Case considered: R. v. Ryan, 2010 ABQB 87

PDF version: Faint Hope for the Faint Hope Clause?

Parliament commenced a new session last week. When it was prorogued in December 2009, 14 bills containing amendments to the Criminal Code died on the order paper, including Bill C-36, the Serious Time for the Most Serious Crime Act. Bill C-36 would have repealed the “faint hope” clause, a provision in the Criminal Code that currently allows persons convicted of first or second degree murder to seek early release on parole after serving 15 years of their sentence. Bill C-36 had passed through three readings in the House of Commons, and was before the Liberal dominated Senate before prorogation, where the amendments to the Criminal Code were a matter of some controversy. Now, there is some indication that the government will ask the opposition to reinstate rather than reintroduce the crime bills this session. Reinstatement would require a majority vote in the House of Commons to allow the process of considering the bills to resume where it left off. The difference of course is that the Senate now has several more Conservative members, appointed during the period of prorogation. A recent Alberta case helps to illustrate the potential consequences of Bill C-36 should it become law.

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February 26, 2010 is the second anniversary of ABlawg. To mark this occasion, we are interested in hearing from our readers about the impact and usefulness of ABlawg.Here are some of the questions on which we would appreciate receiving feedback:

• Are you a subscriber to ABlawg?
• How often do you read ABLawg?
• Have you used ABlawg posts in your work? How?
• Are you aware of ABlawg posts that have been cited by a court, in a legal argument, in an academic article or in another blog post? Please provide details.
• Has ABlawg assisted you in understanding the law in a particular area?
• Have you posted a comment to an ABlawg post? Why or why not?
• How does ABlawg compare with other blogs that you may subscribe to?
• What can we do to improve ABlawg?

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PDF version: ABlawg’s Top Cases and Legal Developments from the 2000s, and a Vote for Dunmore

It is the first month of a new year, and the first year of a new decade. Hence, it is a time for lists. Rolling Stone magazine has opined on the top albums, songs and movies of the 2000s, and the Globe and Mail has weighed in on the top 10 nation builders of the last decade. On the legal front, the Globe also lists the top trials of the decade in Canada as well as internationally. The Court has compiled some statistics on the Supreme Court’s output over the 2000s, and plans its own series of posts on the top judgments of the last decade.

Here at ABlawg, some of our bloggers will be writing about the case or legal development they think was most important from the 2000s. Other bloggers will be compiling top ten lists within particular areas of law. In keeping with the focus of ABlawg, our contributions will be linked to the impact the cases or legal developments have had in this province.

My own pick for a case of significance is Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016. Dunmore was hailed for its recognition that the Charter may impose positive obligations on government. In this case, the obligation arose in the context of including agricultural workers within labour relations legislation as an aspect of freedom of association under section 2(d) of the Charter. While Dunmore hedged on the issue of whether the government had a duty to include protections for collective bargaining, it opened the door for the Court’s later finding that there was such a duty in Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 391.

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Case considered: R. v. Pawlowski, 2009 ABPC 362

PDF version:  Charter Freedoms and Government Duties around Street Preaching: An (Overly?) Expansive View

Earlier this month, Judge Allan Fradsham of the Alberta Provincial Court handed down a lengthy and far reaching judgment dealing with religious freedom, freedom of expression, and government duties to write laws that are not vague or overbroad. Numerous charges against Artur Pawlowski for actions associated with ministering in public spaces were dismissed by Judge Fradsham. I have been a fervent critic of the courts’ extreme deference to government in several Charter cases, but the level of government accountability and limits on government action established in this case may go too far the other way.

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Case considered: Morrow v. Zhang, 2009 ABCA 215, leave to appeal dismissed by S.C.C. December 17, 2009

PDF version:  Supreme Court denies equality claimants leave to appeal insurance cap

The Supreme Court has denied Peari Morrow and Brea Pederson leave to appeal the Alberta Court of Appeal ruling that upheld the province’s cap on non-pecuniary damages for soft tissue injuries incurred in motor vehicle accidents. Previous posts on ABlawg critiqued the Court of Appeal decision for (1) failing to apply the new approach to equality rights set down in R. v. Kapp, 2008 SCC 41, (2) improperly applying the old approach to equality rights from Law v. Canada, Minister of Employment and Immigration), [1999] 1 S.C.R. 497, (3) giving insufficient weight to evidence of stereotyping in relation to victims of minor tissue injuries, and (4) giving too much weight to the purpose of the law at the expense of its effects on those victims (see Some Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries and More Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries).

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Case considered: Boissoin v. Lund, 2009 ABQB 592

PDF version:  Court upholds Alberta’s Hate Speech Law

Back in September, I predicted the failure of a constitutional challenge to Alberta’s hate speech law, section 3 of the Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14 (HRCMA) (recently re-enacted as the Alberta Human Rights Act, R.S.A. 2000, c. A-25.5). The law was challenged by Stephen Boissoin on both division of powers and Charter grounds as part of his effort to overturn an earlier decision of the Alberta Human Rights Panel which found that Boissoin had engaged in hate speech for his letter to the editor “Homosexual Agenda Wicked”, published in the Red Deer Advocate. On December 3, 2009 Justice Earl Wilson of the Court of Queen’s Bench upheld the constitutionality of section 3. However, he also found that Boissoin’s publication did not amount to hate speech under that section. I will deal with the constitutional issues in this post; Linda McKay Panos will be posting on the interpretive issues.

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Cases considered: L.L.S. v. W.M.C., 2009 ABQB 527

PDF version: What Counts as “Sexual Abuse” under the Protection Against Family Violence Act?

Justice Donald Lee has written another decision dealing with a definitional issue under the Protection Against Family Violence Act, R.S.A. 2000, c.P-27 (PAFVA). In L.L.S. v. W.M.C., 2009 ABQB 527, Justice Lee had to consider whether to confirm an Emergency Protection Order (EPO) constraining a father’s access to his children because the father was watching pornography and openly engaging in sexual behaviours in the presence of his children. Unfortunately, Justice Lee concluded that this behaviour did not amount to “sexual abuse” without endeavouring to define the term. Further, the case highlights concerns about the interplay between child welfare legislation, custody and access laws and the PAFVA.

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Cases considered:  Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37

PDF version:  Motion for Re-hearing of Hutterian Brethren Case Dismissed by Supreme Court of Canada

On October 15, 2009 the Supreme Court of Canada denied a motion to re-hear the case of Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37. In that case, a majority of the Supreme Court denied the Hutterian Brethren’s claim that its members should be exempted from provincial photo requirements for driver’s licences based on freedom of religion. The Supreme Court did not provide any reasons for its decision, stating only as follows in a news release:

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Case considered: Boissoin and the Concerned Christian Coalition Inc. v. Lund, currently before the Alberta Court of Queen’s Bench

PDF version: Alberta’s Hate Speech Law Under Challenge

There has been much talk recently of whether hate speech laws are properly included in human rights legislation. When Alberta moved to amend its human rights legislation in 2009, some argued that section 3 of Alberta’s Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14 (HRCMA), our hate speech law, should be amended or repealed altogether. A 2008 report by Richard Moon recommended that the analogous provision in the Canadian Human Rights Act, R.S.C. 1985, c.H-6 (CHRA), section 13, should be repealed and that the hate speech provisions of the Criminal Code, R.S.C. 1985, c. C-46, should be used instead. Most recently, in Warman v. Lemire, 2009 CHRT 26, the Canadian Human Rights Tribunal held that section 13 of the CHRA violated freedom of expression as guaranteed by section 2(b) of the Charter, and could not be justified as a reasonable limit under section 1 of the Charter. The tribunal thus refused to apply section 13 and declined to grant a remedy against the respondent, Lemire, even though his actions met the definition of hate speech. These developments will all be significant in the case of Boissoin and the Concerned Christian Coalition Inc. v. Lund, where the appellant, along with interveners the Canadian Civil Liberties Association and the Canadian Constitution Foundation, are challenging the constitutionality of section 3 of the HRCMA before the Alberta Court of Queen’s Bench.

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Case Considered: R. v. Northern Forage Inc., 2009 ABQB 439.

PDF Version: Who is a Farm Worker? And Why Does it Matter?

Alberta marked its 5th annual Farm Workers Day on August 20, 2009. As in previous years, the event provided an opportunity to advocate for equal protection for farm workers under Alberta’s labour and employment laws. Farm workers are currently excluded from the following laws: (1) protections regarding wages, overtime, holidays, and hours of work (see Employment Standards Code, R.S.A. 2000, c.E-9, section 2(4)); (2) mandatory coverage for workers compensation (see Workers’ Compensation Regulation, Alta. Reg. 325/2002, Schedule A); (3) work-related health and safety protections (see Occupational Health and Safety Act, R.S.A. 2000, c. O-2, section 1(s)); and (4) protections related to the unionization of workers (see Labour Relations Code, R.S.A. 2000, c. L-1, section 4(2)(e)). This makes Alberta one of the most lax provinces in Canada in terms of farm worker protection. Groups such as the Alberta Federation of Labour have called for an end to such exclusions, and a recent inquest into the fatality of agricultural worker Kevan Chandler led Judge Peter Barley to recommend that “paid employees on farms should be covered by the Occupational Health and Safety Act…” (at 7). Until the Alberta government amends the relevant legislation, however, questions may arise as to which workers are covered by the exclusions.

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