Publications

Bylaw Battles: Explaining Municipal-Provincial and Municipal-Federal Win-Rates

Samuel Mosonyi and Dennis Baker, “Bylaw Battles: Explaining Municipal-Provincial and Municipal-Federal Win-Rates,” Canadian Journal of Urban Research 25, no. 2 (2016): 11-22.

Abstract:

Municipal bylaws are routinely contested in court on the grounds that they are “ultra vires” or beyond the legal authority of the municipality. Many of these challenges allege that the municipal exercise of power infringes on federal or provincial powers as assigned by ss. 91 and 92 of the British North America Act, 1867. These conflicts have not been systematically studied and we address this lacuna by surveying the reported cases of municipal-federal and municipal-provincial conflicts in the LawSource database of Canadian judgments. Our preliminary finding—that challenges on federal grounds are much more likely to succeed than those on provincial grounds—requires an explanation. After factoring some disparities in the case sets (including a disproportionate number of zoning cases in the provincial context), we argue that the persistent difference in win-rates is due to a greater acceptance of municipal autonomy in the provincial context (despite their origins as “creatures of the province,” a number of provincial statutes have granted broad authority to many municipalities) whereas the federal conflicts run more clearly against constitutionally-defined interests. We conclude by considering this asymmetry and its significance for Canadian multi-level governance.
Full text here.
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Huffington Post Canada

U of C abortion display verdict not a victory for free speech

The University of Calgary recently reversed the guilty verdict of seven pro-life students who were found guilty of non-academic misconduct for setting up a display with graphic photos comparing abortion to the Holocaust and the Rwandan Genocide. The University of Calgary initially demanded that the students set up their display facing inwards so passersby would not see the images. After the students refused, the University charged and found the students guilty of misconduct for failing to follow the demands issued by Campus Security. The students appealed to the University’s Board of Governors, which found their appeal groundless and dismissed the case. The students appealed to the Alberta Court of Queen’s Bench, which ordered the University to rehear the appeal, after which the students were found not guilty.

The court decision has been heralded by some as being a victory for free speech on campus. The court ruling focused on the procedural aspect of the law rather than the substantive claim that the students’ right to free expression had been violated. The Court shied away from making any finding on the students’ right to erect the display: it directly stated that “it would be premature at this juncture” to rule on the right of students to erect the display on University property, or to force a change in University policy. Rather, the decision focused solely on the decision of the Board of Governors’ Committee denying the students their appeal hearing on the basis that it was groundless.

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Huffington Post Canada

The Senate Reference and taking steps forward

The Supreme Court just released its long-awaited Senate Reference decision. And the response was spectacularly rebuking.

Harper posed the following questions to the Court and the following responses were provided. I have significantly condensed the decision for easy access.

Harper: Can the federal government unilaterally impose term limits on Senators?

Supreme Court: No, they may not.

Imposing term limits is a change that engages the interest of provinces. It requires the general amending formula to be used (seven provinces with at least 50 per cent of the population), also known as the 7/50 procedure. Imposing fixed terms is not specifically written in the Constitution, imposing term limits would alter the fundamental nature and role of the Senate.

Harper: Can the federal government unilaterally develop legislation that allows citizens to be consulted for potential Senate nominees? Can the federal government establish a framework for provinces and territories to enact legislation to consult their citizens for Senate nominees?

Supreme Court: No, they may not.

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Huffington Post Canada

The Conservatives’ clever ploy with the Truth in Sentencing Act

The Supreme Court’s recent ruling on the application of the Truth in Sentencing Actwas depicted in various media outlets as being part of a trend of recent decisions rebuffing the Conservative government’s justice agenda. While this could describe a number of recent decisions, the current ruling is more nuanced.

According to the Canadian Press:

They also represent the latest in a series of court rebukes of the Conservative government’s law-and-order agenda.

Sean Fine in the Globe and Mail likewise stated:

The Conservative government’s attempt to detain thousands of prisoners for longer periods has been blocked, in the newest in a series of crushing defeats at the Supreme Court of Canada.

As the Supreme Court decision notes, enhanced credit is often provided for accused who have been remanded in jail, and historically, there were no restrictions on the reasons for giving credit or the rate at which it was granted. A practice developed over time to grant credit at a 2:1 rate. The new Truth in Sentencing Act caps pre-sentence credit at 1.5:1, but does not discuss which circumstances justify enhanced credit.

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The Prince Arthur Herald

An interview with Justice Minister Peter MacKay

In light of the House of Commons reconvening on January 27, The Prince Arthur Herald columnist Samuel Mosonyi spoke with Justice Minister Peter MacKay to gauge the government’s position and rationale on a number of initiatives currently being pursued in the Justice portfolio. These include the Supreme Court’s Bedford decision on prostitution, a cyberbullying awareness initiative, mandatory victim surcharges, the proposed Not Criminally Responsible Reform Act, and more. Here is the full interview.

 

PROSTITUTION AND THE BEDFORD DECISION

You tweeted recently that you “disagree with Justin Trudeau’s focus on legalizing prostitution, which will harm and put vulnerable Canadians at risk.” Has Justin Trudeau come out in support of legalization?

Of marijuana, yes. Of prostitution, not yet, although his party, and particularly the youth wing, appears to be very publicly musing, if not advocating, that position. So while we’ve been focused on making our justice system more accountable, Mr. Trudeau and certainly his party seem to be focusing on legalizing marijuana and prostitution. And frankly I tweeted that because I fundamentally disagree, and I think in both instances it would be detrimental to our country’s best interest. It would certainly further endanger vulnerable segments of our population. And I don’t believe that any government of any political stripe should be facilitating the increase of access to drugs or to the sex trade. I don’t think it’s a good thing for our country, certainly not in the best interests of young people, or our citizens. I’m kind of taken aback, frankly, when I heard that yesterday.

After the Bedford decision you released a statement stating that the government is exploring all options to ensure the criminal law continues to address the significant harms to communities, prostitutes, and vulnerable persons. Would it be an option to allow communities themselves to regulate prostitution through zoning and licensing bylaws, instead of treating it as a criminal law matter?

I don’t believe so. I say that because it really is in the federal area of criminal legislation in my view to address this broadly across the country. We’re going to be receiving a lot of input and there will be extensive consultation on this issue. But it’s going to take a much more concerted effort than what any local government or jurisdiction could do. So for that reason I think you will find that there is a necessity within that twelve month period that the Supreme Court has granted that we will bring forward legislation, and amendments that will address what we think are significant harms that flow from prostitution.

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Guelph Mercury

Bus ad protesters are taking wrong path as opponents

There is an issue irking online petitioners regarding the presence of anti-abortion advertisements on Guelph Transit buses.

A petition on change.org with more than 2,000 signatures is calling on Guelph Transit to remove them.

A quick search of the issue reveals that citizens have posed complaints to their councillors on this issue before.

The response on the blogs of Ward 2 and Ward 4 notes that: “The City of Guelph does not endorse any businesses or associations who advertise on transit buses, shelters or benches … All advertisements that could be in violation of Guelph Transit’s advertising policy are reviewed … and are approved or denied based on the policy. The current Guelph and Area Right to Life advertisement does not contravene our advertising policy and although the advertisement may be considered controversial in nature, refusing to post the advertisement could be seen as limiting freedom of expression under the Charter of Rights and Freedoms.”

This response is correct, but it should read “refusing to post the advertisement would be seen as limiting freedom of expression under the charter.”

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Guelph Mercury

Municipalities fighting good fight on cell tower locations

The rash of new cellphone towers being built across Canada has led concerned citizens and several municipalities — including Guelph — to speak out against such developments, on the grounds that they devalue property and pose potential safety risks.

The health impacts of the towers have not been widely analyzed in Canada. However, the European Parliament passed a resolution in 2009 that notes in its preamble that wireless technology emits electromagnetic fields “that may have adverse effects on human health.”

Provinces exercise exclusive power over “property and civil rights” under s. 92 (13) of the Constitution Act, 1867, which they can delegate to the municipalities, which have no constitutional status. Since cell towers are a sort of property, it would seemingly appear that provinces have jurisdiction over them. However, telecommunications has been interpreted exclusively as a federal power despite not being enumerated in the Constitution.

In the Supreme Court’s Radio Reference of 1931, a majority of the justices ruled that telecommunications is an exclusive federal power. Justice Robert Smith, for instance, decided that legislation regarding radio technologies does not deal directly with property or civil rights in the province. Since it does not fall under any enumerated ground, most of the justices found that such regulations fall under the federal government’s power, since all powers not specifically enumerated are granted to the federal government under the “residual powers” doctrine. However, two out of the five justices found that Parliament’s jurisdiction was not exclusive, since the “receiving apparatus” is a piece of equipment, or property, that must be erected within the province.

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