Unconstitutional or Just Unworkable? The Life and Death of a Prohibition on Floor-Crossing in Fletcher v the Government of Manitoba

Fletcher v the Government of Manitoba is the first reported challenge to a floor-crossing prohibition under the Canadian Charter of Rights and Freedoms. This case comment begins with the legislative history of the challenged provision and then provides an overview and critique of the reasons in Fletcher . Against this backdrop, it then reflects on the lessons of the case in two respects. The first is the difficulty in translating a policy idea into legislation – specifically, defining the conduct to be prohibited and determining the appropriate deterrent or penalty for breach. The second respect is the government’s role in defending legislation in court, particularly legislation that it considers to be bad policy and plans to repeal. The comment concludes that Fletcher ultimately demonstrates that governments should defend constitutionally viable laws in court – even laws that were adopted by a previous government and that are destined for repeal as bad policy.