Saturday, October 20, 2012

Election Day in Halifax: The Start of a new Era?

It's election day in Halifax, and there is only one certain outcome: Halifax will have a new mayor.  It's the end of the Peter Kelly era, as the man who has held the mayor's chair for the last twelve years exits under a cloud of scandal.

The assumption seems to be that former Dartmouth-Cole Harbour MP Mike Savage is a shoo-in to replace Kelly.   Most of the polling showed him with a decisive lead over his closest competitors, retired police officer Tom Martin, and business owner Fred Connors.  It remains to be seen if either Martin or Connors has been able to close the gap in the last few weeks of campaigning.

Regardless of who assumes the office of mayor, they face a number of challenges.  Halifax's violent crime rate is among the highest in Canada.  An infrastructure deficit means taxpayers could face a significant tab (estimated by Halifax Water to be in the order of $2 billion) to fix crumbling water and sewer infrastructure in the next several years.  Halifax continues to underinvest in its downtown and urban core, and the city continues to sprawl at an unsustainable rate, failing to meet even the modest goals of its own 25 year regional plan.

However, the biggest challenge the mayor will face may be trying to get council on the same page and moving the city in the same direction.  The previous council was described by many observers as "dysfunctional".  Some councillors continue to put narrow parochial interests, no matter how small, ahead of the good of the municipality.  Council has reversed its own decisions, and then sometimes reversed again, on more than one occasion.  Council has been highly criticized for making many decisions behind closed doors in "in camera" sessions.  And there is often a lack of public consultation on key issues: the costly Bayers Road/102 widening appears to be proceeding, despite a complete lack of public engagement or even a proper council hearing on the project.

Reality is that there will likely be many familiar faces on the new council.  Barring a few upsets, due to the new district structure, some of the toughest races involve incumbents against incumbents.  It is likely that the new council will look allot like the old one.

If Savage wins as expected, he will need to demonstrate the skills in working across political lines that he showed as an MP.  If he can pull off the upset, Martin will need every bit of the street smarts he learned as a police officer.  Similarly, Connors will need to show he can win over councillors with his ideas and enthusiasm.

Haligonians will need to temper their expectations with the reality that we have a weak mayoral system, which does not provide much power and authority to the mayor.  He will have only one vote amongst 17 on council, and although his role as chair gives him some ability to control the agenda, that power is limited.  The exercise sometimes looks a bit like herding cats.  It remains to be seen if the new, smaller council size makes this task any easier.

The mayor will also have to deal with CAO Richard Butts, who in the year and a half since he joined the municipality from Toronto, seems to have carved out a large sphere of authority for himself.

Although some people have been underwhelmed by the mayoral campaign itself, I think there is one positive thing we can take from it.  As an observer, I have seen a huge upsurge of new energy and new ideas around how to move this city forward.  There is a sense that Halifax has tremendous potential and opportunities.   There are numerous ways citizens can engage in moving the city forward, including the regional plan five year review, which is ongoing.

Regardless of who sits in the mayor's chair, or any other seat in council chamber, as citizens it is up to us over the next four years to hold their feet to the fire and ensure that we seize some of these opportunities, bring some of these new ideas to life, and see Halifax realize on its tremendous potential.

Thursday, October 18, 2012

The Pro-Rogue's Gallery

Prorogation is back in the news in Canada, after Monday's surprise announcement by Dalton McGuinty that he was both resigning as Premier, and had advised the Lieutenant Governor to prorogue Ontario's legislature.  Pundits and political commentators have been weighing in on the appropriateness of McGuinty's actions, with some describing it as an abuse of power, while other argue that he has every right to prorogue.

As a starting point, it's important to understand what prorogation is.  A Wikipedia article describes prorogation as: "the end of a parliamentary session in the Parliament of Canada and the parliaments of its provinces and territories. It differs from a recess or adjournment, which do not end a session, and from a complete dissolution of parliament, which ends both the session and the entire parliament, requiring an election for the House of Commons."

Prorogation is a power of the monarch (known as a Royal Prerogative or prerogative power) which is exercised by her appointed representatives, the Governor General in the case of federal government, and the Lieutenant Governor in the case of the provinces.  This power is exercised on the advice of the Prime Minister or Premier, but is otherwise virtually unfettered.  Since all Parliamentary sessions must come to an end at some point, prorogation is generally a routine parliamentary procedure, and is typically done once the government has completed the agenda they set forth in the speech from the throne that starts each parliamentary session. 

Where prorogation becomes problematic, however, is where the Prime Minister or Premier uses it for partisan political advantage instead of effective governance.  As detailed in the above wikipedia article, Stephen Harper was controversially granted a prorogation in 2008 to avoid a vote of confidence in the House of Commons when the opposition parties signaled their intent to defeat his government and replace it with a Liberal-NDP coalition with the support of the Bloc.  In 2009, Harper was granted another prorogation, stated to be to suspend Parliament during the Olympics, but suspected by many to allow his government to avoid facing difficult questions in the House of Commons about the Afghan Detainee controversy.  Similarly, in 2003, the Governor General granted Jean Chretien a prorogation, which enabled his government to avoid tabling a report on the sponsorship scandal with the House of Commons Public Accounts Committee.

Of course, partisan advantage is often in the eye of the beholder.  Conservatives supported the 2008 prorogation, stating that the proposed coalition was unstable, and a "coup" designed to "overturn the results of the recent election".  Those comments showed a huge misunderstanding of how parliamentary democracy works.  In any event, many of those same Conservatives had no problem with Stephen Harper writing a letter to the Governor General offering a similar arrangement to govern with the support of the NDP and the Bloc in 2004.

Similarly, many of the Liberals who described the 2009 prorogation as an attempt to "padlock Parliament" had no such compunction about Chretien's 2003 prorogation which served a similar partisan purpose.  And many of those same Liberals now defend McGuinty's prorogation, even though it is of indefinite duration until the Liberals pick a new leader, and appears designed to avoid a contempt finding against members of his government.

Of course, it is difficult to ever determine what the real reasons for a prorogation were, since the Governor General or Lieutenant Governor is not required to give reasons for their decision, and the Prime Minister or Premier is not required to disclose their advice.  Another problem is that there are no written rules limiting the way in which the power can be exercised, although there are arguably some limited constitutional conventions setting procedural limits around it use.

Canadians should be concerned about the above developments, and asking all parties tough questions about the use and abuse of the power of prorogation in all of the above situations.  Prorogation brings the business of Parliament to a halt, preventing important legislation from being passed in a timely fashion and vital committee work from getting done.  It also hinders the Opposition from doing their job, which includes asking tough questions of the government in the House of Commons.  It is quite simply not in the best interests of the country to allow Parliament to grind to a halt whenever it suits the governing party.

Several reforms have been proposed to the power of prorogation, including requiring Parliament to approve a prorogation.  In their excellent book "Democratizing the Constitution", Professors Turnbull, Aucoin and Jarvis suggest that prorogation should require a 2/3 vote in the House of Commons, which would generally require the government to get the support of one or more opposition parties in order to prorogue.  They also suggested the creation of written guidelines, similar to New Zealand's cabinet manual, regarding when certain prerogative powers and powers of the Prime Minister should be exercised. 

Guidelines seem easy enough to implement, although might be more difficult in practice, as there seems to be a lack of agreement among even constitutional experts as to when the power of prorogation is properly exercised.  Rules seeking to limit when the power of prorogation can be exercised may be more difficult to implement, especially since a 2009 decision of the federal court suggests that placing any limits on prerogative powers would require a constitutional amendment.   Amending the constitution has proven nearly impossible in Canada since 1982.  Nonetheless, the difficulty involved does not mean we should avoid attempting reform on this and other important constitutional issues.

One simple measure that might go some way toward beginning to address these problems would be if Governors General and Lieutenant Governors started providing reasons for their decisions to prorogue and exercise other prerogative powers.  I am not aware of any legal impediment, and is certainly within their powers to do so.   It could serve many purposes, providing more clarity and transparency around how these powers are used, helping Canadians to better understand our constitutional arrangements, and even helping some clear precedent around when it is appropriate to exercise these powers.  This is by no means a comprehensive solution to the problems raised by prorogation, but would at least be a first step in the right direction.

Thursday, October 11, 2012

Of Lawn Signs, Landlords and Tenants ...

With municipal elections fast approaching, some interesting legal questions have come up.  A friend of mine woke up the other day to find an election sign on his lawn which he hadn't authorized.  He phoned the candidate and found out the sign had been authorized by his landlord's mother.

This situation raises some interesting questions.  What right to landlords have to put up election signs on rental properties?  What right do tenants have to stop them?   And what right do tenants have to put up signs of their own?  What about condo owners and condo corporations?

I'll deal with the last question first, as the answer there is somewhat clear.  In Nova Scotia (as in some other jurisdictions), s. 54C of our Municipal Elections Act provides that a landlord cannot "prohibit a tenant from displaying election advertising posters on the premises leased by the tenant".  Similarly, a condo corporation cannot prohibit the owner of a condominium unit from displaying election advertising posters on the premises of that person's unit. 

However, a landlord or condo corporation can "set reasonable conditions relating to the size or type of election advertising posters that may be displayed on the premises and may prohibit the display of election advertising posters in common areas of the building in which the premises are found".  There are similar provisions in both the provincial Elections Act and the Canada Elections Act, so similar rules apply in provincial and federal elections as well.

These provisions have not, to the best of my knowledge, been argued in court in Nova Scotia, so it remains to be seen what kind of restrictions our courts would consider to be "reasonable".

However, it's important to note that the tenant's right is limited to the leased premises.  Most leases make a distinction between the premises actually leased by the tenant, which the tenant generally has the exclusive right to use and occupy, and common areas, such as halls, stairways, driveways, etc., which are used by some or all tenants.  There may also be areas of the landlord's property that aren't covered by the lease at all, such as a front lawn.

For those of you in apartment buildings, the leased premises are usually just the apartment itself.  So you may be able to put a sign in the window (subject to reasonable restrictions on size and type), but not much beyond that.  For those of you leasing entire houses, including the yard, you may be able to put the sign on the front lawn if that is part of the leased premises.  For those of you renting parts of houses or buildings, it is more of a gray area.  In each case, a careful review of your lease to determine what is and isn't included in the leased premises is essential.

As to what right the landlord has to put up an election sign, things are a little less clear.  Elections legislation and the Residential Tenancies Act don't deal specifically with this point, so it will really come down to the specific terms of your lease.  Again, your lease should identify the leased premises, common areas and so forth, and hopefully spells out what rights and responsibilities you and the landlord have with respect to each area.  Generally speaking, the landlord only has limited rights to enter the leased premises, but more rights with respect to common areas, and can do what they want on unleased portions of the property.  So if you live in an apartment, chances are your landlord can't put up an election sign in your apartment, but is likely within their rights to erect an election sign on the front lawn.  If you live in a house, and the leased premises include the whole property, then you likely can prevent the landlord from putting up an election sign on the property. Again, a careful review of your lease will be necessary. 

My friend was ultimately able to resolve the situation by calling his landlord.  And that should generally be your first way of dealing with this issue.  If that fails, you can always contact the residential tenancies program to find out more about your rights and how to assert them.  And, if necessary, you can contact a lawyer to help you interpret your lease.

This blog represents my own personal views and is provided for information purposes.   It is NOT meant to be legal advice.  If you require legal advice, you should consult a lawyer regarding your specific circumstances.