Legal experts decry retroactive Conservative law but say it can’t be stopped

Legal and parliamentary experts say there’s nothing to stop the Harper government from retroactively rewriting a law to absolve RCMP wrongdoing and stuffing the changes in an omnibus budget bill — even as police investigate.

OTTAWA — Legal and parliamentary experts say there’s nothing to stop the Harper government from retroactively rewriting a law to absolve RCMP wrongdoing and stuffing the changes in an omnibus budget bill — even as police investigate.

“There is no restraint on Parliament’s legislative powers other than legislative jurisdiction under the Constitution Act 1867 and the charter,” former House of Commons law clerk Rob Walsh said in an email Thursday.

In simpler terms, “there’s nothing wrong with it,” according to Ned Franks, a professor emeritus at Queen’s University and parliamentary procedure expert

“As I’ve often said about this government, it’s unorthodox, but you can get away with it,” Franks told The Canadian Press.

Bill C-59, currently on the fast track to be passed by Parliament in the next four weeks, includes amendments backdated to October 2011 that would retroactively remove all elements of the now-defunct long-gun registry from Canada’s access to information law.

The unprecedented move was prompted by a finding of wrongdoing against the RCMP by federal information commissioner Suzanne Legault and the Conservative get-out-of-jail-free legislative move is drawing howls of outrage from opposition MPs and academics.

“This is banana-republic behaviour,” NDP Leader Tom Mulcair said in an interview. “This is Canada, it’s not Panama. It’s absolutely reprehensible what they’re doing, the technique itself is reprehensible.”

Both the NDP and the Liberals have presented motions to have House of Commons committees call the information commissioner and others to explain what’s going on, although Conservative majorities on the ethics and public safety committees may stymie the effort.

“I can guarantee you that as the official Opposition, the NDP’s going to use every single tool at its disposal in this case,” Mulcair said.

The Ontario Provincial Police have confirmed they are investigating the RCMP’s alleged breach of the Access to Information Act after receiving the file from the Public Prosecution Service of Canada.

That investigation won’t deter the government from pushing through its latest, 167-page budget bill — including the non-budget-related gun registry changes.

“Royal assent was given to a law passed by Parliament years ago requiring the destruction of the data from the long-gun registry,” Stephanie Henderson, a spokesman for the Conservative House leader, said in an email.

She said the government is committed to passing the budget bill before Parliament’s summer recess begins by June 23 — and the fall election to follow.

The information commissioner, in a special report to Parliament last week, called the Conservative move a “perilous precedent” that could be used by future governments to retroactively rewrite laws on everything from spending scandals to electoral fraud.

The charter prohibits changing the law retroactively to make something illegal that was legal at the time.

“It doesn’t prohibit the reverse, however: retroactive decriminalization of acts that were criminal when committed,” said Walsh, the former Commons law clerk.

Nonetheless, Walsh noted that L.J.M. Cooray in “The Rule of Law” has written that “Retrospective 1/8retroactive 3/8 legislation destroys the certainty of law, is arbitrary and is vindictive, (being invariably directed against identifiable persons or groups). Such laws undermine many characteristics of the rule of law.”

Variations on the same sentiment came from every legal expert reached by The Canadian Press.

Michel Drapeau, a law professor at the University of Ottawa, former Canadian Forces colonel and expert in access-to-information law, said the majority government is likely unstoppable.

“Can they do it? The answer is yes. Is it legal? The answer is you can probably find a way, but it’s against every precedent, against any notion, against any principle that laws should not be retroactive.”

Just Posted

Alberta hiring more paramedics and buying new ambulances, none for Red Deer

Red Deer Mayor Tara Veer is not concerned the provincial government didn’t… Continue reading

‘My nightmare began again’: Close call as bus carrying Humboldt crash survivor rear-ended

CALGARY — A terrifying ordeal for Humboldt Broncos survivor Ryan Straschnitzki this… Continue reading

Halifax airport operations normalize after Boeing 747 runway overshoot

HALIFAX — The Halifax Stanfield International Airport has resumed normal operations a… Continue reading

Bentley family left without a home grateful for community support

Central Albertans are coming together to support a Bentley family left homeless… Continue reading

Red Deer RCMP ready for new mandatory alcohol screening law

Red Deer RCMP are ready to enforce a new law intended to… Continue reading

WATCH: Red Deer and District Kennel Club Dog Show at Westerner Park

The Red Deer and District Kennel Club is holding a dog show… Continue reading

Pence aide out of running to be Trump’s next chief of staff

WASHINGTON — President Donald Trump’s top pick to replace chief of staff… Continue reading

Swath of South faces wintry mess: Snow, sleet, freezing rain

CHARLOTTE, N.C. — A massive storm brought snow, sleet, and freezing rain… Continue reading

‘I killed my best friend’: Opioids’ fatal grip on mayor, pal

MOUNT CARBON, Pa. — Janel Firestone found her son — the 24-year-old,… Continue reading

Brothers, 20, face second-degree murder charge in death of teen: police

MISSISSAUGA, Ont. — Police west of Toronto say two brothers have been… Continue reading

A young mayor, his friend, and a fatal attraction to opioids

MOUNT CARBON, Pa. — Janel Firestone found her son — the 24-year-old,… Continue reading

GM fights to retain key tax credit amid plant closing plans

WASHINGTON — General Motors is fighting to retain a valuable tax credit… Continue reading

TTC union asks provincial government to step in on transition to Presto

TORONTO — The union representing transit workers in Canada’s most populous city… Continue reading

Small pot growers find roadblocks on path to microcultivation licences

Yan Boissonneault’s daughter was turning blue. Without warning, his baby had stopped… Continue reading

Most Read