quinta-feira, 14 de agosto de 2014

Teoria do dialogo no Canadá

Teoria do dialogo no Canadá


 Constitutional Dialogue v2.0? Contentious Government Responses to the
 Supreme Court of Canada
> Jonathon Penney, Dalhousie University
> Constitutional "dialogue" used to be the fashion in Canadian legal  circles.
> From the late 1990s to mid-to-late 2000s, legal scholars engaged in  contentious debates on the topic and the Supreme Court of Canada itself  invoked the metaphor in a series of judgments to describe, and  theorize,  the relationship between the Court and legislatures in constitutional  adjudication. The concept has since fallen out of favour in Court's > jurisprudence, though academics still analyze and debate it. But in light > of some recent Supreme Court decisions, and the Government's responses,  dialogue theory may be set for a revival, though potentially in an even  more contentious and confrontational form.
> Setting the Stage for New Dialogue
> Canadian constitutionalism has had an eventful winter and spring, to say > the least. In a wide range of complex and contentious cases, the Supreme > Court issued a number of landmark rulings, often with the Government on > the  losing end. In December, the Supreme Court struck down Canada's  anti-prostitution laws in the Bedford case, a unanimous ruling, leaving the Government to draft new laws that would better respect the rights and interests of sex workers. In March, it issued its advisory opinion  concerning the Prime Minister's appointment of the Honourable Mr.  Justice  Marc Nadon to the Supreme Court of Canada, finding the appointment was  void  and, at least in part, constitutionalizing the judicial appointments  process itself. Another landmark advisory opinion was issued soon after  in  April, this time with Court dashing the Government's hope to  unilaterally
> reform the Senate. The Court ruled, among other things, that Senate  reforms  like using elections to appoint Senators was subject to the 7/50 rule, that is, it required approval of the House of Commons, the Senate, and seven  provinces representing 50 per cent of the population. Also in April, the
> Court struck down parts of the Conservative Government's "tough on  crime"  legislative agenda, finding offenders could receive extra credit for time  served before sentencing. The Supreme Court was not done, however. In its  Spencer decision handed down in June, the Court found warrantless police  requests to Internet Service Providers (ISPs) for user data violated the  Canadian Charter of Rights and Freedoms.
> These decisions have been viewed as "major" losses for the  Government,  setting the stage for a number of important federal responses-- via both  legislative and executive action. Today, some of those responses have  taken  shape, with the government seemingly taking a hard line, foreshadowing
> some  further contentious constitutional dialogue in the months and years  ahead.

> Rejecting Spencer's Privacy Principles 
 The first notable federal response to these cases involves the Spencer  decision which, as noted, found warrantless requests to ISPs to disclose  subscriber information a section 8 Charter. This was an important privacy  decision, that brought some clarity to the legally obscure and  increasingly
> complex relationship between governments, private sector  telecommunications  providers, and citizen/subscriber rights. To be clear, Spencer was a  nuanced decision, offering flexibility for law enforcement to carry out  appropriate investigations and, in fact, the seriousness of the offences
> in  Spencer-- possessing and making available child pornography-- led the Court to find the evidence unconstitutionally obtained by police admissible.Even so, Spencer still stands as a seminal ruling recognizing the threats to  privacy posed by discrete data sets and unregulated sharing with important  implications for government and private sector data sharing.
> Yet, the Government nevertheless appears ready to forge ahead with Bill  S-4, the Digital Privacy Act, a piece of legislation with some  questionable  provisions, especially in light of Spencer. Bill S-4, if passed as is,  would add new provisions to Canada's private sector privacy statute (the Personal Information Protection and Electronic Documents Act or PIPEDA)  arguably making it permissible for Canadian companies to disclose  subscriber information, without a warrant or court order, not only to  police, but also other companies investigating mere breach of contract.
> This would seem to clearly run counter to the spirit of the Court's  decision in Spencer. To be clear, in dialogue theory Parliament only  "speaks" when it finally legislates; and there is still time for Bill
> S-4  to be improved and these problematic provisions dropped. But,as Michael  Geist has argued, the Government has so far indicated it "rejects"  Spencer's privacy principles, and instead aims to expand warrantless  disclosure of personal information and data. If right, and it seems so,  that is a confrontational response from the Canadian Government.
> A Narrow View of Bedford
> A second noteworthy Government response to a loss at the Supreme Court  involves the Court's Bedford decision. In early June, after several  months,  the Minister of Justice introduced the Government's new  anti-prostitution  laws Bill C-36, formulated in response to the Supreme Court's ruling in  December striking down existing prostitution laws. Essentially, the Court  ruled in Bedford that previous criminal laws on prostitution infringed the  section 7 Charter rights of prostitutes by depriving them of "security  of  the person in a manner that is not in accordance with the principles of
> fundamental justice". The operation and impact of the laws had a  significantly negative effect on the s. 7 rights of sex workers, a harm  the  Court found that was "grossly disproportionate" to the Government's  modest  objective to "prevent public nuisance". Yet, despite the Court's  obvious  concerns for the rights and interests of sex workers-- and ensuring laws  do  not operate to endanger them-- Bill C-36 re-criminalizes sex workers in  ways  that, as Emmett MacFarlane has observed, makes it difficult for them to  safely carry on their trade, raising some of the same concerns that led
> the  Supreme Court to invalidate existing anti-prostitution laws in Bedford. If  enacted as is, it will be challenged and MacFarlane doubts the Government  "will like the outcome". Michael Plaxton has recently argued that we  should  not pre-judge the constitutionality of Bill C-36 but at the same time
> admits that it is "reasonable" to question its constitutionality in  light of Bedford. At best, the Government has taken a narrow view on the scope  of  Bedford, leaving itself a difficult road ahead to defend the legislation;  at worst, it has ignored key principles in Bedford in order to take a hard
> line on prostitution.
> Questioning Nadon and the Chief Justice
> Even more controversial was the "dialogue" between the Federal  Government  and the Supreme Court in the weeks after the Court's advisory opinion in  Nadon. The Court held that section 6 of the Supreme Court Act required  that  any Quebec judicial appointments to the Court must be chosen from the  Quebec Court of Appeal or Superior Court or among current members of the  Quebec bar. Despite initially indicating that the Government would  "respect" the Court's decision, government sources cited in media  stories  alleged Chief Justice of the Supreme Court Beverly McLachlin had
> "lobbied"  against Justice Marc Nadon, leading to an highly unusual public exchange  between the Chief Justice and the Government. The exchange included a  statement issued by the Prime Minister insinuating the Chief Justice had  acted inappropriately, though these suggestions were later debunked.
> Still,  the statement, which implicitly questioned the Chief Justice's personal  integrity, was unprecedented in Canadian legal history, leading the  Canadian Bar Association and international experts to call on the  Government to apologize and withdraw the allegations. With a legal
> challenge now filed against the Government's subsequent appointment of  Justice Robert Mainville from the Federal Court of Appeal to the Quebec  Court of Appeal-- which could be interpreted as the Government attempting  to  manoeuvre around the Nadon decision-- another confrontation between the  Supreme Court and Government on the issue seems inevitable.
> A Contentious New "Dialogue"?
> When constitutional dialogue first emerged in Canadian legal scholarship,  the theory described a cooperative endeavour between two co-equal  branches;  in practice, however, it sometimes led to tense confrontations between  Parliament and the Courts, as with the Mills and Sauvé cases, wherein
> either the Government (Mills) or the Supreme Court (Sauvé) staked a  confrontational constitutional position more authoritative than dialogic.
> Yet, even then, a level of deference and decorum as between the two  branches was maintained, and constitutional crisis avoided, despite heated  disagreements about important questions.
> The Government's "replies" to this recent series of important, at  times landmark, Supreme Court of Canada rulings foreshadow a potentially new,  even more contentious form of constitutional dialogue in the months and  years ahead as challenges to these federal responses make their way  through  the courts. Whether this will ultimately revive the dialogic metaphor in  constitutional jurisprudence is an interesting question, but less  important  than the broader concern that any constitutional dialogue, however heated  or contentious, leads to settlement and stability rather than  confrontation  and crisis.
> Suggested Citation: Jonathon Penney, Constitutional Dialogue v2.0?
> Contentious Government Responses to the Supreme Court of Canada, Intl J.  Const. L. Blog, Aug. 13, 2014, available at:  http://www.iconnectblog.com/2014/08/constitutional-dialogue-v2-0-contentious-government-responses-to-the-supreme-court-of-canada

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