Over at www.slaw.ca , Connie Crosby reports on the Harper minority government’s controversial prorogation of Parliament last week (just in time for the holiday season so no one would notice) and the rise of a new grassroots movement, Canadians Against Proroguing Parliament, (CAPP) currently boasting over 30,000 Facebook members. CAPP relies on the historical precedent established by The Long Parliament, the eponymous English Parliament called by Charles I, on 3 November 1640, following the Bishops’ Wars, which lasted twenty years and was only dissolved after the English Civil War and the end of Interregnum in 1660. The Act against Dissolving the Long Parliament without its own Consent, reads:
198. Act against Dissolving the Long Parliament without its own Consent
(1641, May 11. 16 Charles I. c. 7. 5 S. R. 103. Gardiner, 158, 159.)
WHEREAS great sums of money must of necessity be speedily advanced and provided for the relief of His Majesty’s army and people in the northern parts of this realm, and for preventing the imminent danger it is in, and for supply of other His Majesty’s present and urgent occasions, which cannot be so timely effected as is requisite without credit for raising the said monies; which credit cannot be obtained until such obstacles be first removed as are occasioned by fears, jealousies and apprehensions of divers His Majesty’s loyal subjects, that this present Parliament may be adjourned, prorogued, or dissolved before justice shall be duly executed upon delinquents, public grievances redressed, a firm peace between the two nations of England and Scotland concluded, and before sufficient provision be made for the re-payment of the said monies so to be raised; all which the Commons in this present Parliament assembled, having duly considered, do therefore most humbly beseech your Majesty that it may be declared and enacted:
And be it declared and enacted by the King, our Sovereign Lord, with the assent of the Lords and Commons in this present Parliament assembled, and by the authority of the same, that this present Parliament now assembled shall not be dissolved unless it be by Act of Parliament to be passed for that purpose; nor shall be, at any time or times, during the continuance thereof prorogued or adjourned, unless it be by Act of Parliament to be likewise passed for that purpose; and that the House of Peers shall not at any time or times during this present Parliament be adjourned, unless it he by themselves or by their own order; and in like manner, that the House of Commons shall not, at any time or times, during this present Parliament, he adjourned, unless it be by themselves or by their own order; and that all and every thing or things whatsoever done or to be done for the adjournment, proroguing, or dissolving of this present Parliament, contrary to this Act, shall be utterly void and of none effect.
Since none of the opposition leaders seem interested in returning to elected work, it is up to Canadians to voice their disapproval of the government’s decision to prorogue government until after the 2010 Olympics in Vancouver. Many Canadians will have at least one bone to pick with the Conservative minority government’s decision to prorogue Parliament until March 3, 2010. There are thirty-three House Government Bills that have died as a result of prorogation. Why should we care? Aside from the fact that elected officials are paid through hard-working Canadians’ tax dollars, according to the Parliament of Canada website:
In order for government bills to be proceeded with in a new session, they must be reintroduced as new bills or they may be reinstated, if the House agrees to this.” [emphasis added]
My personal prorogation bête noire is the death knell of Bill C-35- An Act to deter terrorism, and to amend the State Immunity Act, which did not make it past First Reading.
Bill C-35 was an Act to deter terrorism, and to amend the State Immunity Act (the Justice for Victims of Terrorism Act or JVTA) which was introduced in the House of Commons on June 2nd 2009 by the Minister of Public Safety, the Honourable Peter Van Loan. The bill was to establish a cause of action that allowing victims of terrorism to sue individuals, organizations and terrorist entities for loss or damage suffered as a result of acts committed or omissions made that otherwise would be punishable under Part II.1 of the Criminal Code (which deals with terrorism offences). Essentially, Bill C-35 would have allowed victims of terrorism to sue state-sponsors of terrorism for losses or damage occurring inside or outside Canada on or after January 1, 1985.
If the loss or damage occurred outside Canada, then the “real and substantial” connection test established under Morguard Investments Ltd. v. De Savoye,  3 S.C.R. 416 (S.C.C.) and the factors articulated in either Muscutt v. Courcelles (2002), 213 D.L.R. (4th) 577 (Ont. C.A.), para. 41 or the Civil Jurisdiction and Proceedings Transfer Act (CJPTA) would have to be met (see the recent British Columbia Court of Appeal decision in Stanway v. Wyeth Pharmaceuticals Inc., 2009 BCCA 592 at
¶ 73 where Smith, J.A. eschews the Muscutt factors).
For the Canadian international litigation and arbitration bars, Bill C-35 held promise to expand the narrow exceptions to state immunity by amending the State Immunity Act to create a new—albeit admittedly equally narrow—exception, which would serve to remove state immunity only “when the state in question has been placed on a list established by Cabinet on the basis that there are reasonable grounds to believe that it has supported or currently supports terrorism.”
According to the official Legislative Summary:
“Bill C-35 is similar to a number of private members’ bills and senators’ public bills that have been introduced in Parliament since 2005.(4) The primary difference between the previous bills and Bill C-35 is that the other bills sought to include the cause of action in the Criminal Code, whereas Bill C-35 creates a free-standing civil cause of action.”
In The Tyrannicide Brief : The Story of the Man who sent Charles I to the Scaffold (Chatto & Windus, 2005) Geoffrey Robertson, QC, in recounting the infamous 1649 trial of England’s king Charles I and the heroic figure cast by John Cooke—the first lawyer to conceive of a charge of tyranny against a monarch— writes:
“British history is too often told – to children and on television – through the indulged lives of kings and queens, and never through the lives of lawyers. Yet men from the Inns of Court dominated that action–packed age, 1641–60, the crucible years in which they forged many of the ideals the world today most cherishes: the sovereignty of parliament; the independence of judges; freedom from arbitrary arrest and detention; the right to silence; comparative religious toleration – in short, freedom from tyranny.”
For those who may have forgotten, PM Harper also prorogued Parliament in 2007 : Sed quis custodiet ipsos custodes? – Who guards the guardians? (Juvenal)
According to today’s Toronto Star article by Susan Delacourt, Ottawa Bureau:
“Liberal MPs have decided to defy Prime Minister Stephen Harper’s shutdown of Parliament by showing up for work anyway in Ottawa the last week of January.
Liberals made the decision after a conference call Tuesday between leader Michael Ignatieff and his 76 MPs. Ignatieff reportedly told Liberals their mission was to keep the heat on Harper and keep political issues in the spotlight, even though the Prime Minister has prorogued Parliament until March 3, when the Olympics are over”