Adult Capacity and Decision-making Act - Constitutionality - Question Period

MS. CLAUDIA CHENDER « » : Mr. Speaker, my question is for the Minister of Justice. There are serious concerns about whether this government's attempt at redrafting the Incompetent Persons Act is constitutionally sound. On Monday the Minister of Justice tried to allay some of these concerns by telling reporters, "We've reached out to the legal community and the academics - even those who are critical of the bill in that it hasn't gone far enough - believe it's constitutional." However, following a media request for a list of who was consulted, the minister admitted that no one has directly advised that it follows the constitution.

I ask the minister, why would he give such conflicting statements about the constitutionality of this important piece of legislation?

HON. MARK FUREY « » : I thank my colleague for the question. The discussion that I shared on Monday was around the collective discussion of those we reached out to externally as well as internally within the Department of Justice. We believe, based on those collective discussions, that this bill is constitutional. When I spoke yesterday I tried to clarify that it was the collective discussions of all the people we've engaged through the consultation process - that we believe this bill is constitutional.

MS. CHENDER « » : Mr. Speaker, an expert in mental disability law from Dalhousie University Law School did provide feedback to the government on the proposed approach twice. He argued that allowing the survival of orders made under the previous legislation is,". . . completely illogical, given the unacceptable standards of the old Act." Furthermore, he argues that, "It leaves a significant number of vulnerable individuals subject to all of the vulnerabilities or abuse permitted under the former legislation, with no mandatory scrutiny, which suggests an abandonment of responsibility."

I ask the minister, how can a piece of legislation be constitutional if it grandfathers in a key element of previous legislation that has been deemed unconstitutional?

MR. SPEAKER « » : I'm going to rule that question out of order. We're asking the minister's legal opinion on a piece of legislation, and that's not allowed.


Published by Order of the Legislature by Hansard Reporting Services and printed by the Queen's Printer.

Available on INTERNET at http://nslegislature.ca/index.php/proceedings/hansard/