Category: Constitutional Page 1 of 73

Case Commented On: JD Irving, Limited et al v Wolastoqey Nations, 2025 NBCA 129 (CanLII); Wolastoqey Nations v New Brunswick and Canada, et al., 2024 NBKB 203 (CanLII)

PDF Version: “Declarations of Aboriginal Title Are Not Discretionary”

Robert Hamilton has already posted an ABlawg article on the recent New Brunswick Court of Appeal decision in the Wolastoqey Nations case. In it, he does an excellent job of summarizing the issues on the motion to strike the industrial defendants from the proceedings and of critically analyzing the Court of Appeal’s decision. I will therefore focus my commentary on what I regard as another troubling aspect of the decision, namely that a judicial declaration does not necessarily follow from a factual finding of Aboriginal title.

This action was brought by the Wolastoqey Nations against Canada, New Brunswick, and a number of industrial, fee simple landowners who brought the motion to strike to avoid participation in the litigation. On such a motion, the facts alleged in the statement of claim are assumed to be established. The question was thus limited to whether these landowners were proper parties.

Religious Freedom and the Oath to the Sovereign, Revisited

By Howard Kislowicz

On January 16, 2026

In Charter, Constitutional, Equality, Equity, Diversity, and Inclusion, Ethics and the Legal Profession

By: Howard Kislowicz

Case Commented On: Wirring v Law Society of Alberta, 2025 ABCA 413

PDF Version: Religious Freedom and the Oath to the Sovereign, Revisited

On December 16, 2025, the Alberta Court of Appeal overturned a decision of the Court of King’s Bench which had held that the Oath of Allegiance required of candidates for enrolment in the Alberta Law Society did not infringe the religious freedom of the claimant, Mr. Wirring. At the relevant time, the text of the Oath was as follows:

I ________swear I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Her heirs and successors, according to law (quoted in Wirring v Law Society of Alberta at para 2).

The Nuclear Option: An Update on Alberta’s Legislation Targeting Trans and Gender Diverse Youth

By Jennifer Koshan

On November 19, 2025

In Constitutional, Equality, Equity, Diversity, and Inclusion, Human Rights, Injunctions, Youth and the Law

By: Jennifer Koshan

Case and Bill Commented On: Egale Canada v Alberta, 2025 ABKB 394 (CanLII); Bill 9, Protecting Alberta’s Children Statutes Amendment Act, 2025, 2^nd Session, 31st Legislature

PDF Version: The Nuclear Option: An Update on Alberta’s Legislation Targeting Trans and Gender Diverse Youth

On November 18, 2025 the UCP government introduced Bill 9, which seeks to amend three statutes that were passed last year restricting the rights of trans and gender diverse youth. The Protecting Alberta’s Children Statutes Amendment Act, 2025 invokes s 33 of the Charter, such that if the Bill is passed, the three statutes will apply notwithstanding several Charter rights and freedoms, the Alberta Bill of Rights, RSA 2000, c A-14, and the Alberta Human Rights Act, RSA 2000, c A-25.5. This is the second time s 33 has been used in recent weeks, with Bill 2, the Back to School Act, SA 2025, c B?0.5, invoking s 33 to end the teachers’ strike and impose a contract on them in late October (see an ABlawg post on Bill 2 by Shaun Fluker et al here).

Back to School Notwithstanding the Charter

By Shaun Fluker

On October 30, 2025

In Constitutional, Education, Labour/Employment, Rule of Law, Statutory Interpretation

By: Shaun Fluker and JD students registered in the Public Interest Law Clinic

Legislation Commented On: Back to School Act, SA 2025 (full citation unavailable at publication time)

PDF Version: Back to School Notwithstanding the Charter

On Monday October 27, 2025, the Minister of Finance Nate Horner tabled Bill 2, Back to School Act, in the second session of the current Legislature, and the UCP government subsequently pushed it through all three readings of the legislative process, effectively passing it on the same day it was introduced. The Back to School Act came into force on royal assent on October 28, 2025. The Act legislates the end of the Alberta Teachers Association (ATA) strike and imposes labour terms between the Province of Alberta and the ATA for 4 years. While this alone warrants significant scrutiny, section 3 of the Act goes further and pre-emptively invokes the Charter’s notwithstanding clause (section 33), immunizing the Act from being struck because it unlawfully infringes sections 2 and 7 to 15 of the Charter. This post explains why the Back to School Act remains justiciable, which is to say, a law still amenable to judicial scrutiny.

Democratic Charter Rights and First-Past-The-Post: A Shallow Conception of Democracy at the Ontario Court of Appeal

By Hannah Hunter-Loubert

On September 26, 2025

In Constitutional, Election/Voting, Equality

By: Hannah Hunter-Loubert

Case Commented On: Fair Voting BC v Canada (Attorney General), 2025 ONCA 581

PDF Version: Democratic Charter Rights and First-Past-The-Post: A Shallow Conception of Democracy at the Ontario Court of Appeal

Despite many Canadians’ dissatisfaction with our current first-past-the-post (“FPTP”) election system, every attempt at reform so far has failed. The failed political attempts include the 2015 Liberal Party campaign promise to reform FPTP (at 27) and later abandonment of reform efforts, as well as the unsuccessful referendums in BC. A previous Charter-based challenge to the provincial system in Québec was dismissed in Daoust v Québec (Directeur general des élections), 2011 QCCA 1634. As of last month, the Charter challenge brought by Fair Voting BC and Springtide Collective for Democratic Society (collectively, the “Applicants”) is no exception. I will begin my commentary on Fair Voting BC v Canada (Attorney General), 2025 ONCA 581 (Fair Voting BC )by providing a summary of the Applicant’s claim, as well as some background on FPTP or single member plurality (SMP), compared to the proportional representation (PR) system advocated for by the Applicants. I will then review the majority decision in Fair Voting BC, highlighting what I believe to be a narrow and impoverished view of democratic rights under the Charter and the more balanced approach taken by Justice Dawe in his concurring reasons. I will conclude by emphasizing both the difficulty and the importance of judicial protection of democratic rights. Judicial restraint is commendable, and indeed essential, to protect the ideal of a free and democratic society. However, interpreting the right to vote as being limited to the mere ability to cast a ballot, as the majority does, risks abdicating the judicial responsibility to protect the foundation upon which the entire democratic system is premised.