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Although the Canadian legal system has many virtues, it has at least one major weakness – its judicial appointments and promotion systems. The paper begins by identifying six key values that need to be considered in order to assess the legitimacy of a judicial appointments process – independence, impartiality, representativeness, transparency, accountability and efficiency. In the following sections, through the use of three case studies of appointments to the Supreme Court of Canada, the superior courts of Nova Scotia and a promotion to the Federal Court of Canada, we demonstrate that Canada has failed to live up to these values. We conclude by suggesting that recent reforms to the judicial appointments processes by the current government are an improvement, but that more radical reforms are essential to enhance public confidence in the integrity of Canada’s judicial appointments and promotion systems.

This article explores the current state of Canadian legal services regulation and changes that are impacting it. The authors argue that the only legitimate purpose for legal services regulation is the protection of the public interest, and this goal is best achieved through risk regulation. The article discusses four roles risk plays in regulation: as an object of, and justification for, regulation, as an organizing principle, and as a measure of accountability. It includes practical examples and comparisons to other jurisdictions and professions. Finally, the authors recognize that substantial changes will be required to shift to a risk regulation regime for legal services, but that such a change is necessary.

Israeli proponents of the enactment of a legislative override often invoke Canada as a model that Israel should follow. Their proposals would allow the Knesset to ‘override’ a decision of the Supreme Court of Israel that strikes down a law on the ground that it violates a Basic Law. Proponents of an Israeli override seek recourse to various types of argument to support their position. This article focuses on one such argument: the use of Canada as a model to support the Israeli argument for enacting an override. It argues that in order to evaluate both the value of adopting the Canadian override and the likelihood of its transplantation to Israel being successful, one needs to acquire a deep understanding of its operation in Canada. The article contains four sections in addition to the introduction. Section 2 briefly explains what ‘the Canadian override’ is and how it came to be. Section 3 analyses the positive attraction of the Canadian override as a constitutional model, and identifies three different models of the Canadian override. Section 4 focuses on the Canadian experience with its override. It explains why Canadians have come to view it in negative terms – the ‘bête noire of Canadian constitutional politics’– because of the manner in which it was adopted and the circumstances in which it was first used. Section 5 concludes with some thoughts on legal transplants, legitimacy and lessons for Israel from the Canadian experience.

Discussions and depictions of lawyers in Canada largely ignore a significant segment of the legal population: government lawyers. Canada is a modern liberal democratic state with a significant public sector employing a large number of lawyers in many public sector settings. Lawyers who work directly for the executive branch – government lawyers – are a special subset of public lawyers. These government lawyers are ‘unique’ in many respects. They do not have paying clients as do private sector lawyers. Their client is ‘the Crown’ – an abstract emanation of the state. This article explains the unique role of government lawyers in Canada as derived from the historic and legislative responsibilities of the Attorney General. It then addresses questions that arise for government lawyers in Canada in public law litigation.

This chapter explains the constitutional status of the Supreme Court of Canada with attention to the Court’s composition, jurisdiction, and procedure. The chapter discusses the Supreme Court’s 2014 decision in Reference re Supreme Court Act, ss 5 and 6 and considers whether and how that decision limits Parliament’s authority to make changes to the Court. Both the process for appointing Supreme Court of Canada justices and the process for appointing other federal judges to the country’s superior courts are explained. The authors argue that both appointment processes are inconsistent with democratic ideals of transparency and accountability. They examine the emerging scholarly and professional consensus on the importance of institutional diversity on the bench, and conclude that the continuing lack of diversity in the federal judiciary raises legitimate political and constitutional concerns.

The title of this report would seem to be drawn from the pages of a Jane Austen novel. In actual fact, civility is a top issue for the legal profession in Canada. Contrary to popular stereotypes about Canadians being exceedingly polite and bland, Canada apparently has a civility problem. At least the legal profession thinks that lawyers in this country do. The last decade has witnessed the rise of a civility movement within the Canadian legal profession. It has parallels with the movement south of the border which seems to have run its course. In Canada, the civility movement stands at a crossroads with the high profile discipline hearing of a flamboyant lawyer seemingly putting civility itself on trial. The emphasis on civility risks overshadowing the more important issue of access to justice.

Conflict of interest has been a leading issue in the Canadian legal profession over the last three decades, and it shows no sign of abating. No other issue has so consistently and dramatically dominated both the practice of law and its regulation in Canada. This article describes the conceptual and political battles that have been fought over conflicts of interest in Canada during this time. These battles reveal deeper ontological divisions about the practice of law in Canada. The clash over conflicts of interest exposes competing conceptions of what it means to be a lawyer in Canada in the twenty-first century and how the legal profession should be governed. The conflicts of interest debate increasingly centres on the idea of 'lawyer loyalty' - the duty of loyalty owed by lawyers to their clients.

This paper was submitted to the House of Lords Select Committee on the Constitution by invitation to comment on the proposed Fixed-Term Parliaments Act. It addresses only the Canadian experience with fixed election date legislation.As of September 1, 2010, the federal government and eight of the thirteen provinces and territories in Canada have enacted similar fixed-term Parliaments legislation. Such laws are referred to in Canada as “fixed election date” legislation because they generally set a specified date for elections at four year intervals, rather than imposing a limit on the duration of Parliaments as the proposed Fixed-Term Parliaments Act does. All such laws have limited legal force because they explicitly preserve the powers of the Governor General or the Lieutenant-Governor (in the case of the provinces) to dissolve Parliament. Only a constitutional amendment can alter the Governors’ powers.As a further result of the continued constitutional power of the governors over dissolution and the lack of power to alter this through ordinary legislation, fixed election date legislation in Canada is little more than a statement of political intention. This has been demonstrated most clearly in the federal case where the Prime Minister ignored his own fixed-election date legislation which provided that a general election was scheduled for October 2009. Instead, the Prime Minister sought and received an early dissolution from the Governor General in September 2008 for an election the next month. The legality of this course of action was later confirmed by the courts. At this point, the federal fixed election date legislation is widely considered to be a failure.The experience of fixed election date legislation in the provinces and territories has differed from the federal experience, in large part due to the existence of majority governments in those jurisdictions. As of September 1, 2010, six elections have been held under a fixed election date regime. The conventional wisdom is that fixed election date legislation is working in the provinces/territories but has not gotten off the ground at the federal level. However, I believe that this account is too simplistic. A deeper analysis reveals that proponents of fixed election date legislation overpromised and underdelivered. Moreover, even where they appear to be working, fixed election date laws may be contributing to the continuing degradation of the democratic body politic in Canada.Fixed election date legislation grew out a general malaise with Canadian politics in the 1990s captured in a phrase well-known to observers in this country: “democratic deficit.” Legislation was supposed to increase transparency, level the political playing field, improve governance and increase voter turnout. At best at this early juncture, the results are mixed. The legislation has certainly not increased voter turnout nor has it increased public faith in the electoral system. It creates the potential for future clashes between the Governor General and the Prime Minister, and between their provincial counterparts. For those considering fixed-term Parliaments, the Canadian experience with fixed-election dates produces two questions. What is the problem for which fixed-term Parliaments are intended to be the answer? Might there be other problems created by fixed-term Parliaments?

This article is a chapter in the book Parliamentary Democracy in Crisis which is a collection of essays analyzing the parliamentary crisis in Canada from the end of November 2008 to January 2009. After the October 15, 2008 election returned a minority Parliament led once again by Conservative Prime Minister Stephen Harper, the opposition parties coalesced to form a proposed coalition to defeat the government on a non-confidence vote and govern in its stead. The non-confidence vote was set for December 8, 2008 but on December 4th, the Prime Minister visited the Governor General and made the unusual request to prorogue the new Parliament until the third week of January 2009. After a meeting that lasted over two hours, the Governor General acceded to this request and the crisis was averted. The Prime Minister did not disclose what transpired between him and the Governor General and she did not provide any reasons for her decision. The authors of this article argue that while constitutional convention circumscribes the role of the Governor General, it does not extend to preventing her from justifying her decisions to the public. In a constitutional culture increasingly tied to an 'ethos of justification', we conclude that is not tenable for the Governor General to remain silent in the face of the parliamentary crisis of 2008.

The participation of judges in commissions of inquiry has been an important part of the public policy process in Canada and elsewhere. However, the use of judges for these and other extra-judicial functions is not wholly positive and the other side of the balance must be considered as well. This paper chronicles the dramatic rise of the use of judges by governments for such policy functions, arguing that it has resulted in a "judicialization of politics" of a different sort from the standard conception of that term. The current political culture of independence and accountability has made judicial independence a highly valued political commodity that is frequently in demand by government officials. This paper argues that what public policy makers are seeking is not simply the expertise of judges but also the political capital of judicial independence which has become an increasingly valued political good in Canadian society (and likely in others as well). This paper analyzes and evaluates this trend from the perspective of judicial independence and argues that the unreflective reliance on judges for various extra-judicial functions has the potential to undermine the bedrock principle of judicial independence if it is not better managed by the judiciary in concert with the executive. This paper analyzes two cautionary tales from the use of judicial independence for public policy purposes: the Gomery Inquiry and the controversy over the Chief Justice's involvement in the award of the Order of Canada to abortion activist Dr. Henry Morgentaler. Finally, this paper ends with the argument that taking judicial independence seriously necessitates that judges develop a framework for the consideration of extra-judicial functions and begin to exercise greater discretion in refusing to take on executive functions at times, lest the political currency of judicial independence become devalued over time.

Between 1999 and 2002, the Supreme Court of Canada transformed solicitor-client privilege from a common law right to a constitutional right of the highest order. Over those three years, the Canadian Court rendered five decisions in cases directly involving solicitor-client privilege. At least two more decisions are on the way and others have been staved off as a result of the ascendance of solicitor-client privilege to the upper level of the constitutional pantheon. In effect, in just three short years, solicitor-client privilege has become a "super-constitutional right". The idea of a "super-constitutional right" reflects the reality of the hierarchy of rights that exists under the Canadian Constitution. It also reflects the dynamic nature of the Canadian Constitution where the strength of various constitutional provisions ebb and flow over time. This paper explores the development of solicitor-client privilege into a "super-constitutional” right through an examination of the "Quintology" - the five solicitor-client cases at the Supreme Court of Canada between 1999 and 2002. It also analyzes the ramifications of the ascendance of solicitor-client privilege to "super-constitutional" status.

Equality is an elusive and often divisive concept. The Supreme Court of Canada has struggled with its interpretation, tacking back and forth between periods of unanimity and division it is interpretation of section 15, the equality clause under the Canadian Charter of Rights and Freedoms. The late 1980s was a period of unanimity in the Court's initial attempts to define the right to equality under section 15. However, within a number of years that unanimity broke down as the Court fractured into at least three different approaches to the interpretation of section 15. By 1999, the Court had returned to unanimity in the Law case, setting out a complicated multi-factor contextual analysis conceptually anchored in the idea of human dignity. However, the unanimity of Law proved to be short-lived and by 2002, Law was beginning to rupture.This paper argues for a revised approach to the interpretation of equality under section 15. The authors assert that the interpretation of equality has become overly contextualized under Canada's Charter resulting in two key negative effects. First, the emphasis on context has made interpreting equality more elusive than ever, losing the sort of certainty and predictability that are important elements of the rule of law. Second, Law's penchant for context has essentially eviscerated any role for section 1, the limitations clause under the Canadian Charter. We propose a simplified, less contextual approach to equality that would return the equality analysis to its origins under the Canadian Charter and shift the burden of demonstrating reasonableness of a limitation back to the government under section 1 of the Charter where it belongs.

This article addresses the issue of succession under the Canadian Constitution when the Prime Minister dies in office. No Canadian Prime Minister has died in office since the 19th century. This article addresses the complex interplay of various constitutional conventions and the roles of party leaders and the Governor General and ultimately concludes that the status quo is wanting. The author proposes a political solution to this constitutional problem.