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

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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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

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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Guelph Mercury

Parliament should review niqab ruling

The Supreme Court of Canada ruled in December that niqabs — full-face veils — could sometimes be worn by witnesses in court depending on the context.

In a case involving a Toronto woman identified only as “N.S.,” the court was asked to balance a niqab-wearing witness’s freedom of religion versus a defendant’s right to a fair trial in a sexual assault case.

In weighing these rights against each other, the court ultimately adopted a balanced approach. However, it split in a 4-2-1 decision (with Chief Justice Beverley McLachlin writing for the majority), adopting a “just and proportionate balance between freedom of religion on the one hand, and trial fairness on the other, based on the particular case before the court.”

Justices Louis LeBel and Morris Fish, meanwhile, argued that niqabs must never be worn in the courtroom, while Justice Rosalie Abella, in a dissenting opinion, stated that a witness should only have to remove a niqab if her face is directly relevant to the case.

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Guelph Mercury

There’s a need to review judicial appointment process

Troy Riddell and Samuel Mosonyi.

Justice Richard Wagner, the newest judge on the Supreme Court of Canada, caused a stir in December when he suggested that the process used by the federal government to appoint judges below the Supreme Court level — primarily to superior trial courts and courts of appeal in the provinces — be reformed.

Potential appointees, according to Wagner, should appear publicly before a parliamentary committee as he did before his recent appointment to the Supreme Court. Wagner, however, indicated that for practical reasons hearings for now could be limited to appeal courts only.

There was a mixed reaction to Wagner’s comments. One law professor, for example, argued that this would Americanize the system and lead to the appointment of judges who were too deferential to government. Meanwhile, the Globe and Mail editorial board endorsed the suggestion, arguing that since judges have more power to influence policy, they deserve greater public scrutiny. The Charter of Rights and Freedoms inarguably gives judges a more significant role in the area of policy-making relative to the legislatures.

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Guelph Mercury

A logical decision in anti-terrorism case

Convicted terrorist Momin Khawaja disagrees fundamentally with Canada’s anti-terrorism laws, believing they are an unfair infringement on his rights under the Charter of Rights and Freedoms to express himself freely.

The Supreme Court, in a unanimous, commonsensical decision, struck down this argument Dec. 17 and increased his sentence of 10½ years to a life sentence.

Khawaja was the first Canadian charged under the new anti-terrorism laws enacted after Sept. 11, 2001 for assisting a group of London Islamists who planned to build and detonate bombs made of fertilizer in shopping malls, nightclubs and other targets.

Khawaja sent a number of emails to those involved with the plot, provided funding to them, designed a detonator for the explosives which he planned to smuggle into the United Kingdom, and offered to provide training to the group. The emails he sent documented his ideological commitment to jihad. He also travelled to Pakistan to attend a terrorist arms training camp.

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