Friday, September 23, 2016

Law on hold

An interesting situation has surfaced in Canada, according to this article in The Ottawa Citizen. Parliament passed Bill C-15 -- amendments to the National Defence Act -- in 2013, and the measure promptly received Royal Assent. The problem is that effective dates remained to be determined by the cabinet, and at present some 60% of the law's provisions -- some of which apply to the military justice and grievance systems -- have still not been put into effect. To be sure, a new government has taken office and presumably needs time to come up to speed. That said, three years in limbo seems excessive. Query: will an action lie to compel putting provisions of the law into effect?

1 comment:

  1. Interesting question. Is executive power to issue regulations 'justiciable'? I guess someone could seek remedy by requesting intervention from the Federal Court or a Superior Court. However, in absence of any statutory deadline, a court may be reluctant to compel the executive to develop and issue regulations (which is the case here, see Bill C-15, S.C. 2013 c. 24, section 135). In the British form of government, courts are deferential to executive branch on how statutory provisions would be implemented. The Federal Regulatory Development Process is relatively long per se (see Moreover, as you pointed out, government has recently changed.

    Having said that, if a case raises a Charter legal right - such as the right at section 11(e) to benefit from a lesser punishment when the law changes between the commission of offence and the sentence - it may have more traction. For example, Bill C-15 provides for new punishments, notably intermittent detention/imprisonment sentences for period of no more than 14 days or absolute discharge. Someone facing potential incarceration might want to seek first court's intervention to get the regulations issued before facing sentence to have the new punishments added in the sentencing panoply. I must admit though that it would be a novel argument and action.


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