New and Notable Titles

A selection of recent publications relating to parliamentary studies prepared with the assistance of the Library of Parliament (May 2022 – August 2022).

Bussey, Barry W. “Parliamentary privilege: An issue of conscience.” The Lawyer’s Daily 3p, June 1, 2022.

On May 13, Ontario Superior Court Justice John Fregeau issued his decision in Alford v. Canada (Attorney General) 2022 ONSC 2911, striking down s. 12 of the National Security and Intelligence Committee of Parliamentarians Act, S.C. 2017, c. 15, as being unconstitutional.

Johnston, Michael A. “Changing of the constitutional guard: why the Chief Justice of Canada should never also be the Governor General.” The Advocate 80 (3): 341-43, May 2022.

In Canada, separation of powers among the executive, legislative and judicial branches—an important requirement for a vibrant democracy—is more illusory than real…for six months, the Chief Justice of Canada granted royal assent to nascent laws, signed Orders in Council and acted as Commander-in-Chief of the Canadian Armed Forces. It is, no doubt, a position he never sought, and one his predecessors have also filled, but it is a position a justice ought never to have been given.

Kennedy, Gerard J. “Glover v. Progressive Conservative Party of Manitoba: Courts deferential in reviewing internal party affairs–even when they’re ‘contracts’.” Journal of Parliamentary and Political Law / Revue de droit parlementaire et politique 16(2): 521-, 2022.

…this case comment explores this unusual saga, and its implications for courts reviewing the results of internal party elections.

Macfarlane, Emmett. “The place of constitutional conventions in the constitutional architecture, and in the courts.” Canadian Journal of Political Science/Revue canadienne de science politique 55 (2): 322-41, June/juin 2022.

The Supreme Court’s recent invocation of the ‘constitutional architecture’ in the Senate Reform Reference has led a number of scholars to question the status of constitutional conventions in the legal, as opposed to political, constitution. Has the Court, without expressly saying so, transformed at least some conventions into constitutional law? This would be a serious rupture, not only from existing precedent on the justiciability of conventions but also from the traditional understanding of conventions as binding political rules. In light of this recent scholarly debate, an exploration of the profound consequences of entrenching conventions in the legal constitution is warranted, as it implicates the meaning of constitutional conventions, their creation, their relation to law, and their enforcement. Judicial entrenchment of conventions would be a dangerous violation of the separation of powers and would have negative consequences for the functioning of Canada’s system of government and for the future of constitutional change.

Murray, C.R.G. and Megan A. Armstrong. “A mobile phone in one hand and Erskine May in the other: the European Research Group’s parliamentary revolution.” Parliamentary Affairs 75 (3): 536-57, July 2022.

It has become axiomatic that backbench Members of Parliament at Westminster have limited capacity for independent action under the burdens of constituency business and whipped votes. Even the limited avenues available for such MPs to shine, such as select committees, are often illusory because parliamentarians have little time to prepare the materials or brief themselves on any but the highest profile witnesses. The political parties have benefitted from this state of affairs; docile MPs make for reliable votes. The rise of the European Research Group as a parliamentary force disrupts this narrative…this article analyses the methods by which the Group’s members magnified their influence over Brexit debates.

Schmitz, Cristin. “Judge strikes down national security gag law in parliamentary privilege case.” The Lawyer’s Daily 7p, May 26, 2022.

In a sleeper case said to have implications for the rule of law, judicial independence and other foundational principles of Canada’s Constitution, an Ontario judge has struck down a federal provision that purports to permanently gag from disclosing classified or other secret government information those MPs and senators appointed by the prime minister to be national security watchdogs.

Tardi, Gregory. “Moving toward gender balance in public life.” Journal of Parliamentary and Political Law / Revue de droit parlementaire et politique 16 (2): 349-, 2022.

…even if it could be demonstrated that proportional representation is more likely to favour the equality of men and women in terms of candidacy for elective office than first-past-the-post, litigation is not likely to be the best method of reform toward that goal. In fact, a more fundamental conclusion observers should be attracted to is whether, instead of reforming the general system of elections, it may not be more useful to construct a proportional representation-type of regime inside political parties.

White, Stuart. “How should a progressive parliament advance proportional representation?” The Political Quarterly 93 (2): 297-306, April-June 2022.

Many supporters of democratic reform in the UK propose both a change in the electoral system to proportional representation (PR) and a shift to a formal (codified and entrenched) constitution…this article discusses seven possible approaches by which a future progressive Parliament might advance PR.