Law

Prorogation: Democracy in Action or Democracy Challenged? by Larry O'Malley

Prorogation:
Defining the Unusual Term:
The term “prorogation” refers to the ending of a session of Parliament. This is done by the Governor General (the unelected Head of State in Canada) who receives the advice to prorogue Parliament from the Prime Minister (the elected Head of the Government).
Parliament (both the House of Commons and the Senate) remains prorogued (in simpler terms, it means Parliament is in “recess”) until a new session of Parliament is opened. It’s important to note that prorogation does not result in an election. The Prime Minister and the government ministers remain in power, as do all elected members of the House of Commons. The new session will be opened by the Governor General when she reads the new Speech from The Throne (an outline of the government’s new legislative action plan).

The Effects of Prorogation:
The main effect of prorogation is to end the business of that Parliamentary session. All bills (proposed legislation) that have not received Royal Assent “die” (that is, they no longer exist) and, if the government wants them passed, they must be re-introduced in the next session. Private member bills are automatically reinstated in the new session. Additionally, all Committees cease to exist, and so no Committees can “sit” (hold hearings, interview witnesses) after prorogation. The business of the Committees can be reinstated in the new session by the passing of a motion in the House of Commons.

Compare to Dissolution:
The dissolution of Parliament means that an election must be held, and all seats in the House of Commons are up for election. All legislation that has not received Royal Assent dies, all Committee work ceases, and the government is no longer required to answer written questions, respond to petitions or requests for papers by the House of Commons. The duties of the House of Commons only resume after the general election and the forming of the next government.

Cartoon Analysis:

Select a cartoon dealing with prorogation for students to analyze. There are a number of cartoons available on the Web related to this topic: (1) (2)

Cartoon Analysis Questions:

1. What issue is the cartoon dealing with?
2. Who/what are the characters in the cartoon representing?
3. What symbols are used in the cartoon? What is the purpose for using these symbols?
4. Does the cartoon represent a positive or negative view of the issue?

Suggested Activities:

1. Have students write a letter to the editor either supporting the Prime Minister’s ability to prorogue Parliament or calling for changes in this power. See the Pearson e-Guide Interactive Teacher Resource BLM for instructions on writing a letter to the editor. The list of additional resources given below can be used as background information for students to form an opinion on the issue.
2. Have students create an editorial cartoon on prorogation. Refer to the Pearson e-Guide Interactive Teacher Resource GAM-13 for instructions on creating cartoons.
3. News Review Presentation. Have students work in groups of three. Each group is to find at least four news articles dealing with the issue of prorogation. The group is to summarize the main points of each article using a “PMI” (plus, minus, interesting) chart. As a class, complete a group sharing of the PMI charts (have each group present one idea, and then move to the next group). At the completion of the exercise, have students post the PMI charts on the bulletin boards in the classroom.
4. Comparing Issues: Have students examine the prorogation issue and see how it is similar to and different from the constitutional issue involved in the King-Byng Affair (see Law in Action blog “Certainty in Law: Not in the Constitution”).

Text References:
Law in Action, 2nd Edition, chapter 3, “Government and Statute Law,” pages 75–89.

Additional Resources:

• Information on Prorogation: “Prorogation of Parliament” (Government of Canada website) (link)
  
• “Dissolution of Parliament” (Government of Canada website) (link)
  
• News Articles on 2010 Prorogation:
  “Faced with criticism over prorogation of Parl., Tories cancel March, April break,” The Canadian Press, from Yahoo News, February 3, 2010 (link)
  
• Jim Travers, “PM wakes a slumbering electorate,” Toronto Star, January 28, 2010 (link)
• Lee Whittington, “Liberals join push to rein in PM’s power to prorogue,” Toronto Star, January 26, 2010 (link)
• “Canadians see prorogation as extended vacation: Poll,” CTV.ca on-line (link)
  
• Brian McInnis, “Islanders rally to protest prorogation of Parliament,” The Guardian (Charlottetown), January 25, 2010 (link)
• Robert Silver, “Harper says it best when he says nothing at all,” Globe and Mail, February 4, 2010 (link)
• Norman Spector, “An expert, ex-Liberal MP speaks out on prorogation,” Globe and Mail, February 3, 2010 (link)

It’s 2009, right? by Larry O'Malley

“The price of freedom is eternal vigilance.”
Thomas Jefferson

Thomas Jefferson’s famous quote is a reminder to all of us that we must carefully guard our freedoms so that they are not lost. 

Canada is seen by the world as a country of freedoms.  In Ontario, we have a long history of progressive legislation that protects individuals from unfair treatment.  The Ontario Human Rights Commissions was founded in 1961 and the Ontario Human Rights Code was enacted in 1962 in order to protect people against discrimination in employment, goods, services and facilities, accommodation, and membership in vocational associations and trade unions. And yet, almost 50 years later, the passage of legislation has not resulted in the elimination of all forms of discrimination in society.

A Case of Discrimination

A recent case heard by an Ontario Human Rights Tribunal makes us want to ask: “It’s 2009, right?”

Jessica Maciel was a 20-year-old single woman who found out that she was pregnant.  That was likely dramatic enough but then she was fired from her new job when her employer became aware that she was pregnant.

In August 2008, Jessica was the successful applicant and was hired as a receptionist in a salon in Mississauga.  She was four months pregnant when she reported for work but she had not mentioned her pregnancy during the job interview.  Under the Ontario Human Rights Code, there is no requirement that an individual tell a prospective employer that they are pregnant. 

On her first day at work, Jessica told her boss that she was pregnant.  Very shortly after, Jessica was asked to leave work. She was fired.  The following day her boss phoned her to say that she lost the job because the salon needed someone who could work full-time, not the part-time hours that Jessica wanted.  But Jessica disputes this fact; as a single person, about to become a mom, she needed full-time employment.

The Human Rights Tribunal agreed with Jessica. She had been subject to discrimination, losing her job because she was pregnant. As a result, she was awarded $35000 in damages.  Jessica has since found another job and says that the decision is a victory for all women in similar situations and hopes that it gives them the courage to fight for their rights.

It is 2009, right? Well, yes it is, but legislation in and of itself does not guarantee that there’s no discrimination.  Everyone, you and I included needs to stand up for our rights to make sure that they aren’t taken away.  Surprisingly, Kate Sellar, the lawyer from The Ontario Human Rights Support Centre who represented Jessica said that the centre receives about 40 calls a week from women facing similar discrimination.  Forty calls a week --- the price of freedom is eternal vigilance.

Suggested Activities:

1. Place the quote by Thomas Jefferson on the board.  Use a “think, pair, share” strategy to have the class examine what they think this quote means and why they think it is necessary for all of us to remain vigilant.
2. Using the flow chart on page 139 of Law in Action, 2nd Edition, have the students outline how this case would go through the Human Rights Commission Compliant Process.
3. Have the students examine the Ontario Human Rights Commission information on “What are my rights in the workplace” (see link below).  Working in groups of three, assign the students one of the prohibited grounds of discrimination.  The group is then to create a short skit to present to the class which demonstrates the area of discrimination.  After the skits are presented, have the class return to the discussion on why vigilance is important and what we can do to make sure the discrimination in employment is guarded against.
4. Have students work in pairs to complete a pamphlet “Your Rights in the Workplace.”  Use assessment master GAM-9 from the Law in Action 2nd Edition Interactive eGuide to evaluate the completed work.

Text References:
Law in Action, 2nd Edition, chapter 5, Pg. 136 –142, 144 – 151

Further Research:

Stephen Smysnuik, “Woman Fired Over Pregnancy wins $35000 in rights case,” Toronto Star, October 30, 2009 Available online

The Ontario Human Rights Commission: Main Page Link: http://www.ohrc.on.ca/en; Employment Line:  http://www.ohrc.on.ca/en/issues/employment

The Canadian Human Rights Commission:
http://www.chrc-ccdp.ca/default-en.asp

Law Blogs: Links to blogs on various legal topics; http://www.lawblogs.ca/; Blog on Human Rights in the Workplace
http://donnasealeconsulting.typepad.com/

Greetings from Patti Henderson

Please let me introduce myself. I’m Patti Henderson, aka “the new Aerin Guy.” Our colleague and friend has moved on to a new position at the Wellesley Institute here in Toronto. We at Pearson miss Aerin already, and owe her a debt of gratitude for launching the Pearson School Division into the blogosphere. I am happily tasked with the responsibility of continuing the Law in Action blog tradition and I ask your patience as this is my first official blog entry.

Let me tell you a little bit about myself. I am a seasoned publishing person, having been in this exciting and challenging industry for close to 15 years. I’m also a former high school History teacher and a poster child for the saying “those who cannot teach… go into publishing.” For me, publishing is the next best way to have a positive impact in the classroom.

I am a photography enthusiast - check this one out, of the beautiful Rosseau Falls in Muskoka:

I'm also a sports nut, a novice chess player (I have recently beat the computer 7 times…in level 1…) and am well-known and loved here at Pearson for incredibly bad puns.

In the upcoming posts I hope to provide you with more information on the official launch of Law in Action, 2nd edition, but more importantly, this blog is intended to provide you with the support you need as a teacher of Law. As the infamous Jerry Maguire saying goes, “Help me help you.”

Please let us know how we can offer you value through this blog… comments welcome!

Appeal Denied in Autism Case by Larry O'Malley

The Supreme Court of Canada will not hear an appeal dealing with a class action suit brought by the families of six autistic children in Ontario. The suit, started in 2004, was launched against the Ontario government and seven school boards. The parents were frustrated with the lack of treatment for children with autism in the publicly-funded school system. School boards do offer certain programs but there can be long waiting lists for students to access these programs. In some cases, parents have to choose between paying for privately-funded treatment programs and the publicly-funded school system.

The initial lawsuit claimed that the defendants (the Ontario Government and seven school boards) had deliberately misused their offices and that they were negligent. In addition, the claim indicated that the children’s rights were violated—the lawsuit claimed violation of rights to the security of the person, equality rights, and discrimination on the basis of age.

In 2007, Justice Maurice Cullity of the Ontario Superior Court struck out the portion of the lawsuit claiming deliberate misuse of office, negligence, and violation of security of the person. The families received a further setback when, in May 2008, the Ontario Court of Appeal struck the claim of discrimination on the basis of age. The court has allowed the group to amend their claim so they may be able to return to court again.

Lack of Clarity

The Supreme Court of Canada does not always provide reasons for not hearing an appeal. However, the lower court rulings seem to indicate that the lack of clarity in the claim hindered its chance of success in court. The Ontario Court of Appeal noted that:

The task faced by the motion judge was further complicated by the content and structure of the appellants’ statement of claim. In part, the motion judge attributed the difficulties with the pleading to its layered amendments… the motion judge accurately observed at para. 7 that the amended amended statement of claim amounted to an “attempt to simultaneously bombard all targets from all angles with every available piece of ammunition.” This was, and remains, a major problem affecting any determination of the viability of the viability of the appellants’ claims (see text of the Court's decision).

Suggested Activities

1. Have students examine the Ontario human rights code's “prohibited grounds of discrimination.” Working in groups of three, ask them to identify two possible grounds of discrimination which students with autism might use in a human rights claim against the Ministry of Education or the local school board if they are denied services that they feel would be helpful to their learning. Have students explain the reasoning for their choices.
   
   
2. An alternate activity would be for students to read the actual case from the Ontario Court of Appeal (Sagharian v. Ontario (Education), 2008 ONCA 411, released May 23, 2008). Working in groups of three, the students could complete a graphic organizer of the case, containing:
   • facts
   • statement of claim
   • judicial ruling
   • reasoning

They could also complete a glossary of terms for the case, defining and explaining any words or terms that they are not familiar with. After the groups have completed their summaries, have the students do a “gallery walk” to see how other groups have summarized the case.

Further Research:

Tracey Tyler, “Parents vow to keep up autism fight,” Toronto Star (December 5, 2008)

Tracey Tyler, “Supreme Court refuses autistic parents’ appeal,” Toronto Star (December 4, 2008)

Certainty in Law - not in the Constitution, by Larry O'Malley

The political “crisis” that has been engulfing Ottawa in recent weeks provides us with the perfect opportunity for a practical lesson in constitutional law. Let’s start with a simple plan. Put these election results on the board:

• Party A - 101 seats
• Party B - 116 seats
• Party C - 24 seats
• Others - 4 seats

Ask the class: Who forms the government?

The obvious answer is Party B because they “won” the election (meaning that this party won more seats). But as Stephen Harper, and most Canadians are realizing, winning the most seats does not necessarily mean forming the government. 

In fact, these numbers were the results of the 1925 federal general election in which:

• The Liberals - 101 seats
• The Conservatives - 116 seats
• The Progressives - 24 seats
• Labour - 2 seats
• Independents - 2 seats

And who actually formed the government?

Despite our belief that the Conservatives would have “won”, it was actually William Lyon Mackenzie King and the Liberals who formed the government after the October 29, 1925 election. King, you see, had been the prime minister and told the Governor General that he could maintain the confidence of the House of Commons and did so for almost 8 months. And then in June, King asked the Governor General, Lord Vimy Byng, to dissolve Parliament and call an election. But Byng refused. King’s government was then defeated in a motion of confidence. Finally, Byng refused dissolution and instead called on Arthur Meighen's Conservatives to form the government.

The King-Byng Affair

Commonly called the King-Byng affair, these events of 1926, as well as the current situation with Stephen Harper and Michaëlle Jean, remind us of that the fundamental law of the country, our constitution, is not always as clear or certain as we may wish. Why is that? Well, our system of government comes from a phrase stating we’re to have a government similar in principle to that of the United Kingdom. Those words, written in the original British North America Act, give us our Prime Minister, the Cabinet and the very essence of our government. And yet, nowhere do the words "prime minister" or "cabinet" appear in our constitution.

Constitutionally Speaking

According to the wording of the Constitution Act, the Governor General appears to have all the power.  So too, most of the rules by which our Parliamentary system run are by “convention”, i.e., customs built through the years; not written rules. Seems contradictory to the certainty that we like to impart on our legal system!

How our system truly works

And so the recent events are really a reminder — and an excellent lesson plan as current events so often are — of how our system of government  truly works. In order to govern, the cabinet, including the prime minister (literally “First Minister”) must be able to maintain the confidence of the House of Commons. That’s the simple rule of how the government “runs” the country. The government must be able to win votes that are considered issues of “confidence” (e.g., the federal budget) in order to maintain power. 

As a matter of convention

On one hand, this really doesn’t have anything to do with elections directly since the electorate doesn't directly elect the prime minister and cabinet.  On the other hand, the electorate does determine who forms the government because, by convention (not by law), the party with the greatest number of seats is invited by the Governor General to form the government. Easy when one party wins a majority of seats in the general election. No so much when it’s a minority. 

As we saw in 1925, the party with the greatest seats didn’t form the government. As we’re seeing today, in a minority situation, the party with the greatest number of seats may not be able to maintain power. 

Ask the class: What do you think?

This topic offers perfect fodder to have students write an editorial. Some of the topics could include:

• There ought to be a law:  setting out clear rules on how our system works
• Some democracy: an examination of the role of the Governor General 

These are just a few ideas.  I’m sure that we could collectively share many more suggestions. In fact, maybe a debate would be a better idea? Whatever you decide, one thing’s for certain, the law and our legal system offer us countless opportunities to engage the analytical and critical thinking skills of our students. And hopefully this means exciting and interesting law classes for us all.

Additional Facts

In 1921, King had formed minority government: Liberals 117, Progressives 65, Conservatives 50, Labour 2, Independent 1. Interestingly, this was the first post-war election and brought an end to the “Union” Government (a coalition of Liberals and Conservatives).

In the election following the defeat of Meighen’s government in 1926, King won a majority: Liberals 128, Conservatives 91, Progressives 30, Others 6. King’s campaign focused on the idea that the Governor General could not refuse the advice of the cabinet to dissolve parliament. This was, he argued, the fundamental basis of responsible government that the Governor General had to take the advice of the elected government.

Sources for Canada's Parliamentary System

• "How Canadians Govern Themselves" Eugene Forsey
  Forsey remains the authority on Canada's parliamentary system
• The King-Byng Affair - see the entry in The Canadian Encyclopedia or on a Quebec History site by Marianopolis College
• The Constitution (Constitution Act, 1867) — on the Government of Canada Department of Justice

Writing is Great but Teaching is Where the Real Fun is - by Larry O'Malley

Whenever I meet with teachers, I’m always asked about how we wrote Law in Action. The writing process, for both the first edition and the second edition, was very similar and is very interesting. Each time, there was one meeting, about one hour in length at the Pearson Offices in Don Mills. And that was it — the rest was done by email and a very limited number of phone calls.

Format for Dummies?

I like to refer to this text as having taken shape from the “Writing for Dummies” format. We took the Ontario and British Columbia Curricula, set out the four curriculum strands (which became the units into which the book is divided) and then used the overall and specific expectations to outline the chapters and content of the text. Pretty straight forward stuff. The fifth strand, Methods of Legal Inquiry, is woven into each of the units — these are the skills that students need to learn and use to successfully study law.

The Fifth Strand

It was the fifth strand that changed the book from a “Writing for Dummies” session into an enjoyable, and challenging, journey into producing a text, and teacher resource, that could bring law alive in the classroom for our students. In order to do this, each of us drew upon our classroom experience to come up with activities, teaching methodologies, assessment tools, and additional resources that would help anyone using our text to deliver a dynamic, interactive law course that would meet the needs of the students within their individual class.

Law is Fun

The process has been similar for the second edition, except that now we’ve benefited from the feedback we’ve received from many teachers (and students) from across Canada. Transforming the “law” into a fun, interactive classroom activity, and the subsequent positive energy that results, is really what makes teaching — especially teaching law — such a rewarding experience. I believe that as law teachers, we are a very fortunate group for many reasons. I tell students all the time that I have the greatest job in the world because I get paid to do something that I love — I couldn’t imagine having a job which I loathed and to which I would have to drag myself out of bed each morning in order to get there on time. My own children, even though two of them are now teenagers, will tell you, “Dad doesn’t work, he goes to school”. But within the ranks of the teaching profession I think that those who teach social studies subjects such as law are very fortunate.

Just Plain Weird

I happen to be qualified to teach history, political science, law and math. I like to say that this is my unique personality since there are not very many teachers who have social science and math on their ticket — my wife likes to say quite simply that I’m just plain weird. She may be right. However, law is a fabulous course to teach. Every day there is a new controversial topic that keeps our students, and ourselves, keen and interested to see what the outcome will be. If you’re like me, you frantically scour the morning paper to see what relevant article you can use to highlight some key concept that you’ve been trying to get across to your students.

An Unfair Battle

And around the corner, in room 226, I know that Amy is trying to instill enthusiasm for a 2500-year-old theorem from Pythagoras — it seems like an unfair battle doesn’t it? What can keep the interest of students longer, the growing trend of law suits in Canada or trying to calculate how much paint you need to paint the triangular barn-end drawn so nicely in the text in “stick man” form? I look forward to an exciting time sharing information, suggestions, resources and ideas as we help students develop the skills and knowledge as we put Law in Action once again.