Read this article by the Law School Blog Contributors.
Vote Dilution means Minorities Have Less Voice

 Here we will explore in detail the plans to terminate the separation between Church and State that is plotted by Stephen Harper and his allies within the Council For National Policy. This article is again provided to us by the contributors of the Law School Blog (Osgoode Hall)

see article below
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Harper Will Seek to Dilute Ontario Vote Even Further

We’ve addressed the issue of vote dilution early last year on this site.

Errol Mendes of UofO Law elaborated on the problem in an opinion piece in The Star today.  He covers a bill that would effectively increase the number of seats in the West, while proportionately reducing the number in Ontario.

One in ten Ontario citizens would be affected, but the worst off would be 1.1 million immigrants, most visible minorities who have arrived in the past 5 years.

Mendes continues,

Indeed, the gross lack of effective representation that would have resulted from Bill C-54 may well have called into question its constitutional validity. The Supreme Court in Attorney-General of Saskatchewan v. Roger Carter ruled that while Section 3 of the Canadian Charter of Rights and Freedoms does not guarantee total equality of voting power, it does guarantee the right to “effective representation,”

The court continued: “Relative parity of voting power is a prime condition of effective representation. Deviations from absolute voting parity, however, may be justified on the grounds of practical impossibility or the provision of more effective representation. Factors like geography, community history, community interests and minority representation may need to be taken into account to ensure our legislative assemblies effectively represent the diversity of our social mosaic. Beyond this, dilution of one citizen’s vote as compared with another’s should not be countenanced.”

While the ruling could justify smaller populations for rural ridings, the court also clearly stated that effective representation must also increase the number of seats to reflect population increases in urban areas…

Within a decade, one in three citizens in Ontario will be visible minorities, the majority living in ridings that would have been negatively affected by Bill C-54. That could be grounds for a constitutional challenge to future redistribution legislation based on Section 15 (1), the equality guarantee of the Charter.

We might well ask if Bill C-54 was a deliberate attempt to dilute the votes of visible minorities in the vote-rich areas of southern Ontario.

If that was the case, then not only was the bill in violation of Sections 3 and 15(1) of the Charter and, therefore, unconstitutional, it also was a despicable attempt to undermine the democratic foundations of this country.

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What he cannot change through force he will change through subversion. The Conservative Government and their masters within the Council For National Policy are attempting to secure a Sectarian Regime within Canada. All Atheists and those who value our Charter of Rights and Freedoms must awake and take appropriate action to defend against this plot.

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 I have also been contacted by counsel for the Attorney General of Ontario. As a result of the improper court procedure I must recommence the process to restore Canada’s age of sexual consent to age 14. Although members of a religious cult have control of the government and are passing laws ” because God told them”, we must still file the correct forms in the correct order to obtain a hearing. Even though they have directly violated our Charter of Rights and Freedoms that is a part of our Constitution, we are not permitted to skip steps in the legal challenge. Their delay tactic has worked. The counsel for the Attorney General of Ontario was bold enough to tell me that it will not be permitted for a single individual to challenge the Federal Government of Canada. This is a lie. A religious cult cannot pass laws that violate our rights based on their strange religious beliefs. They cannot raise the age of sexual consent or raise the voting age or take away a females right to vote for this reason. Rights protected by the Charter will be defended by me. It might take a while for us to correct this issue but the end result will be the same. The government will be held accountable for it’s actions and the separation between Church and State will be enforced and maintained in Canada.

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 See the content of a letter I received from the Attorney General of Canada in regards to the Notice of Constitutional Question.

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Dear Sir

RE: ALTAIR, Octaevius vs. Attorney General of Canada et.al.

I am counsel for the Attorney General of Canada assigned to this matter.

Our office received a document from you dated May 27, 2008, but it arrived at our office only on September 26,2008. It does not appear to have been properly served. The document is entitled “Notice of Constitutional Question”.

The document indicates that there will be a hearing on November 3, 2008 at 10AM at ________ Courthouse. Please confirm by return mail whether you will appear in court on November 3.

If so, I will attend and submit to the judge that this proceeding was not commenced properly and that the document you sent us is insufficient and is impossible to respond to. You have not served an originating process such as a statement of claim or a notice of application. Such a document is required in addition to the Notice of Constitutional Question. Futhermore, the document you sent to us does not clearly indicate who the parties are, nor the specific statutory provisions that you are challenging and the relief you are seeking from the court.

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 I certainly do intend to appear at the hearing next Monday. I will be contacting the Attorney General of Ontario’s office on Monday and responding to the Attorney General of Canada’s office. It would appear that yet again the Conservative Party is relying on “Bully-boy” tactics. They will attempt to thwart the hearing based purely on procedural error. As A citizen it is within our rights to challenge any violations of our Charter. I will take this stance at the hearing that it is unimportant what paperwork was omitted as it does not alter the act of the government that violated our Charter and Constitution. As a layperson I have pursued this matter without legal counsel as I cannot afford to pay for it. The Conservative government is well aware that the age of sexual consent increase was illegal. It will be restored to age 14 and it does not matter if it is resolved quickly at low cost or over a lengthy period at high cost to the government. The document I sent is quite clear that it was illegal to increase the age of sexual consent and why. It clearly states that it is also a violation of our separation between Church and State to alter laws based on religious cult beliefs of the party members in question who drafted this legislation and that is without due cause or reason other than strictly religious beliefs. For the office of the Attorney General of Canada to claim otherwise is false. Any who are capable of reading the English Language are able to understand the document and the matter at hand. The end result will be the same. More information will be provided after the hearing.

 ”… they want every I dotted and every T crossed. There is only one truth. The path we take is unimportant when our destination is the same..”   Octaevius Altair
                       

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 This was originally written by Wayne G. Stickland and available at a University of Toronto Web site. Sadly it was deleted – no doubt this is also due to the termination of the Court Challenges Program by the Harper government -.Since this is important information that enables citizens to defend their rights in court, it is too important to be deleted. I will re-post the entire article here.

The Process of Mounting a Charter of Rights and Freedoms Challenge

by: Wayne G. Stickland

INTRODUCTION

This paper will explore the process and the procedure in bringing a Charter of Rights and Freedoms¹ challenge in a civil proceeding in the province of Ontario. It is not meant to be a theoretical examination; rather, it is directed at those seeking a practical view of the procedural steps to be followed in bringing a Charter challenge.

There are two types of Charter challenges. Collateral challenges, where applicable, occur during the normal course of litigation. For example, in a criminal defence an applicant may seek protection from state action or inaction, which may have affected either the investigative process or the arrest and detention of the accused. In this example, the accused has already been charged; therefore, the Charter challenge arises in the course of criminal prosecution. As well, in a civil litigation case, the defendant may challenge the validity of a law or legislation upon which the plaintiff’s action, or application, is based. In either case, the applicant is seeking to challenge the validity of a law.

Direct challenges arise when an individual, or public interest group, files an originating process for the express purpose of challenging the constitutionality of a law. In most cases, the general argument by the applicant is that legislation has affected a party either by inclusion or omission. An example would be an applicant who argues that the exclusion of same sex couples from receiving family benefits violates section 15 of the Charter. Usually, the applicant is seeking to have the legislation declared invalid.

It should be noted that the Rules of Civil Procedure² might differ for each province. Therefore, readers in other provinces would be wise to consult the applicable rules in their province.

THE COLLATERAL CHALLENGE

Collateral challenges are the most frequent type of challenge. Because a collateral challenge arises in the course of litigation, the identity of the parties, the originating process, and the appropriate court have already been pre-determined by the nature of the action³.

However, if a party seeks to raise a constitutional issue, the declarant party must provide to the Attorney General of Canada and the Attorney General of Ontario a notice of constitutional question. Notice is required by Rule 109 of the Courts of Justice Act. ⁴

Rule 109 provides the Attorneys General with an opportunity to respond to any attacks on federal or provincial legislation. Further to rule 109(1), rule 109(4) provides that the Attorneys General are entitled to adduce evidence and make submissions to the court with respect to the constitutional question. Therefore, even if the Attorney General of Canada or Ontario is not named as a party, the respective governments, vis-à-vis the Attorney General, have the option of defending the respective legislation if a constitutional challenge should arise. In Ontario, notice has to be in the prescribed form 4F⁵ of the Rules of Civil Procedure.⁶

One may inquire as to when the notice must be served. Rule 109(2.2) of the Courts of Justice Act indicates that notice must be provided to all parties in the proceeding as soon as the circumstances requiring it become known. In any event, notice must be given at least fifteen days prior to the day in which the question is to be argued, unless the court orders otherwise⁷. It has been suggested that providing the proper notice is the fundamental element required in a collateral challenge. However, once proper notice has been given, when will the constitutional question be heard?

Normally, the trial judge in the main action will hear the constitutional question. However, parties are becoming increasingly concerned about the costs associated with litigation. In some cases, it may be more economical, or indeed procedurally correct, to determine a constitutional issue prior to the trial at a preliminary motion. The Ontario rules of civil procedure allow for the determination of an issue prior to the commencement of a trial.

Rule 20 permits the plaintiff or defendant to move for summary judgment. As well, it authorizes the court, where it is satisfied that the only genuine issue is a question of law, to determine the question and grant judgment accordingly.⁸ Therefore, requiring the constitutional issue to be determined prior to the trial will decrease the total time required to argue a proceeding. Although many issues are determined during the course of a trial, the nature of constitutional arguments is such that these arguments can easily become very long and protracted. It is not inconceivable, depending the constitutional issue, to devote two full days of court time to arguing a constitutional issue. For that reason, rule 20 is of particular importance. A prolonged trial transfers additional costs to both parties in the proceeding.

The effect of a successful motion for summary judgment is that the issue being argued can be decided prior to proceeding to trial. If the only issue to be decided is the constitutional issue, then a summary judgement, in effect, eliminates the need for a trial.

Rule 21 permits an applicant to narrow the issues at a motion hearing prior to proceeding to trial.⁹ Thus, this rule also assists a party in saving litigation costs by limiting the issues that must be determined at trial. Therefore, rule 21 is also beneficial to applicants who are fiscally constrained.

Finally, rule 22 permits parties to a proceeding to state a question of law in the form of a special case for the opinion of the court.¹⁰ Rule 22 allows a party to make an application to a judge to determine whether a constitutional issue really exists. There may be some disagreement between parties as to the extent of the issues, or even whether a constitutional issue exists; thus, rule 22 facilitates the narrowing of issues once again, thereby expediting the trial process.

It is possible that a constitutional issue would not be resolved prior to the commencement of the trial. It is also possible that the judge may find that a constitutional issue should be argued within the structure of the trial process and not at a hearing. In either case, the issue would simply be argued within the framework of the trial.

COLLATERAL CHALLENGES IN ADMINSTRATIVE TRIBUNALS

The legal system today is comprised of more than simply “courts” proper. Some issues, for example labour issues, are argued before administrative tribunals. These administrative tribunals are created by statute. Although the jurisdiction of administrative tribunals to consider the Charter has been questioned, guidance has been provided by the Supreme Court of Canada. In Cuddy Chicks Ltd. v. Ontario (Labour Relations Board)¹¹ a Union filed an application for certification of employees at a chicken hatchery. The issue in Cuddy Chicks was with respect to section 2(b) of the Labour Relations Act. That section stated that it did not apply to persons employed in agriculture. The Union argued that section 2(b) was invalid because it was contrary to section 15 equality provisions of the Charter¹². The issue was whether the board could consider and rule on Charter arguments. The majority of a panel, convened for the purpose of hearing the ultimate issue, held that the board had jurisdiction to rule on Charter issues. This jurisdiction was found in three authorities. The authorities were section 24(1) of the Charter, section 52 of the Constitution Act¹³, and section 106(1) of the Labour Relations Act. Cuddy Chicks did not agree with the ruling and obtained leave to appeal to the Supreme Court of Canada. The Supreme Court dismissed the appeal. The Court held that due to the principle of supremacy of the Constitution, confirmed by s. 52(1) of the Constitution Act, an administrative tribunal which had the power to interpret law also held a concomitant power to determine whether that law was constitutionally valid. The court further held that section 52(1) did not specify who could consider and rule on a Charter question; therefore, jurisdiction had to be conferred on the tribunal by its enabling statute. The tribunal did not need to be a “court” according to section 24(1) to have the authority to consider the application of the Charter. However, it had to have jurisdiction over the entire matter, that is the parties, the subject matter and remedy sought.

In Cuddy, the board had jurisdiction over parties; but since the subject matter and remedy were premised on the application of the Charter, the authority to apply jurisdiction had to be found in board’s enabling statute. Thus, since section 106(1) gave the board jurisdiction over questions of law and because a Charter issue had to be a question of law, the board had authority to apply the Charter. Its jurisdiction was only limited in that it could not give a formal declaration of constitutional invalidity.

Currently, rule 109(6) of the Courts of Justice Act states that section 109 applies to proceedings before boards, tribunals, and court proceedings.

THE DIRECT CONSTITUTIONAL CHALLENGE

A direct constitutional challenge raises many of the same issues that arise in a collateral challenge. However, unlike collateral challenges, the issues of parties, originating process, and the appropriate court are not defined by the nature of the action. Therefore, a direct challenge requires that the parties, the originating process and the court to be determined before a constitutional issue can be brought forth.

a) THE ISSUE OF STANDING

In order to determine whether a party can challenge the constitutionality of a law, the applicant must determine whether or not it has standing, or status, to mount a Charter challenge.

The question whether a person has standing (or locus standi) to bring legal proceedings is a question about whether a person has sufficient stake in the outcome to invoke the judicial process. The question of standing focuses on the position of the party seeking to sue, not on the issue that the lawsuit is intended to resolve.¹⁴

Professor Hogg indicates that the restrictions on standing are intended:

1. to avoid opening the floodgates to unnecessary litigation;

2. to ration scarce judicial resources by applying them to real rather than hypothetical disputes;

3. to place limits on the exercise of judicial power by precluding rulings that are not needed to resolve disputes;

4. to avoid the risk of prejudice to persons who would be affected by a decision but are not before the court;

5. to avoid the risk that cases will be inadequately presented by parties who have no real interest in the outcome; and

6. to avoid the risk that a court will reach an unwise decisions of a question that comes before it in a hypothetical of abstract form, lacking the factual context of a real dispute.¹⁵

Prior to the enactment of the Charter, standing was determined in accordance with the requirements as defined in the “trilogy of standing cases.”¹⁶ The trilogy of cases culminated in Finlay v. Minster of Finance¹⁷. The end result of these four cases is a very liberal interpretation of the rule determining standing. Professor Hogg has stated that:

[w]hile it is still the case that a private plaintiff has not right to bring a declaratory action when he or she has no special interest in an issue of constitutional or public law, the courts will grant standing as a matter of discretion to the plaintiff who establishes (1) that the action raises a serious legal question, (2) that the plaintiff has a genuine interest in the resolution of the question, and (3) that there is no other reasonable and effective manner in which the question may be brought to court.¹⁸

 

b) NOTICE OF CONSITUTIONAL QUESTION

Once an applicant has determined that they have standing, they must then establish whom they are going to name in the suit. Generally, because a direct challenge attacks the vires of legislation, the challenge must be directed at the makers of the legislation. Despite the fact that the Attorney General is named in the suit, the applicant must file a notice of constitutional question nonetheless. The steps required in filing a notice are the same as the steps that were previously discussed in the collateral challenge portion of this paper. Simply, the applicant must complete and serve a form 4F on the Attorney General of Canada, and the Attorney General of Ontario. Rule 109 (2.2) requires that the notice be filed at least 15 days prior to the hearing.

c) WHERE WILL THE CHALLENGE BE HEARD?

Section 24 (1) of the Charter provides that:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy, as the court considers appropriate and just in the circumstances. [Emphasis added]

What then, practically speaking, is court of competent jurisdiction?¹⁹

In Ontario, a court of competent jurisdiction can be one of three courts. One is the Divisional Court. The Divisional Court is comprised of a panel of three judges from the General Division Court. The purpose of the Divisional Court is to review decisions of administrative tribunals and to review government actions. The Divisional Court was created by the power of the Courts of Justice Act; therefore, the court only has the jurisdiction and powers that the statue confers upon it.

The remedies available through the Divisional Court are mandamus, prohibition, and certiorari. Mandamus is a discretionary prerogative writ issued by a superior court and used to compel public authorities to perform their duties. Mandamus may also be used to ensure the proper exercise of discretion, or to compel observance of the rules of natural justice where a duty to observe those rules is required by statute or can be implied. Prohibition is a process or writ issued by a superior court that prevents an inferior court or tribunal from exceeding its jurisdiction or usurping jurisdiction with which it has not been vested by law. Finally, a certiorari is a means of achieving judicial review. A certiorari is issued from a superior court to one of inferior jurisdiction, inquiring into the validity of the latter. The writ is used to determine of there have been any irregularities in the proceeding of the inferior tribunal.²⁰ The court does not have the authority to declare a statute invalid.²¹ In more practical terms, the Divisional Court would be the appropriate court to bring a Charter challenge against an employee of a government ministry, such as the Ministry of Transportation. If an employee of the Ministry denied a licence applicant the right to obtain a licence, and applicant may bring a Charter challenge claiming that his section 15 equality rights have been infringed.

Another court is the Federal Court. The Federal Court is a statutory court similar to the Divisional Court. The Federal Court can hear constitutional issues that relate to Federal legislation. However, since the Federal Court is also a statutory court, it is subject to the same limitations that are imposed upon the Divisional Court (outlined above). It should be noted that review of Federal legislation is not required to occur in the Federal Court. It is possible to have the Ontario Court General Division hear cases dealing with Federal legislation and constitutionality.

The High Court of Justice is the third court where a party may bring a constitutional challenge. Unlike the other two courts, the High Court of Justice is a court of inherent jurisdiction; therefore, it is always a court of competent jurisdiction. Because it is a court of inherent jurisdiction, it can grant remedies similar to those outlined above in addition to having the authority to declare legislation invalid. However, the High Court of Justice is not always the most appropriate court in which to commence an action. For example, if the subject matter of the a challenge is already before another court or tribunal, that court would be more appropriate to hear the issue.

d) ORIGINATING PROCESS

The final step to be examined with respect to direct challenges is process. With which process, by an application or by an action, should a party commence a constitutional challenge?

Generally, proceedings are commenced by way of an action. The originating process of an action is issuance of a statement of claim. (Rule 14.01)

14.01 (1) All civil proceedings shall be commenced by the issuing of an originating process by the registrar of the court in which the proceeding is to be commenced, except where a statute provides otherwise and as provided in subrules (2) and (2.1).

Then the originating process is issued. (Rule 14.07)

14.07 (1) An originating process is issued by the registrar’s act of dating, signing and sealing it with the seal of the court and assigning to it a court file number.

(2) A copy of the originating process shall be filed in the court file when it is issued.

If an applicant has insufficient time to prepare a statement of claim, a notice of action may be issued. (Rule 14.03)

14.03 (2) Where there is insufficient time to prepare a statement of claim, an action other than a divorce action may be commenced by the issuing of a notice of action (Form 14C) that contains a short statement of the nature of the claim.

After a statement of claim has been served, a statement of defence must be served and filed in response if the respondent chooses to defend the action. (Rule 18.01)

18.01 Except as provided in rule 18.02 or subrule 19.01(5) (late delivery of defence) or 27.04(2) (counterclaim against plaintiff and non-party). A statement of defence (Form 18A) shall be delivered,

(a) within twenty days after service of the statement of claim, where the defendant is served in Ontario;

(b) within forty days after service of the statement of claim, where the defendant is served elsewhere in Canada or in the United States of America; or

(c) within sixty days after service of the statement of claim, where the defendant is served anywhere else,

18.02 (1) A defendant who is served with a statement of claim and intends to defend the action may deliver a notice of intent to defend (Form 18B) within the time prescribed for delivery of a statement of defence.

Once pleadings have been closed, a notice of examination for discovery of documents can be served on every party that has been joined in the proceeding. (Rule 30)

Following the examination for discovery of documents, either party could make a motion under rule 20, 21, or 22 of the Rules of Civil Procedure.²² A motion under one of the preceding rules can be made anytime after the statement of defence has been filed. Assuming that the motions were not successful, and the examination for discovery process has been completed, the proceeding then moves to trial.

Rule 14.05 of the Rules of Civil Procedure indicates that in some cases a challenge may be brought by an application rather than by an action. Proceedings may be commenced by an application where authorized by a statute (Rule 14.05 (2)) or where authorized by the Rules of Civil Procedure. (Rule 14.05(3)).

Notice of Application
14.05 (1) The originating process for the commencement of an application is a notice of application (Form 14E, 68A, 73A, 74.44 05 75.5).

Application under Statute

(2) A proceeding may be commenced by an application to the Ontario Court (General Division) or to a judge of that court, if a statute so authorizes.

Application under Rules

(3) A proceeding may be brought by application where these rules authorize the commencement of a proceeding by application or where the relief claimed is,

(g.1) for a remedy under the Canadian Charter of Rights and Freedoms; or

 

Following the notice of application, the applicant must then serve the notice of application and all supporting affidavits. (Rules 38.06 and 39.01(2))

Once the notice of application and supporting documents have been served upon the respondent, the respondent, if they should choose to defend, must serve and file a notice of appearance. (Rule 38.07(1))

Notice of Appearance

38.07 (1) A respondent who has been served with a notice of application shall forthwith deliver a notice of appearance (Form 38A).

A respondent who does not deliver a notice of appearance is not entitled to receive notice of any step in the proceeding or other document. Nor is the respondent able to file material, examine a witness, cross-examine on an affidavit, or be heard at the hearing except with the leave of the judge.

If the respondent party has filed a notice of appearance, then the examination of witnesses follows. (Rule 39.03) The parties can cross-examine the opposing parties on the affidavits. (Rule 39.02)

After the process of completing the preceding steps results in each party creating an application record. The respective parties must then file and serve their respective application records to the required parties. Once the parties have been filed and served, the hearing of the application can be completed. At the hearing stage, the presiding judge may either grant the relief sought, dismiss, or adjourn the application in whole or in part with or without terms. In the alternative the presiding judge may order that the whole application, or a single issue, proceed to trial and give such directions as are just (Rule 38.10(1))

Upon a quick reflection of the rules, it is painfully obvious that the rules were not designed in contemplation of the complex constitutional cases proceeding on this basis. For example, rule 39.01(3) simply requires a party to serve and file their documents the day before the hearing is to take place. If counsel were to abide by this last minute deadline, the hope of proceeding in a timely manner would be eradicated simply because opposing counsel would no other alternative than to seek an adjournment. The best resolution to this problem it to have a mutual agreement with opposing counsel for co-operation. It is only with the co-operation of both parties that an application can proceed expeditiously.²³

Prior to the adoption of the new Rules of Civil Procedure (post 1985), the issue of originating process was vital. If counsel commenced a proceeding in the wrong originating process, the proceeding may have been quashed. The offending party would then have to start a new originating process in the proper method. This would translate into great costs to the litigants. However, rule 38.11 of the Rules of Civil Procedure gives the court the authority to convert a proceeding commenced by notice of application into an action.

Now, because of rule 2.01, failure to comply with rules of originating process does not render a proceeding a nullity.

However, in the interest of costs and fiscal constraints, it is still in the best interest of counsel to determine the best process so that additional time and cost can be avoided.

CONCLUSION

In conclusion, I hope that I have been able to adequately delve into the procedure and process of mounting a Charter claim. As previously mentioned, I have tried, wherever possible, to relay as much information as I thought would adequately describe the required steps. If you should find that I have neglected to reflect upon some vitally important procedural step, I would hope that you would contact me so that I may update this informational site. With anticipated diligence, I hope to update this paper and provide current, and relevant information.

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Endnotes

1. Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11. [hereinafter, the Charter]
2. J.J. Carthy, W.A.D. Millar & J.G. Cowan, The Ontario Annual Practice, 1996-97 (Aurora: Canada Law Book, 1996
3. For a comprehensive discussion of the steps in an action or application, please see below.
4. Courts of Justice Act, R.S.O. 1990, Chap. C.43 [hereinafter, the CJA]
5. See Appendix A.
6. Rule 109. (2.1) CJA
7. Rule 109. (2.2) CJA
8. R.E. Charney, “Litigating Charter Claims” (Address to Canadian Bar Association-Ontario, Continuing Legal Education Seminar, 15 April, 1989.)
9. Supra, note 8.
10. Supra, note 8.
11. [1991] 2 S.C.R. 5
12. It was also argued that s. 2(b) also violated s. 2(d) of the Labour Relations Act.
13. Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
14. P. Hogg, Constitutional Law of Canada (Toronto: Carswell, 1996)
15. Ibid.
16. See Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; Nova Scotia Censor Board v. MacNeil, [1976] 2 S.C.R. 265; and Borowksi v. Attorney General of Canada, [1981] 2 S.C.R. 575.
17. [1986] 2 S.C.R. 697
18. Hogg, supra note 17.
19. For a very comprehensive and theoretical interpretation of jurisdiction of courts, see J. Sack Q.C., “Where to go and how to get there-Questions of Forum and Form in Charter Litigation” (Address to the Canadian Bar Association, October 25-25, 1986.)
20. J.A. Yogis, Canadian Law Dictionary (New York; Barron’s Educational Series, 1995)
21. See Re Service Employees’ International Union and Broadway Manor (1985), 48 O.R. (2d) 225.
22. See the above descriptions of Rules 20, 21, and 22.
23. Charney, supra note 8.

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 Many will recall the 52 reasons to get rid of the Conservatives here. If that is not enough please see even more reasons:

        Today’s Reason to Dump Harper    this article is from Xtra.

                                                                                                                                                                                              

– HEY HARPER: WHAT HAVE YOU DONE FOR US LATELY?

The Tories and gays: they’re so naturally opposed, that only 10 percent of homos voted for a Conservative in the last election.

And for good reason: how often do you see a Conservative make a public statement in support of queer Canadians?

Harper has never attended a Pride parade. But Liberal leader Stephane Dion had a strong presence in this year’s Montreal Pride parade, and NDP leader Jack Layton has attended more parades than most gays.

Remember when Conservative MP Tom Lukiwski’s past anti-gay comments were revealed earlier this year? Harper said the comments were “unacceptable” but he stood by Lukiwski. Harper managed to speak about the issue without even saying the word “gay.” Wouldn’t that have been a perfect time to make a statement encouraging all Canadians to fight against homophobia?

Harper says he’s a leader, but he sure isn’t a leader for our community.

- GOOD LUCK TALKING TO A TORY

The Tory election machine is adopting an old strategy to deal with criticism: silence.

An Ottawa debate on arts funding drew candidates from the NDP, Liberals, Greens and Bloc. The Tories? They didn’t even bother to show up and defend the government’s decision to slash arts funding.

So where were they? Well, apparently Tory candidates are only supposed to talk about local issues.

It’s a measure aimed at preventing further gaffes, notes the CBC, who also point out that “local access has been an issue for the party since the 2004 campaign when candidates [mused] about official bilingualism, abortion and the Charter.”

It seems like the Tories are afraid of what their rightwing cadidates might say if they were unleashed and free to talk to the media.

- HARPER THINKS HE SPEAKS FOR “ORDINARY CANADIANS”

Stephen Harper thinks he knows you. He thinks you’re getting more conservative, that you don’t care about arts funding, and that you fear Canada is becoming more dangerous.

At least, that’s been his message track this past week, as he claims to speak for “ordinary Canadians.”

Harper defended his arts and culture funding cuts, saying that “ordinary Canadians” don’t care about arts funding. Tell that to the thousands who have joined Facebook groups such as Ordinary Canadians DO SUPPORT the arts, Faceless and an anti Bill C-10 group, all in protest of Harper’s cuts to arts and culture.

After Harper announced more tough-on-crime measures this week, criminologists blasted his plan. They say it will only increase prison costs and do nothing to deter crime, which is on a downward trend anyway. Harper’s response? “We’re listening to ordinary people.”

Who are these “ordinary people” anyway? Harper is simply ignoring facts and pandering to people’s fears and gut reactions.

To top it off, he says your average Canadian is “more conservative these days.” On Oct 14, let’s prove Harper wrong and show him just how progressive Canadians can be!

- HARPER AN INTERNATIONAL EMBARRASSMENT ON ABORIGINAL ISSUES

The Tories got a lot of press when they apologized on behalf of the federal government to former students of the residential school program. But don’t be mistaken: the Conservatives are no champions of aboriginal rights.

When the Tories came to power in 2006, they scrapped the Kelowna Accord, a $5.1-billion plan to improve education, employment and living conditions for aboriginal peoples.

During the 2006 election campaign, Monte Solberg — now a Tory MP — said that the Kelowna Accord was “something that they [the Liberals] crafted at the last moment on the back of a napkin on the eve of an election.” In his ignorance, Solberg seemed to forget that the Accord followed 18 months of formal talks.

Canada’s treatment of aboriginal peoples reached an embarrassing low in 2007, when the Harper government refused to sign the United Nations’ Declaration on Rights of Indigenous Peoples. Canada is one of only four countries in the world to oppose the document, which sets out human rights standards to which states and indigenous people should aspire to.

Harper even ignored the will of Parliament, when former prime minister Paul Martin introduced a private member’s bill in 2006, seeking to implement the Kelowna Accord. The bill passed with support from the Liberals, Bloc and NDP — but the Tories simply ignored it.

- TORIES WEAK ON ECONOMY

During the 2006 election campaign, Harper made a promise to cut Canada’s GST.

Although a GST reduction is popular with the average voter, nearly every economic expert argued that Canadians would benefit more from reductions in personal income tax cuts.

But of course, nobody likes paying GST — and Harper painted himself as a tax-cutting champion, out to save Canadians money. The tactic worked, unfortunately.

So the GST came down: first to six percent, then to five percent. But Canadian government revenues came down as well, costing the feds $11 billion a year.

Now, the Liberals accuse the Tories of hiding a budget deficit, just like Mike Harris’ Progressive Conservatives did in Ontario before they were booted out of office. So much for the Tories being the party of sound fiscal policy.

You have to wonder: if Harper gets reelected, where will he find the extra cash to throw kids in jail and fight wars on the other side of the world?

- TORIES TARGET THE CBC

The Tories recently sent a fundraising letter to its members, with a list of loaded questions such as this one: “The CBC costs taxpayers over $1.1 billion a year. Do you think this is (1) a good use of taxpayers’ dollars or (2) a bad use of taxpayers’ dollars?”

When reporters asked Harper about the CBC question, he simply said that as the PM, he will “always support the government’s budget.” That’s a vague answer, and it’s frightening that Harper didn’t come out in support of Canada’s public broadcaster.

So what lies in store for the CBC, if Harper gets a majority? Take a look at the rightwing National Citizens’ Coalition’s website for an answer. Keep in mind that Harper was president of the NCC from 1998 to 2002.

In the NCC’s “Agenda for Canada,” the group poses a question, worded almost exactly like the Conservative fundraising letter: “The CBC costs taxpayers about $1 billion a year, yet its audience share continues to dwindle. Are taxpayers getting their money’s worth?”

The NCC says “no” and then suggest that the feds “privatize the CBC.”

Recent arts cuts have shown that the Tories are willing to slash funding for Canada’s cultural institutions. So it’s not hard to imagine Harper taking some advice from his former buddies at the NCC and axing the CBC.

- HARPER SEEKS INFRASTRUCTURE PRIVATIZATION

More than four out of five Canadians live in cities and towns, according to Stats Can, yet our urban infrastructure is crumbling. The Conservatives’ answer? Privatization.

The 2008 federal budget quietly announced the creation of PPP Canada Inc — a new Crown corporation that seeks to create more public-private partnerships (known as P3s). These “partnerships” are a way for government to contract the private businesses to build and operate infrastructure projects.

But evidence suggests P3s actually cost more in the long term, and union leaders have blasted the secrecy that often surrounds P3 contracts. And by entering into a P3, government surrenders control over the quality of the service or project. Private companies will always be interested in keeping costs down, even at the expense of quality.

Canadians need better transit, roads and hospitals, but privatization is not the answer.

- NEW NAME, SAME OLD RADICAL ROOTS

In the four years since the Alliance and Progressive Conservatives merged to form the new Conservative Party, the Tories have carefully tried to put on a mask of moderation.

But despite the party’s attempts to brand themselves as more centrist and far from their radical Reform party roots — you can be sure those rightwing values still dominate. We’ve seen the social conservative values of the Tories, even under a minority government. From reopening the same-sex marriage debate to tough-on-crime legislation, there’s nothing progressive about the Conservatives.

Conservatives, Reform, Alliance — they’re just different names for the same, rightwing party.

- HARPER TURNS BACK CLOCK ON GENDER EQUALITY

Representation of women in Parliament has stalled at 21 percent — and the Tories aren’t helping to raise that number. Canada ranks 51st in the world for its number of female politicians

In the 2006 election, only 11 percent of Tory candidates elected were women. Why so few?

No doubt they’ve been turned off by the Harper government’s appalling record on gender issues.

The Tories removed the word “equality” from the mandate of the Status of Women Canada. And let’s not forget the Unborn Victims of Crime Act and cuts to the Court Challenges Program (more on those later).

A Conservative majority would set the clock back even further on gender equality.

- TORIES BEND ELECTION LAWS

Remember back in Apr 2008 when the RCMP raided the Tory headquarters?

Elections Canada accused the Tories of exceeding their campaign spending limit in the 2006 federal election. Allegedly, the Conservatives paid for a national ad campaign by funnelling money through local candidates — a move that breaks Canada’s election financing rules.

On Sep 17, the Toronto Star reported that senior Tories admitted that the ads were produced for the party’s national campaign and had no relation to candidates or local issues.

The Commons ethics committee summoned Tories to testify about the scandal — but many failed to show up.

On Sep 16, the Ottawa Citizen reported that workers on Conservative campaigns who declined to take part in the money transfer were denounced as “idiots” and a “bunch of turds” by senior party officials.

So much for accountability. Along with reports that the Tories are using taxpayer dollars for partisan flyers (see reason #31), it’s clear that the Conservatives like to play dirty politics during election campaigns.

- HARPER’S WINGNUTS, IN THEIR OWN WORDS

“The danger in having sexual orientation just listed, that encompasses, for example, paedophiles,” Conservative MP Cheryl Gallant told CTV in 2004, talking about including gay men and lesbians in hate propaganda legislation. “I believe that the caucus as a whole would like to see it repealed.”

Tory MP Pierre Poilievre said he would also ask Finance Minister Jim Flaherty to withhold from federal transfer payments any money spent by the Ontario government on the sex-change program.

“I think if people want this medically unnecessary treatment, they have that right,” Poilievre said. “But taxpayers should not have to pick up the tab for it.”

And Garry Breitkreuz, the Conservative MP for Saskatchewan’s Yorkton-Melville riding, accused the federal government of pandering to homosexuals in 2000.

“In the 1950s buggery was a criminal offence,” he said. “Now it’s a requirement to receive benefits from the federal government.”

— compiled by Krishna Rau (read the full story: The crazies in Parliament)

- HARPER’S TRADITIONAL ‘FAMILY VALUES’

You’ve seen them everywhere: those television ads of Harper in his sweater vest, getting all warm and gushy while talking about his family.

“Time is precious, but being a father is the best experience of my life,” Harper says in one ad that doesn’t even touch on a single Tory policy. But that’s okay, Harper loves spending time with his children — what a likeable guy! At least, that’s what the ads would like us to believe.

Heck, even the Conservative’s website is plastered with images of Harper’s perfect nuclear family: mom, dad, daughter and son. Flick through the website’s different sections, and you will see a variety of exciting pictures: Harper and family by the patio window, Harper and family on the sofa, and Harper posing for photos with a family in BC.

The message is clear: vote Conservative to support traditional family values. It’s a tactic used by Republicans in the US, as vice-presidential candidate Sarah Palin rounds up her kids for photo ops and describes herself as a tough-talking hockey mom.

But Harper isn’t a family man. The Tories tried to bury a government-commissioned report that found children do just as well when raised by same-sex parents as they do when raised by opposite-sex couples. And let’s not forget that the Tories scrapped the Liberal’s childcare program that sought to create more daycare spaces.

Of course, the Tories would love to talk about how Laureen Harper loves cats and gardening. Harper’s family values message track is yet another example of how the Conservatives are trying to distract Canadians from real issues.

- TORIES USE YOUR MONEY FOR PARTISAN FLYERS

House of Commons rules allow MPs to print and mail flyers at taxpayer expense, for the purpose of informing constituents about parliamentary issues.

But in the weeks leading up the election call, Conservatives have abused this privilege. In Ottawa, Tory MP John Baird sent flyers — paid for by taxpayers — that closely resemble Conservative campaign literature. They hammer the Liberals for their Green Shift policy and accuse Dion of planning to raise the GST. Similar partisan flyers have been sent by Conservative MPs across the country, often to ridings held by opposition MPs: from Vancouver to Ajax.

Further proof that the Harper government likes to play dirty politics.

- HARPER MUZZLES HIS OWN MPS

In 2006, two gay Mounties announced they were getting hitched — a first for the RCMP. Shortly after, the Prime Minister’s Office sent out a gag order to all Tory MPs, warning them not to comment about the wedding. At Xtra.ca, we’re no fans of marriage — or the RCMP for that matter — but what exactly was Harper afraid of? Perhaps the PMO was worried that someone like rightwing MP Cheryl Gallant might make yet another embarrassing, homophobic comment?

And if you’re a Tory MP, don’t dare question your party. Former Conservative MP Garth Turner spoke out against David Emerson’s defection from the Liberals to the Conservatives. Soon after, Turner was turfed from the party.

These are just a few examples of how the Harper government is tightly controlling its message, in an effort to suppress any dissent and hide its rightwing ideology from the media.

- HARPER’S ACCOUNTABILITY HYPOCRISY

Harper campaigned on a platform of government accountability and Senate reform, promising not to appoint anyone who was unelected to the cabinet or to Parliament’s upper chamber.

But in Feb 2006, Harper did just that: he appointed unelected lawyer Michael Fortier to the Senate and his cabinet.

So much for democratic process and accountability to voters.

- BRING THE TROOPS HOME

Since the Afghanistan mission began in 2002, 97 soldiers have lost their lives. The majority of Canadians do not approve of the mission, and rightly so — it’s an unwinnable war and it’s unclear if our presence is actually changing things for the better.

With the count of dead soldiers likely to hit the symbolic level of 100 within this election campaign, Harper is feeling the heat. He announced Sep 10 that troops would be out by 2011, but he leaves open the possibility that soldiers may deployed elsewhere in the country. And of course, Parliament could still pass a resolution to renew the mission. Could we really trust Harper to keep his word if he gets a majority?

Enough is enough. Let’s bring our troops home.

- HARPER USES FASCIST LEGAL TACTICS TO SILENCE OPPOSITION

In May 2005, the minority Liberal government faced a confidence vote, and they needed the support of independent MP Chuck Cadman to pass budget amendments. Cadman was ill, but he travelled to Ottawa to support the Liberals, and his vote prevented the Tories from forcing an election. He was living with cancer at the time, and he died a few months later.

Earlier this year, his widow alleged that Conservative party officials offered Cadman a $1-million life insurance policy, in exchange for his help to defeat the Liberals in the May 2005 vote.

The Liberals pounced on the allegations and grilled the Tories in Parliament and in public, alleging that Harper knew of the Cadman deal and personally approved it. In response, Harper took the unprecedented action of launching a $3.5-million libel lawsuit against the Liberals, for statements posted on the party’s website regarding the Cadman affair.

It’s thought to be the first time that a Canadian prime minister has launched legal action against the opposition. Whether the allegations are true or not, the use of libel chill to intimidate the opposition is anti-democratic.

“This use of legal action to silence the opposition is characteristic of authoritarian governments,” says constitutional expert and University of Toronto professor Peter Russell, in court documents filed by the Liberal party.

- “TOUGH ON CRIME”? WHAT CRIME?

Harper’s solution to crime? Throw the buggers in jail!

After a few violent crimes in 2005 attracted national media coverage, Harper played into the fear that Canada was becoming a violent, dangerous place. He campaigned in the 2006 federal election on a “tough on crime” agenda, proposing to “reclaim” the streets for the safety of Canadians.

But in reality, Canada isn’t facing an epidemic of violent crime. Statistics Canada reports that homicides have been on a general downward trend since the 1970s.

That didn’t stop Harper from ramming his omnibus crime bill through Parliament earlier this year. Only one MP, NDP Bill Siksay, had the guts to vote against the bill, despite facing discipline from his own party for doing so.

Evidence from around the world suggests that mandatory jail terms do not decrease crime rates. Think about it: do criminals really consider the length of their jail term before committing a crime?

One thing is certain though: throwing more people in jail increases prison costs. It’s more of the same heavy-handed, Conservative approach to crime and more avoidance of the root causes, including poverty and cuts to social programs.

- SOCIAL CONSERVATIVE TOPS THE PMO

A July 2008 shakeup in the Prime Minister’s Office vaulted one of Canada’s most prominent Christian conservatives into the role of Harper’s director of policy. The new policy chief is Darrel Reid, the former president of Focus on the Family Canada.

Focus on the Family – it sounds so squeaky clean and benign! But the group is known for its anti-gay agenda. Reid led the organization from 1998 to 2004, and he actively campaigned against same-sex marriage and what he describes as the “decay of the natural family.”

In a 2005 interview, Reid warned Americans against “social radicalism” in Canada, particularly Quebec. He said that “when it comes to marriage, sexual mores and abortion, that’s not reassuring.”

And in a 2002 editorial, he encouraged “social conservatives from all our parties and traditions [to] begin to reinsert their most deeply held convictions into our nation’s political discourse.”

This guy is already guiding Harper’s policy direction. Let’s get the Tories out of power before he can cause any more damage.

                                                                                                                                                                                              

All of Canada must do whatever is required to oppose the will of a tyrant.

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