Staff of the Halifax Alehouse work outside the bar in Halifax in the early hours of July 7.Darren Calabrese/The Globe and Mail
The failure of successive Nova Scotia governments to activate a law for licensing bouncers more than 13 years after it was passed could be unlawful, a legal scholar says.
Sujit Choudhry, a Toronto-based lawyer and constitutional law expert, said Globe and Mail articles published this month raise the prospect that the Nova Scotia government may be “vulnerable to a serious legal challenge.”
“Have they written off the 2010 law? If they have, that’s unlawful,” Mr. Choudhry said in an interview.
The regulatory void came to public attention after the death of 31-year-old Ryan Sawyer, allegedly at the hands of a Halifax bouncer who now stands accused of manslaughter. The province’s bouncers remain unlicensed despite a 2010 law passed by the Nova Scotia House of Assembly that directed the government to introduce a registrar to oversee the training and conduct of security staff at bars and nightclubs.
Mr. Sawyer’s family members are now calling for the government to activate the 2010 licensing law, the Security and Investigative Services Act, which has never been brought into force by successive NDP, Liberal and now Progressive Conservative governments.
“There are currently no plans to proclaim this legislation,” said Deborah Bayer, a spokeswoman for the Nova Scotia Justice Department, in an e-mail to The Globe.
Under parliamentary tradition, a law comes into force when it is proclaimed, normally shortly after the bill is passed. However it is now commonplace for lawmakers to write in clauses delaying commencement, so premiers and cabinet ministers make the call on the best time to proclaim the law.
Earlier this year, Mr. Choudhry helped persuade a Canadian high court that too much delay can be unlawful. He says that while politicians may well need time after a law is passed to put regulations in place, they cannot use their commencement powers to indefinitely ignore laws passed by a legislature.
“It’s one thing to be pragmatic,” he said. “It’s another thing to undermine the will of the legislature.”
“Ministers don’t have a veto,” he added. “Ministers are given a responsibility or a task by the legislature, to basically implement the law.”
In August, the Ontario Court of Appeal agreed with that point of view by unanimously ruling that cabinet ministers cannot scuttle legislation by delaying it. “There should be no ambiguity as to the limits on the Minister’s discretion,” Justice Lorne Sossin wrote on behalf of a panel of three judges. “Put simply, it would not be open to a Minister to decide that an enacted statute will never be proclaimed.”
The appeal court pronounced on these parliamentary points of law after Mr. Choudhry filed arguments on behalf of the Canadian Constitution Foundation, a legal advocacy group, in a case involving unproclaimed portions of an Ontario statute. ”The legitimate grounds for delaying proclamation must be related to the conditions necessary for implementing the legislation,” the court ruled.
Mr. Choudhry says Nova Scotia’s licensing law for bouncers could emerge as another significant case if anyone were to file a legal application drawing a court’s attention to the lengthy period it has been in limbo.
“The families of some of these poor young men who died unnecessarily [allegedly] at the hands of security could be appropriate litigants in my view,” he said.
He said a legal applicant could try to urge a Nova Scotia judge to declare that the provincial government has acted unlawfully by not proclaiming the law. If such a ruling were made, and the government did not respond to it, he said the applicant could then go back to court to seek an order directing that the unproclaimed law be brought into force.
In May, the government of Nova Scotia announced a new program for bouncers that imposes, as a condition of a licence to serve alcohol, a new training scheme. But the measure only affects security staff at five nightclubs in the province with extended hours. And it is a far cry from the across-the-province licensing law the legislature passed in 2010.
Commonwealth case law shows that courts can call out politicians who serve up limited regulations in place of legislated measures, Mr. Choudhry said.
Such legal precedents do not bode well for the government’s newly announced measures to train bouncers, he said. “Are the new requirements an off-ramp or an alternative to the act, in the face of a long unproclaimed statute that would create a more comprehensive regime?” he asked. “If they are an alternative, the government is exposed to legal liability.”