PDF version: French Language Rights in Alberta Get a Boost 

Case considered: R v Pooran; R v Vaillant, 2011 ABPC 77

Significant consequences can arise from what might otherwise have appeared to be just another mundane case; in this instance, charges under Alberta’s Traffic Safety Act, R.S.A. 2000, c. T-6. The facts and charges that led to Sonia Pooran and Guy Vaillant standing trial before a provincial court judge on April 14 are not important. What is important is that the entire proceedings will be in French, after a provincial court judge in Calgary decided they have that right.

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PDF version: A National Securities Regulator? – No way! says the Alberta Court of Appeal 

Case considered: Reference Re Securities Act (Canada), 2011 ABCA 77

Can the federal government pass legislation to establish and empower a national securities regulator? Essentially, this is the question referred by the Alberta Cabinet to the Alberta Court of Appeal. Specifically, the question relates to the draft National Securities Act, Sessional Paper No. 8 525-403-10. The National Securities Act would mean federal regulation of participants in the Canadian securities industry, federal disclosure rules and limits for raising money from the public, federal regulation of the trading of securities, and federal monitoring and enforcement of these rules to protect the public.

This question, the Alberta Court of Appeal answered with a resounding “No”.

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PDF version: Street Preaching and the Charter: The City of Calgary’s Appeal in Pawlowski 

Case commented on: R. v. Pawlowski, 2011 ABQB 93

Artur Pawlowski, Calgary’s self-professed street preacher, was acquitted of a number of provincial and by-law charges related to his preaching and other activities in December 2009. Judge Allan Fradsham of the Alberta Provincial Court found that the charges violated several of Pawlowski’s Charter rights, and could not be justified under s. 1 of the Charter (2009 ABPC 362). I argued that Justice Fradsham’s ruling may have been overly expansive in its approach to the Charter (see here). The City appealed the ruling in relation to the bylaw charges, and had some success at the Alberta Court of Queen’s Bench. However, the decision of Justice R.J. Hall on appeal raises some analytical questions that I will discuss towards the end of this post.

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PDF version: Mandatory Retirement Issue for Air Canada Pilots Has Taken Flight Again 

Case considered: Air Canada Pilots Association v Kelly, 2011 FC 120 (”Kelly“)

In 2009, the Canadian Human Rights Tribunal (”Tribunal”) ruled in favour of Robert (Neil) Kelly and George Vilven, two Air Canada Pilots who had challenged their mandatory retirement at age 60. See my post on “Pilot from Airdrie is Successful in Mandatory Retirement Case.” The Tribunal in that case - Vilven v Air Canada and Air Canada Pilots Association; Kelly v Air Canada and Air Canada Pilots Association, 2009 CHRT 24 (Vilven and Kelly) - ruled that the mandatory retirement provisions in the airline’s collective agreement with the Air Canada Pilot’s Association (”ACPA”) (as protected under s. 15(1)(c) of the Canadian Human Rights Act (”CHRA”)) violated the Canadian Charter of Rights and Freedoms (”Charter“) and could not be saved by s. 1 of the Charter. In 2011, the Federal Court agreed with the Tribunal’s decision on the Charter issue (see Kelly, paras. 50 to 351). In a decision on the remedy (2010 CHRT 27), the Tribunal ordered Air Canada to reinstate Kelly and Vilven and to compensate them for lost income. (more…)

PDF version: The Saskatchewan Court of Appeal’s Marriage Commissioners Decision – the never-ending fight for human rights of same-sex couples  

Case and Legislation commented on: In the Matter of Marriage Commissioners Appointed under the Marriage Act, SS 1995, c M-4.1, 2001 SKCA 3; Marriage Act, RSA 2000, c M-5.

The Saskatchewan Court of Appeal considered two proposed amendments to the Marriage Act, S.S. 1995, c. M-4.1. The Act legislates on the solemnization of marriage in Saskatchewan. It provides for specific religious officials and marriage commissioners to solemnize marriages. The Lieutenant Governor in Council in Saskatchewan sought the Court’s opinion on potentially amending the Marriage Act after complaints from marriage commissioners who said that solemnizing same-sex marriages breached their rights under s.2(a) of the Charter. (more…)

PDF version: Interim Costs and Access to Justice at the Supreme Court of Canada 

Case considered: R. v. Caron, 2011 SCC 5

The Supreme Court recently upheld the Alberta Court of Appeal decision in R. v. Caron, 2009 ABCA 34. That decision affirmed the jurisdiction of a superior court to award interim costs for public interest litigation before the provincial court, and found that Caron’s language rights challenge was an appropriate one in which to order interim costs pursuant to the test in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371 (Okanagan). The Supreme Court’s decision was unanimous (with a majority judgment by Justice Ian Binnie and a concurring judgment by Justice Rosalie Abella), and was welcomed by groups such as the Canadian Civil Liberties Association (CCLA). The CCLA had intervened in the case along with a number of other public interest groups, indicating some anxiety that entitlement to interim costs awards as originally set out in Okanagan may be further restricted by the Supreme Court, a restriction it commenced in Little Sisters Book and Art Emporium v. Canada (Commissioner of Customs and Revenue), 2007 SCC 2, [2007] 1 S.C.R. 38 (Little Sisters (No.2)).

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Case and Legislation commented on: In the Matter of Marriage Commissioners Appointed Under The Marriage Act, 1995, S.S. 1995, c. M-4.1; Marriage Act, R.S.A. 2000, c. M-5

The Saskatchewan Court of Appeal ruled last week on the constitutionality of proposed amendments to Saskatchewan’s Marriage Act, S.S. 1995, c.M-41, which would have allowed marriage commissioners to decline to perform marriage ceremonies that were contrary to their religious beliefs. The Court found that the proposed amendments violated the equality rights of gays and lesbians under section 15 of the Canadian Charter of Rights and Freedoms, and that this violation could not be justified under section 1 of the Charter because the Saskatchewan government had not minimally impaired the rights of same sex couples in the way it had set out the proposed scheme for religious exemptions.

What are the implications of the decision in Alberta? Surprisingly, the Marriage Act, R.S.A. 2000, c. M-5, still defines marriage as “marriage between a man and a woman” (section 1(c); see also the preamble), even though in 2004 the Supreme Court confirmed that the power to determine whether same sex couples have the capacity to marry belongs to the federal government under section 91(26) of the Constitution Act 1867 (Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698). While the Alberta government tried to shield the law by using section 33 of the Charter, the notwithstanding clause, that clause could not have saved the invalidity of the Act on division of powers grounds, and the relevant section of the Marriage Act expired in 2005 in any event. Furthermore, Alberta marriage commissioners have been performing same sex marriages in this province since 2005 in spite of the heteronormative definition in the Marriage Act. An attempt to bring in a law similar to that ruled upon in the Saskatchewan case was defeated when Bill 208, the Protection of Fundamental Freedoms (Marriage) Statutes Amendment Act, 2006, was blocked by members of Alberta’s opposition parties. This Bill would have amended the Marriage Act and human rights legislation to protect marriage commissioners who refused to perform same sex marriages on religious or moral grounds. On the face of it then, marriage commissioners in Alberta do not have the sort of opting out protection that was considered in the Saskatchewan case.

Melissa Luhtanen of the Alberta Civil Liberties Research Centre will be providing further analysis of the Saskatchewan case and its implications in Alberta on ABlawg; readers may also be interested in this post on the case by Denise Réaume on the Women’s Court of Canada blog.

PDF version: Is R v Gomboc really only about a homeowner’s expectation of privacy or is there more to it? 

Case commented on: R. v. Gomboc, 2010 SCC 55

The late November 2010 decision of Canada’s Supreme Court in R. v. Gomboc has come to represent one of two things in the divergent views of its critics and supporters. For critics from a civil libertarian perspective, our highest court’s approval of a power company’s act, pursuant to a warrantless police request, of monitoring a homeowner’s electrical usage and then providing that information to police engaged in a criminal investigation represents yet another example of a culture of authoritarianism that seems to be creeping into Canada’s judiciary. On the other hand, for the “law and order” crowd, especially those who see warrants as pesky obstacles to simply letting the police get on with it and just do their jobs, homeowners have no reasonable expectation of privacy over information about their electrical usage, so the Supreme Court’s decision that an authorizing warrant was not required is spot on. Furthermore, even if there was a breach of any privacy interest a person may have here, then it was so trivial that any fuss over it is unwarranted.

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PDF version: Sliding Down the Slippery Slope

Case considered: R. v. Loewen, 2010 ABCA 255

In the area of national security, the years since the attacks of September 11, 2001, have been characterized by an increased dominance of state power in terms of investigation, interrogation, and detention powers, often at the expense of individual liberties. This dominance has become entrenched in some respects in Canada, as well as in a number of other democratic nations, and in many ways has become so familiar that it arguably represents a new normal, rather than an extraordinary situation.

It is my belief that, while this shift has attracted most attention in the national security arena, and is primarily advanced in that arena, the increasing acceptance that individual rights must give way to state security interests sets the stage for the proverbial slippery slope, lending credibility to arguments for the erosions of individual rights in more traditional criminal matters as well. As an example, the increasing tendency of national governments to allow for warrantless searches in cases in which terrorism is alleged may arguably have served as an undercurrent for the recent decision of the Supreme Court of Canada in R. v. Gomboc, 2010 SCC 55 (overturning a ruling by the Alberta Court of Appeal and upholding a warrantless request by Calgary police to an electrical company to install a recording device, designed to measure electrical usage, to determine whether the person under investigation was growing marijuana).

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 PDF version: Using water reservations to protect the aesthetic values associated with water courses: a note on the Spray River (Banff)

Documents commented on: Order in Council 546\49; South Saskatchewan Basin Water Allocation Regulation, Alta. Reg. 307/1991 (rescinded by Bow, Oldman and South Saskatchewan River Basin Water Allocation Order, Alta. Reg. 171/2007); Alberta Environment, TransAlta Utilities (TAU) licence for the Spray River development.

I have been doing some work on Crown water reservations over the last few months and in the course of that came across an example of what at first glance seemed to be the use of a water reservation to preserve the aesthetic qualities of a watercourse. The example also has an interesting constitutional twist that is worth reflecting on.

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