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 Legislation and CML 2212 Administrative Law.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]

Twitter: @cforcese


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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.


The Basic Ins and Outs of the "In and Out" Controversy

Cross-referencing: Laws of Government, Ch. 3

By the time of this writing, the so-called "in and out" controversy continues to percolate as a possible election theme, fuelled by charges levelled against several Conservative Party fundraising luminaries under the Canada Election Act.  The "in and out" matter is discussed in LofG, but what follows is a basic primer and update.

Party and Candidate Reimbursements

As discussed in LofG, ch. 3, both parties and their candidates benefit from a partial reimbursement of their election expenses. For a registered party to qualify for the reimbursement, it must have won the support of at least 2 percent of votes cast in the election, or 5 percent of votes cast in the electoral districts in which the party ran candidates. If a party achieves either threshold, it is eligible to be reimbursed for half of its election expenses.

For candidates, the threshold for reimbursement is 10 percent of the votes cast in their electoral district. Candidates who achieve this threshold are eligible for a reimbursement of 60 percent of their election and personal expenses. Roughly half of the candidates who run in a general election are eligible for reimbursement, with most of these candidates running for the larger parties.

The In and Out Process

According to many political insiders and observers, parties often transfer expenses to their candidates’ campaigns, in part because the candidate election reimbursement is at a higher rate than the party rate (although this is less the case today than historically), and in part as a means to spend more than would otherwise be allowed by the party’s spending limit.

This practice came to light in a very colourful way following the 2006 election.  During the campaign, the Conservative Party was coming close to its own election spending cap.  It encouraged local candidates who had room left in their own expense limits to participate in a "regional media buy".  Candidates agreed to commit a certain amount of money to this effort.  In fact,  this money was (basically immediately) reimbursed by the Party -- that is, money was moved "in and out" of the candidate and Party coffers. 

The money transferred from the Party to the candidate was then reported to Elections Canada as an local candidate campaign expense, with candidates applying for their 60 percent reimbursement.  In this manner, the Conservatives received a) a larger reimbursement than would have otherwise been the case from the taxpayer and b) were able to roll together candidate and party spending caps in a matter that allowed more money to be spent by the collective candidate/party entity than the party itself would have been able to spend.

When the agency investigated, it found the money was actually spent by the national party, despite being routed through candidate campaigns.  Having deemed the expenses to be those of the Party, Elections Canada denied the candidate reimbursement.

The Party denied any wrongdoing, and argued that all major parties carry out this sort of activity.  It sued Elections Canada, seeking the reimbursement.  The party prevailed at the Federal Court, but then lost in March at the Federal Court of Appeal.

The Court of Appeal held, in essence, that the Chief Electoral Officer can in fact audit and verify election expenses claimed by candidates -- that is, he or she need not accept then at face value.  This is obviously a happy conclusion, as any other holding would render Canada's chief electoral watchdog a rubber stamp, to mix metaphors.

Second, the Court concluded that the Chief Electoral Officer's conclusion in relation to the in and out practice was reasonable on its merits.

The Charges under the Canada Election Act

The so-called in and out scheme also prompted the commissioner of Canada elections to investigate whether the Conservatives’ bookkeeping was designed to circumvent the party spending limit in contravention to the Elections Act.

In late February, the commissioner laid four charges against the Conservative Party and some of its agents and fundraisers alleging, in essence, that the in and out scheme was a intentional effort to circumvent the Party's spending cap in the 2006 election, and the party falsely reported compliance with this spending cap.

While the Conservative Party seems to be suggesting that the whole in and out affairs is an accounting dispute, these charges are criminal in nature, and if convicted there are criminal penalties -- the human beings who have been charged could be sentenced to a year in prison if convicted. 


Administrative Law Standard of Review as an Exercise in "Defaults"

Cross-referencing:  Laws of Government, Ch. 2

Since the Supreme Court's 2008 decision in Dunsmuir, the standard of review analysis in substantive administrative law has remained unsettled, to say the least.  On the one hand, the Dunsmuir decision seems to give primacy to the nature of the substantive question -- for example, error of discretion or law -- which then guides the analysis down a path of varying complexity depending on the nature of the error.  Discretion, for instance, is to be "generally" reviewed on a standard of reasonableness, while errors of law may attract either correctness or reasonableness depending on a series of considerations tied, in several instance, to the expertise of the decision maker or the signficance of the legal question to the Canadian legal system (whatever that might mean in practice).  I (and I believe others) have called these "default" assumptions that should guide review.

On the other hand, the Court did, in a throw-away paragraph, also suggest that further inquiry might be required with an eye to the old variables that were part of the pre-Dunsmuir "pragmatic and functional test".  These variables were subsequently re-invoked in the Supreme Court's Khosa decision and in a handful of other cases, suggesting that the Dunsmuir "defaults" were of little true consequence.

In February, 2011, the Supreme Court again partook in a standard of review analysis.  In Smith v. Alliance Pipeline Ltd., 2011 SCC 7, the Court seemed to put another nail in the coffin of to the still lurking pragmatic and functional test: "the extensive and formulaic inquiries of the past have now been replaced by the broader and less cumbersome approach set out by the Court in Dunsmuir" (at para. 23).  The Court then noted (at paras. 24 and 26):

reviewing judges can usefully begin their analysis by determining whether the subject matter of the decision before them for review falls within one of the non-exhaustive categories identified by Dunsmuir. Under that approach, the first step will suffice to ascertain the standard of review applicable in this case.

Under Dunsmuir, the identified categories are subject to review for either correctness or reasonableness. The standard of correctness governs: (1) a constitutional issue; (2) a question of “general law ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’” ...; (3) the drawing of jurisdictional lines between two or more competing specialized tribunals; and (4) a “true question of jurisdiction or vires” (paras. 58-61). On the other hand, reasonableness is normally the governing standard where the question: (1) relates to the interpretation of the tribunal’s enabling (or “home”) statute or “statutes closely connected to its function, with which it will have particular familiarity” (para. 54); (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwined legal and factual issues (paras. 51 and 53-54). 

Put another way, the Court applied the "defaults" and nothing but the defaults.  The result was a refeshingly succinct standard of review analysis.  With luck, this case marks a clear statement of the implications of Dunsmuir, putting to rest any doubts about that case's true impact on the standard of review analysis.


Giving up on electoral pariety: the abandonment of bill C-12?

LofG, 2nd Ed., ch. 3.

The Globe and Mail reported this week that the government will abandon efforts to enact bill C-12, the amendment to the Constitution Act, 1867that would expand and reapportion seats in the House of Commons to reflect democraphic reality.  This report is being contested by the Tories, and it is unclear exactly what will happen with this bill.

If, however, there is any truth to the matter, the spiking of this law project would be a truly unhappy moment.  As described in LofG, 2nd Ed., section 40 of the Constitution Act, 1867 anticipates the division of the country into “electoral districts” from which Members of Parliament are elected. This provision is prefaced by the phrase “until the Parliament of Canada otherwise provides,” permitting Parliament to readjust these districts from time to time without constitutional amendment.

These readjustments are, however, governed by two other constitutional provisions, both related to provincial representation. First, section 51A guarantees minimum numbers of MPs from each province equal to no fewer than the province has representatives in the senate. This senate floor rule is of importance mainly to smaller, maritime provinces.

Second, section 52 of the Constitution Act, 1867empowers Parliament to increase the number of MPs, “provided the proportionate Representation of the Provinces prescribed by this Act is not thereby disturbed.” Section 51 provides the formula for this “proportional representation” (the “1985 formula”), designed to provide a total number of seats in the House for each province proportionate to its overall population. (It should be noted that this provision does not dictate the size of electoral districts, such that some have greater populations than others within a particular province.)

There is, however, a “grandfather” clause in section 51 that, in practice, impairs absolute provincial representation by population. In no circumstance can the number of MPs calculated through the population formula fall below the number coming from each province as of the coming into force of the provision, in 1986. For several provinces, this provision has resulted in a higher number of MPs than the raw proportionate representation calculation would have produced.

Moreover, the 1985 formula includes a built-in limiter tied to the historic size of the Commons before population growth and change. The limiter puts a constraint on increasing the number of MPs for the fastest growing provinces, and as a result, these provinces are under-represented, as compared to the other provinces.

The Harper government had tabled bill C-12 to amend section 51 of the Constitution Act, 1867 by removing this limiter in the 1985 formula and revising it to better reflect representation by population. If the amendment were passed, the number of seats assigned to Ontario (in particular), Alberta, and British Columbia would  increase, relative to what would be the case under the 1985 formula.

Of course, the flipside would be a reduction in the relative influence in the Commons of provinces that benefit from the prior formula.  These provinces -- Quebec and the Maritime provinces, Saskatchewan and Manitoba -- would not lose seats, but the proportion of those existing seats as a total of the House of Commons would be reduced by the addition of new seats for the larger provinces.  That, one would think, is the inevitable consequences of believing that a citizen's vote should be of equal weight wherever they live.  Provinces with growing populations should not have the representation frozen by the demography of yesteryear.

If the bill is to die, the result is a House of Commons in which some provinces have an influence disproportionate to their share of the Canadian population and a Senate in which (often those same) provinces have an influence disproportionate to their share of the Canadian population.

It is legally unsound to assert that this imbalance, a function of provisions in the Constitution Act, 1867, violate the right to vote in s.3 of the Charter of Rights and Freedoms.  One part of the constitution cannot trump another part -- which tends to mean that constitutional provisions that are inconsistent with the rights in the Charter are immunized from those rights.  Still, the jurisprudence under s.3 is not endlessly accommodating of inequity in electoral district sizes within the provincial allocation of seats.  An inequity that stems from an inter-provincial skewing of seats is no less offensive to the principle defended by this s.3 jurisprudence: namely, that each person's vote should, within reason and subject only to limited and reasonable exceptions, have the same weight.

If this bill dies, Canadian democracy will be the poorer for it.


Laws of Government, 2nd Edition, available for pre-order

The second edition of the Laws of Government: The Legal Foundations of Canadian Democracy is now being printed and is available for pre-order from the publisher, Irwin Law.