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)).

(more…)

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.

(more…)

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).

(more…)

 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.

(more…)

PDF version: Interpreting Section 15(2) of the Charter: LEAF’s Intervention in Alberta (Minister of Aboriginal Affairs and Northern Development) v. Cunningham 

Case considered: Her Majesty the Queen in Right of Alberta (Minister of Aboriginal Affairs and Northern Development), et al. v. Barbara Cunningham, et al. (Alberta) (Civil) (By Leave) Case number 33340, on appeal from Cunningham v. Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 239

The Supreme Court of Canada is scheduled to hear the appeal of the Alberta government in Alberta (Minister of Aboriginal Affairs and Northern Development) v. Cunningham on Thursday, December 16, 2010. Cunningham will be the first case in which the Supreme Court considers the application of section 15(2) of the Charter since that Court gave independent meaning to section 15(2) in R. v. Kapp, 2008 SCC 41 and the first case in which the Court must consider the possible application of section 15(2) when the challenge is on the basis of under-inclusiveness. This comment is based on my experience serving on the Women’s Legal Education and Action Fund (LEAF) case subcommittee in Cunningham, the factum filed by LEAF, and, to a much lesser extent and only to offer a contrast, the facta of the Appellants and the Attorney General of Ontario.

(more…)

PDF version: Leave to Appeal Granted in Language Rights Case

Case Considered: R. v. Caron, 2010 ABCA 343

Gilles Caron was charged with a traffic violation under Alberta’s Use of Highways and Rules of the Road Regulations, A.R. 304/2002, back in 2003. He sought to defend himself against that charge on the ground that Alberta legislation is unconstitutional because it is not enacted in both English and French. Caron’s case has two important dimensions to it. First, he argued that he was entitled to an interim costs award to permit him to pursue his language rights challenge, relying on British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 S.C.R. 371. This argument was successful at the Court of Queen’s Bench (see Special Enough? Interim Costs and Access to Justice) and at the Court of Appeal (see Interim Costs Order Upheld in Language Rights Case). The Supreme Court granted the Alberta government leave to appeal in August 2009, and heard the appeal on the interim costs issue on April 13, 2010.

(more…)

PDF version: Facebook and Freedom of Expression

Case considered: Pridgen v University of Calgary, 2010 ABQB 644

Pridgen v University of Calgary involves twins Keith Pridgen and Steven Pridgen, two students at the University of Calgary who were enrolled in the Faculty of Communications and Culture in the fall of 2007. Both students participated in posting comments to a Facebook Wall created by a fellow student, under the name of “I NO Longer Fear Hell, I Took a Course with Aruna Mitra.” Professor Mitra was teaching a Law and Society course, namely LWSO 201, which the Applicants were taking.

(more…)

PDF version: Unconstitutional Regulatory Offences: Too Much and Too Little at Stake  

Case considered: R. v. Keshane, 2010 ABPC 275

In a thorough 22 pages, Provincial Court Judge Donna Groves acquitted Renada Lee Keshane of a $500 ticket for fighting in public. Ms. Keshane was ticketed under a decade-old provision of Edmonton’s Public Places Bylaw, Bylaw 14614, which, the Court ruled, violates the constitutional division of powers. While the cost of litigating this ticket almost certainly dwarfed the fine at stake, constitutional review of bylaw offences is predictably and disturbingly sparse. “Fighting in Public” and similar provisions impose considerable limits on behaviour, but are rarely worthwhile to litigate. The potential result is the injustice of a longstanding unconstitutional provision.

(more…)

PDF version: Access to Justice and Representation by Agents 

Case considered: R. v. Frick, 2010 ABPC 280

Cutbacks to legal aid are a harsh reality in Alberta and the rest of Canada. As noted on the website of Legal Aid Alberta (LAA), “as of April 6, 2010, LAA’s eligibility guidelines for full representation by a lawyer have decreased by 30%”. This is due in part to the fact that in this province at present, legal aid funding is highly dependent upon Alberta Law Foundation revenue, and this revenue has been adversely affected by the economic downturn. It is also due to government cuts to Legal Aid. Legal Aid has developed a bandaid of sorts through Legal Services Centres, which “provide clients access to legal information, referral and brief services (in family, criminal, civil and immigration matters) with legal advice in immigration and non-family civil matters.” However, these centres exist only in Calgary and Edmonton, deal only with certain legal matters at present, and perhaps most importantly, do not provide full legal representation. Attempts by lawyers such as Dugald Christie and the Canadian Bar Association to bring constitutional claims asserting rights to representation by paid legal counsel in certain circumstances have not been successful. In such a climate, it is not surprising that other actors - such as agents - have stepped into the fray to provide legal services. A recent Alberta Provincial Court case, R. v. Frick, shows that there are legislative and constitutional limits to the role that agents can play in filling the gaps in legal aid.

(more…)