Q:Many people are unhappy about globalization, the various free trade agreements and the actions of the World Trade Organization. Can legal action be taken to challenge the government from entering these agreements?
I’ve heard about a Winnipeg group that is challenging the tax department for letting a rich family take their trust funds out of the country without paying tax.
Do you know of any other actions by citizens to prevent governments from doing something which many citizens disagree with?
A:Challenges to government actions date from confederation in 1867. In the next three columns I will look at challenging the government, using examples where possible and illustrating some of the difficulties.
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First, in order to challenge a government action you must have a legal basis for doing so.
There are three legal grounds for challenging the government: that the government does not have the constitutional power to do what it is doing; that it is violating the Charter of Rights and Freedoms; or that it is violating its own legislation.
How does one go about challenging a government action or law?
First, one can sue for a declaration that the particular law is unconstitutional and beyond the government’s power or violates the Charter of Rights and Freedoms.
Alternatively, you can sue that a contravention of the law has happened by a specific government action or non-action, such as closing a school or failure to hold an environmental hearing.
Alternatively, if a person is charged for breaching a law, he can challenge its legality by arguing that the charge is based on an invalid law.
Readers may recall the case of Saskatchewan farmer Dave Bryan who was charged under the Customs Act for selling grain in the United States without the appropriate licence from the Canadian Wheat Board. Bryan and others opposed to the wheat board used this case to challenge the board’s monopoly. They were unsuccessful.
The need for a legal basis on which to challenge government was well illustrated by Conrad Black’s recent action against prime minister Jean Chrétien and the federal government for blocking his attempt to obtain a British knighthood.
The federal government has a longstanding policy that Canadians will not be knighted.
Black’s case was thrown out because the courts said the prime minister was acting within his executive prerogative and there was no legal ground for the challenge.
One basis for challenging the government is that it is acting beyond its power. Since 1867, our constitution has set out the powers each level of government can exercise.
The federal government is responsible for international relations and trade, interprovincial transportation, monetary policy, banking, Indian affairs and criminal law, to name but a few of the federal powers.
Hence, one could not challenge the federal government’s entering into an international global arrangement on the basis that it doesn’t have the power to enter such an agreement.
Provincial governments are assigned authority over education, health, highways, municipalities and property.
Readers may recall that the Alberta government, along with other provinces, recently challenged the federal government’s gun control laws.
The provinces argued that the provisions really dealt with property rights, which are a provincial responsibility.
The federal government argued that the provisions were a matter of criminal law.
On appeal, the Supreme Court, ruled that the gun control provisions dealt with criminal issues and were therefore within the authority of the federal government.
Provincial governments have control over municipalities and can define their powers.
Municipal bylaws are often challenged on the grounds that the provincial law creating municipalities does not allow the municipality the power to do what it has done.
For example, Saskatoon’s antismoking bylaw regulating smoking in restaurants was struck down. The court ruled that the municipal act in Saskatchewan did not give the city the power to pass such a bylaw.
Next week – The Charter of Rights and Freedoms.
