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The least democratic aspects of Canada's Constitution may provide the best defence of our election process – CBC.ca

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This column is an opinion by Eric M. Adams, vice dean and professor of law at the University of Alberta, Faculty of Law, where he teaches and researches Canadian constitutional law. For more information about CBC’s Opinion section, please see the FAQ.

Democracies are not made on election day. As recent events in the United States remind us, it is what happens just after elections that can cause democracies to face their greatest challenge. The capacity to change power peacefully and uneventfully is the triumph of democratic government, and a value we lose at our peril.

It was only ever a faint hope that President Donald Trump would accept losing the U.S. election with muted resignation, let alone the dignity that has defined the transfer of presidential power.

Fuelled by narcissism, indecency, and indifference to fundamental democratic norms, President Trump’s dangerous accusations of a stolen election, fraudulent mail-in votes, and corrupt state electoral institutions were part of a calculated strategy long in the making to inflame his base of ardent supporters. “This is going to be a fraud like you’ve never seen,” President Trump claimed about mail-in voting during the presidential debate at the end of September, a baseless theme Trump returned to frequently throughout the election campaign.

As election results began to turn in Biden’s favour, the president simply switched on the spooky lights of a house of horrors he had already built. The predictable results of fear, suspicion, mistrust, and conspiracy now playing out on American streets and the more crowded digital highways of social media only further corrode the public trust essential to the democratic process. Once spilled, the poison of mistrust is difficult to put back in the bottle.

The Trump campaign has launched a lawsuit challenging election results in Michigan, while the White House continues to keep president-elect Joe Biden’s transition team in limbo. 1:50

The sobering experience of watching these events unfold from Canada provides a moment to appreciate the elements of the Canadian Constitution that govern the transfer of power.

Like the United States, Canada has a constitutionally protected right to vote. “The right of every citizen to vote lies at the heart of Canadian democracy,” as the Supreme Court of Canada recently stated.

But that right is only as meaningful as the processes that surround it.

One hundred years ago, Parliament had the foresight to create what would become Elections Canada. This was done in order to remove Canada’s federal electoral process from the possibility of partisan government control, and to establish an independent body of experts to register voters and administer professional elections. That independence matters today more than ever.

But even the fairest of elections can be undermined if political leaders attack their legitimacy.

In the United States, this is especially so when the attacks issue directly from the Office of the President.

U.S. Secretary of State Mike Pompeo told reporters Tuesday he expects ‘there will be a smooth transition to a second Trump administration’ and repeated the president’s message to count every ‘legal’ vote, despite no evidence voter fraud occurred during the presidential election. 1:33

Such a nightmare in Canada – a prime minister claiming victory without foundation, or attacking an electoral process with wild conspiracies – seems improbable, but many would have thought similarly about the United States not very long ago.

As it turns out, the least democratic aspects of Canada’s Constitution may provide the best defence against such possibilities.

While Article II of the American Constitution places the full weight of both symbolic and actual executive power directly in the hands of an elected president, section 9 of Canada’s Constitution Act 1867 stipulates that the “Executive Government and Authority of and over Canada is hereby declared to continue to be vested in the Queen.”

Not exactly an inspiring theory of democratic rule. Or so it may seem.

Unlike the United States, the Canadian Constitution divides symbolic from actual executive authority.

Unlike the United States, the Canadian Constitution divides symbolic from actual executive authority.

Canadian elections do not change the symbolic executive, because that position is perpetually occupied by the Crown. In electing a Parliament, Canadian elections do determine by democratic means who may advise the Crown and govern in its name. The holder of that power is the leader of the political party commanding a majority of support in the House of Commons.

As the Crown’s representative, the Governor General supervises that process by doing very little, because Canada’s political leaders understand and are constrained by the constitutional rules that govern them.

A rogue prime minister may tweet invective and lies, pronounce false victories or refuse to cede power. However, they would do so in a constitutional system that holds them accountable to Parliament and, in extreme situations, to a Governor General with the discretion to refuse to comply with the unconstitutional advice of a prime minister gone truly bad.

Donald Trump and most of his team still refuse to admit that the Republican president lost last Tuesday’s U.S. election, resisting the usual transitional protocols. Joe Biden calls it embarrassing, as he prepares to move into the White House in January. 2:03

America will withstand this latest erosion of its democratic foundations, but whether it emerges from Trumpism strengthened or weakened by the experience remains to be seen.

As various court challenges sputter in the weeks to come, there is hope that the words Justice Robert Jackson of the United States Supreme Court wrote nearly 70 years ago remain as true today: “With all its defects, delays and inconveniences, [people] have discovered no technique for long preserving government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.”

As for Canada, an independent electoral process and parliamentary system of accountability that divides symbolic and actual executive authority has served our constitutional democracy well. Protecting those structures, and the constitutional law that gives them life, from the forces of illiberalism and authoritarianism is a responsibility that falls on all of us.


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Retailers call on Ontario to open non-essential stores, say restrictions aren't working – CBC.ca

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A group of about 50 retailers called on the Ontario government on Tuesday to open all stores across the province — including those in lockdown regions, where they suggest imposing a 25 per cent capacity limit on “non-essential” stores.

“We respect the extraordinary efforts you and your administration are making to safeguard the public interest during this extremely challenging time,” the retailers said in a letter to Premier Doug Ford and Health Minister Christine Elliott. “The problem is that Ontario’s policy of segregating ‘non-essential’ retailers from those deemed essential might actually be making things worse.”

The letter was signed by executives from several major retailers, including Hudson’s Bay Company, Canadian Tire, Ikea Canada, Roots and Staples Canada. It argues that the lockdowns in Toronto and Peel Region haven’t reduced the number of people shopping.

“Instead, it has funnelled those shoppers and the corresponding health risk into fewer, increasingly crowded stores within Toronto and Peel, as well as adjacent communities, such as we saw in Vaughan and Markham over the weekend,” the letter stated.

“At the same time, as the current policy pushes more Canadian consumers to a handful of big box retailers and discount stores, thousands of small, independent and local stores sit shuttered, with their hands tied, even though many sell the very same goods.”

According to the retailers, limited capacity in some cases — in combination with safety measures such as mandatory masks, physical distancing and hand sanitization — “can further reduce the potential for community spread while enabling more businesses to stay open across all regions during a make-or-break season for retail businesses.”

The letter notes that other provinces have taken similar steps in conjunction with public health officials and that these steps “will put fewer people in more stores, increasing safety for all. The current policy does the opposite.”

‘Difficult but necessary’ 

The province responded by noting the restrictions are aimed at limiting the spread of COVID-19 to protect the health and well-being of Ontarians.

Alexandra Hilkene, a spokesperson for Elliott, said the government must limit opportunities for individuals to have close contact with others to help stop the spread of the virus. This includes allowing box stores to operate at half capacity.

“These necessary measures are being taken to limit community transmission of COVID-19 in order to keep schools open, safeguard health system capacity, and protect the province’s most vulnerable populations,” Hilkene wrote in an email to The Canadian Press.

“To be clear, moving regions into a lockdown is not a measure this government takes lightly. However, as we have seen around the world, lockdowns are a difficult but necessary step to stop the spread, safeguard the key services we rely on and protect our health system capacity.”

She noted that the Ontario government is providing $600 million in relief to support eligible businesses required to close or significantly restrict services due to enhanced public health measures.

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Canada’s coronavirus cases surge past 380K while daily death toll average stands at 87 – Global News

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Canada’s cases of the novel coronavirus pushed past 380,000 Tuesday after health authorities added another 5,326 new cases of COVID-19, as well as 81 more deaths.

The data, announced by public health officials across the country, pushed the country’s total COVID-19 cases to 383,132 and its death toll from the virus to 12,211.

To date, a total of 304,888 people — or 79 per cent of all cases — have also recovered from the virus, while over 14,779,000 tests have been administered.

Read more:
Coronavirus therapeutics: A look at COVID-19 treatments in Canada

On Tuesday, Canada’s minister of public services and procurement, Anita Anand, said the federal government was in frequent talks with several coronavirus vaccine suppliers to negotiate earlier delivery dates.

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Health Canada is currently reviewing the approval of four vaccines, with the government previously estimating an initial rollout of six million doses — enough shots to fully inoculate three million Canadians — to come in the new year.

“The delivery window is within the first quarter of 2021 … I am negotiating with our vaccine suppliers every day for earlier delivery dates. So when the Health Canada approval comes we will kick into the delivery process ASAP,” Anand said.


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Coronavirus: Feds provide additional support to Indigenous communities amid outbreaks


Coronavirus: Feds provide additional support to Indigenous communities amid outbreaks

Leaked modelling revealed on Tuesday also showed that almost 800 Albertans were projected to be hospitalized with COVID-19 by mid-December, placing an increased strain on hospitals and intensive care units.

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Canada currently has over 2,600 hospitalizations from the virus, with the number steadily growing alongside the country’s cases and deaths.

Canada’s chief public health officer, Dr. Theresa Tam, said in a statement Tuesday that the number of people experiencing severe illness continues to increase, with an average of 87 deaths and over 2,250 people being treated in hospital over the past seven days.

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Coronavirus: Which COVID-19 treatments are available in Canada?


Coronavirus: Which COVID-19 treatments are available in Canada?

Ontario tallied the highest number of new COVID-19 cases Tuesday, with 1,707 more infections and seven new deaths. The province, which saw its daily coronavirus cases peak at over 1,800 on Friday, sent several of its hotspots into lockdown last week to curb its surge in new cases.

Read more:
Canada in talks with coronavirus vaccine makers ‘every day’ as approvals near: Anand

In Quebec, another 1,177 infections and 28 additional deaths were announced by health authorities Tuesday. The province has the highest number of COVID-19-related deaths in the country, which now stands at 7,084 following Tuesday’s increase.

Alberta reported 1,307 more infections as well, pushing it’s total caseload to 59,484. Ten more deaths were also added by health authorities Tuesday, with its provincial death toll now standing at 551. Manitoba reported another 282 cases while Saskatchewan added 181.

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B.C. added 653 more cases on Tuesday, of which three were diagnosed as “epi-linked,” meaning cases that displayed symptoms and were close contacts of confirmed infections, but were never tested. A total of 336 patients are considered epi-linked in the province, while the death toll stands at 457 after 16 more fatalities were announced.

Several territories and Atlantic Canadian provinces reported new cases as well, with Nova Scotia adding 10, New Brunswick another seven and both Newfoundland and Labrador and Nunavut reporting just one.

P.E.I., and the Northwest Territories did not add any new infections, while the Yukon has yet to update its Tuesday case figure.


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Coronavirus: Small businesses falling through cracks for government aid


Coronavirus: Small businesses falling through cracks for government aid

Cases of the virus continue to rise across the world, with 63,679,000 cases being reported as of today according to a tally kept by Johns Hopkins University.

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A total of 1,476,900 people have also died from the virus so far, with the United States, Brazil and India leading in both infections and fatalities.

© 2020 Global News, a division of Corus Entertainment Inc.

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PM: Feds, provinces agree vaccine prioritization should be consistent Canada-wide – CTV News

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OTTAWA —
As the precise order of who will follow seniors, health care workers and high-risk populations in line to get COVID-19 vaccines is still being sorted out, Prime Minister Justin Trudeau says the federal and provincial governments agree that there should be a cross-Canada “consensus” on the matter.

With Health Canada now beginning its assessment of a fourth potential vaccine candidate — Johnson & Johnson’s — the prime minister said talks are ongoing with the provinces and territories about the “challenging ethical and societal” aspect of the country’s vaccine rollout.

Logistics aside, governments and health care experts are having to weigh and decide who will be prioritized and what the eventual order of precedence will be for Canadians to line up and be vaccinated.

According to the preliminary guidance issued by the National Advisory Committee on Immunization, prioritization will be based on three factors: the state of the pandemic when the vaccine is available; the supply available and number of doses required; and the risk-benefit analysis of key populations such as those who are at higher risk for adverse outcomes if they contract the novel coronavirus.

Based on that advisory group’s preliminary guidance, the recommendation is that essential workers and others who face increased risks related to COVID-19 should be vaccinated against the disease before everyone else. Examples of those at higher risk include providers of essential services, or those whose living or working conditions put them at higher risk.

The subsequent order of who gets vaccinated next remains a largely open question, however, in the race to see 70 per cent of Canadians vaccinated by September.

“We talked about it with the provinces last week on our 22nd first minister’s call, and there was a number of perspectives, but there seemed to be a consensus that we should all agree across the country on what that list looks like and make sure that it is applied fairly right across the country,” Trudeau told reporters on Tuesday.

“There are more conversations to come and we will keep Canadians informed as we determine what that right order of priority is. Other elements of it is, certain vaccines might be more effective with certain populations versus others, and that’s why the experts are going to be so important in making determinations around, what is the best path to move forward for our country,” said the prime minister.

Though, Health Minister Patty Hajdu said later that provinces will be able to refine the prioritizations based on their own regional demographics.

“At the end of the day it is the provinces who deliver health care and it is the provinces who will decide on the priority populations and of course we’re working closely to make sure that we have coordination across the country, and that we agree on the principles, which in fact we have, we have a shared set of principles,” Hajdu said.

“There are also some federal populations that we will obviously have to take care of ourselves as the federal government,” Hajdu said. Examples of these groups would presumably be Indigenous communities and federal inmates.

Manitoba Premier Brian Pallister said on Tuesday that he and other premiers still have outstanding questions that need to be answered.

“Clearly we need our most vulnerable folks, our seniors… our front-line care workers to get the vaccine earlier, we can all agree on that. But the devil’s in the details, when you get beyond that. Should it be done on the basis of age? Or how do you determine vulnerability? Should it be done on the basis of ethnicity? Should it be done on the basis of race in some way? These questions have to be addressed,” Pallister said.

“We’re not saying the federal government has to do it all but we’re saying that we need to have the criteria established and the priority should be common, not different in one side of Saskatchewan’s border with Alberta than it is on the other, or not different than it is in Ottawa from Gatineau, but rather that we have a co-ordinated strategy.”

In an interview on CTV’s Power Play, New Brunswick Premier Blaine Higgs said in his province he doesn’t anticipate there will be a huge line up of people who want to get vaccinated early on, but communicating as clearly as possible in advance of who will be eligible first will help avoid a “panic situation.”

So far, just over $284 million has been spent on distributing vaccines to Canadians, with overall more than $1 billion allocated to Canada’s vaccine procurement effort, as part of a more than $14-billion commitment over the next several years on research into and development of vaccines and therapeutics.

AGE MAY BE KEY FACTOR: TAM

Chief Public Health Officer Dr. Theresa Tam said Tuesday that work is underway right now on getting more “granular” in planning who among the highest risk groups will be first.

“That detail work is, you know, being taken very seriously by the provinces and territories as they begin to plan their immunization clinics.”

Then, once the priority groups are immunized, it’s possible the next easiest way to break down the order would be by age, said Tam.

“The age group, based on our analysis is actually the easiest and the most scientifically-sound way, I think, of increasing the population coverage,” she said.

“We know that underlying medical conditions put people at high risk but when we actually analyze all the different underlying medical conditions, and their age, it still comes out that the age is in fact the most important where you look at severe illness and mortality.”

There will also be groups who won’t be able to get a vaccine early on, due to the lack of research into the potential impacts on them, such as children and people who are pregnant.

“Kids haven’t really been engaged in a lot of the clinical trials, so that would be another age group for which data is needed, and we’ll be looking towards more data on pregnant women as well,” Dr. Tam said.

Asked whether he anticipates being among the earliest groups to get vaccinated, Trudeau said that he’s “going to trust the experts to make the right determination of what the priority populations are.”

With files from CTV News’ Ryan Flanagan

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