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.”

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