Court cases in limbo as new government prepares to take office

Canada’s next justice minister will have quite a pile of paperwork waiting on his or her desk after the new Liberal government formally takes power on Nov. 4.

The Conservative government was not known for backing down from proposed policies and new legislation, and numerous class-action lawsuits, constitutional challenges and other legal proceedings have been launched from coast-to-coast in recent years as a result.

According to Carissima Mathen, an associate professor of law at the University of Ottawa, Justin Trudeau’s Liberals are inheriting a particularly cumbersome judicial legacy, and they will need to make some quick decisions.

“I think that the sheer scale of both pending court challenges, appeals and laws that have been criticized as unconstitutional is unprecedented,” Mathen said.

“That’s what makes this transition different.”

In some instances, like the legal battle involving the wearing of the niqab while taking the oath of citizenship, the onus will be on Ottawa to pull the plug and end the proceedings. But there may also be instances when it makes more sense to let a case play out, Mathen said, allowing the courts to set legal precedents that would apply across the country.

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A spokesperson for the Liberal Party would not confirm which cases might be dropped or re-examined, referring Global News to the party’s platform for guidance on the new government’s views surrounding various issues.

Here are just a few court cases that could be affected by the change in government.

The Niqab

Unhappy with a lower court’s decision to uphold Zunera Ishaq’s right to wear the niqab while swearing the oath of citizenship, the Conservative government expressed its intention in September to appeal to the Supreme Court of Canada. On Sept. 21, it filed the first of a series of documents with the country’s highest court. Since then, however, there has been nothing.

If the new Liberal government chooses not to follow up by filing additional materials before mid-November, Ishaq’s lawyers can ask the court to dismiss the government’s application, and it will be over.

Prime minister-designate Trudeau has made it clear he does not support a ban on the niqab during citizenship ceremonies.

Veterans’ benefits 

Groups and individuals who have launched constitutional challenges or lawsuits against the government will also need to decide if it makes sense to push forward. A good example is the class-action lawsuit launched in 2012 by a group of veterans unhappy with the federal government’s benefits program. It may be dropped depending on the Trudeau government’s actions on the file in the coming months, said the veterans’ lawyer, Donald Sorochan.

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“The Liberal platform, on its face, appears to be the most satisfactory in solving the problems,” he said.

‘Second-class citizens’ 

Similarly, Misbahuddin Ahmed, who has been convicted of two terrorism-related offences, is challenging the revocation of his citizenship under Bill C-24. Trudeau has pledged to repeal the parts of the law that allow for revocation of citizenship, arguing that it creates different classes of Canadians. If that promise is fulfilled, Ahmed’s case will quickly become unnecessary.

Too late to slam on the brakes?

There are certain cases that are so close to completion that it would be difficult for anyone to back out, said Mathen. On Nov. 4, likely around the same time  that the new prime minister and cabinet are sworn in, the Supreme Court will be hearing an appeal to the Truth and Sentencing Act, a major plank in the Conservatives’ tough-on-crime agenda.

“Assuming that that case is not withdrawn or adjourned, you will have federal lawyers arguing a case for the previous government because of how the timing works,” Mathen said. “It’s an interesting and somewhat ironic turn of events.”

Other cases that could be affected:

  • The Supreme Court decision surrounding doctor-assisted suicide last winter will result in the practice no longer being illegal in Canada come February. The Liberals are reportedly considering asking for an extension to the deadline to allow laws and regulations to be drafted to fill the legislative vacuum.
  • A constitutional challenge launched against anti-terror law Bill C-51 could be dropped if the Liberals fulfill their promise to significantly amend the legislation when Parliament resumes.
  • The court battle launched by refugee-advocacy groups against the Conservative government after it made drastic cuts to the Interim Federal Health program in 2012 may also be thrown out if the Liberals reverse those cuts.

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