ms. May's judicial review challenge to accommodate Ms. May's efforts to join the leaders' debate on April 12.  Most of that decision, reported as May v. CBC/Radio Canada, 2011 FCA 130, hinges on the court's review of jurisprudence on expedited review.  The court does, however, raise doubt on the merits of Ms. May's claims, citing the now venerable case of Trieger v. Canadian Broadcasting Corp. (1988), 54 D.L.R. (4th) 143 (ONSC). 

In that decision, a past effort by an earlier incarnation of the Greens to compel a debate presence, the court observed that "[i]t is by no means clear on this record that their freedom of expression requires a court to force the media to carry their views to the public. It is by no means clear on this record that any citizen's right to vote is impaired by the failure of this group to get the media attention which it sincerely and profoundly believes it requires. To make the orders sought would not promote free public discussion in political debate. It would interfere with free public discussion and political debate by forcing on unwilling participants a certain debate format."

These views must, however, be read in the context of the much more robust treatment the Supreme Court of Canada has given to the section 3 right to vote provisions since 1988.  In cases on thirty party advertising and elsewhere, the Court has emphasized the right to an informed vote, and has generally prioritized equity in the capacity of candidates to make themselves heard over free expression rights.  While Ms. May's case raises new issues different from these Supreme Court issues, it is indisputable that section 3 is now a bigger stick for Ms. May to wield than it was in 1988.


New PSC report on partisan hiring in the civil service

Cross-referencing: LofG, ch. 4.

The Public Service Commission of Canada has released a special report on "Merit and non-partisanship under the Public Service Employment Act (2003)".  The Commission reports that "[s]ince the coming into force of the PSEA in December 2005, the PSC has found little evidence of direct political influence in staffing under the Act" (at para. 4.58).  The Commission does recommend, however, that "further steps be taken to ensure that external appointments of deputy heads, associate deputy heads and heads and members of separate agencies and boards to the core public service are merit-based, non-partisan and subject to independent oversight" (at para. 4.65). 

It also expresses concern 

about the risks that appointments of former ministerial staff and former GIC appointees who have served as heads and members of separate agencies and boards into the core public service create for the non-partisanship of the public service. When former ministerial staff and former GIC appointees are subsequently appointed to positions in the public service, their appointments, like all others, must respect the core and guiding values and must not be the result of unfair access to public service positions or political influence. In addition, as is the case with other public servants, former ministerial staff and former GIC appointees who are appointed to the public service must perform, and must be seen to perform, their duties in a politically impartial manner.

(at para. 4.77).

In relation to political activities by members of the civil service, the PSC urges that the current limitations on political activities by civil servants in the Public Service Employment Act (2003) be extended to Governor in Council appointees.