Category: Constitutional Page 10 of 72

Case Commented On: Top v Municipal District of Foothills No. 31, 2020 ABQB 521 (CanLII)

The legal environment is primarily constructed by written or spoken words. Lawyers write, submit, and file documents, and through their daily work, create a language of the law. Sometimes written laws impact the visual world. Such a law was at issue in the recent decision of Justice Nicholas Devlin in Top v Municipal District of Foothills No. 31, 2020 ABQB 521 (CanLII). In that case, the Municipal District (MD) Bylaw prohibited the use of signage on trailers, a continuing problem in the rural setting of the Foothills County. Other types of signage were permitted but it was the aesthetically unpleasing trailer signs, parked along the side of the roadways, which were a matter of contention. Justice Devlin agreed the law limited free expression under section 2(b) of the Charter but was a reasonable limit under section 1 of the Charter, considering the municipality’s pressing and substantial objective to protect the “visual environment” from “visual pollution” (at para 3). Although raised to justify the Charter violation, the idea that the visual environment is a value to be protected is intriguing. In Top, expression and the visual intersect, as the written law provides a platform for the perfect view. This post will explore this intersection and whether the legal landscape can or should protect the visual one.

Private Health Care and the Law Part 1: Litigation Challenging Limits to Private Care

By Lorian Hardcastle

On September 14, 2020

In Constitutional, Health Law

By: Lorian Hardcastle

PDF Version: Private Health Care and the Law Part 1: Litigation Challenging Limits to Private Care

Case Commented On: Cambie Surgeries Corporation v British Columbia (Attorney General), 2020 BCSC 1310 (CanLII)

On September 10, Justice Steeves released his decision in Cambie Surgeries Corporation v British Columbia (Attorney General), which addresses the constitutionality of BC’s limits on private health care. The plaintiffs argued that if the government could not provide timely care, it could not prevent patients from accessing private care (at para 27), while the government argued that limits on privatization are necessary to protect the public system and ensure equitable access. This blog post summarizes the 880-page ruling, with a focus on section 7 of the Charter. It omits other issues, including a brief analysis of section 15 of the Charter (at paras 2804-2874) and a discussion of the impartiality and independence of expert witnesses (at paras 1064-1152). For readers who are unfamiliar with constitutional law, this document briefly outlines the approach courts take in adjudicating Charter claims. A second blog post will discuss the relevance of this case in Alberta.

The New Definition of a ‘Mental Disorder’ in the Mental Health Amendment Act: A Potential Gap in Care for ‘Persistent’ Mental Disorders?

By Fraser Gordon

On August 13, 2020

In Constitutional, Health Law

By: Fraser Gordon

PDF Version: The New Definition of a ‘Mental Disorder’ in the Mental Health Amendment Act: A Potential Gap in Care for ‘Persistent’ Mental Disorders?

Bill Commented On: Bill 17, the Mental Health Amendment Act, 2020, 2nd Sess, 20th Leg, Alberta, 2020

Bill 17, the Mental Health Amendment Act (MHAA) was introduced to the legislature on June 4, 2020, with an anticipated proclamation date set for September, 2020. While presented by Tyler Shandro, the Minister of Health, as aimed at “strengthening the rights of these patients and assuring their rights are provided for and respected while they receive care” (Alberta Hansard, June 4, 2020 at 1125), this Bill also represents the province’s response to JH v Alberta Health Services, 2019 ABQB 540 (CanLII), which found several provisions of Alberta’s Mental Health Act, RSA 2000, c M-13 (MHA) an infringement on a person’s rights under sections 7, 8, 10(a) and (b) of the Canadian Charter of Rights of Freedoms.

In particular, the legislature recognized the Court’s concern in JH as to the suitability of the MHA’s provisions for involuntary detention and treatment for persons suffering from mental disorders that are untreatable, and has sought, in the MHAA, to refocus, and perhaps narrow, these provisions upon persons who are suffering from severe mental illness that are capable of being resolved by treatment. This change finds expression in the MHAA’s change to the definition of a “mental disorder”, which now excludes “a disorder in which the resulting impairment is persistent and caused solely by an acquired or congenital irreversible injury.” In this post, I want to consider the potential effects of this change in caring for persons now excluded under the MHAA’s definition. My concern is that this new definition may create a gap in the current legislative scheme for the care of persons suffering from “persistent” mental health disorders, and place such persons – and others – at risk. This would certainly be an ironic – and I am sure unintended – outcome of legislation which has as its aim the strengthening of the rights of persons suffering from mental disorders.

Offers to Settle and The Public Interest in Charter Litigation: Stewart v Toronto (Police Services Board), 2020 ONCA 460

By Drew Yewchuk

On August 12, 2020

In Constitutional, Costs

By: Drew Yewchuk & Sarah Shibley

PDF Version: Offers To Settle and the Public Interest in Charter Litigation: Stewart v Toronto (Police Services Board), 2020 ONCA 460

Case Commented On: Stewart v Toronto (Police Services Board), 2020 ONCA 460 (CanLII)

Stewart v Toronto (Police Services Board), 2020 ONCA 460 (CanLII) is a costs decision that concludes a ten-year legal battle about the power of police to stop and search protestors. Mr. Stewart was successful in obtaining a court decision that the Toronto Police Service (TPS) had violated the Charter by searching him without lawful justification and interfering with his freedom of speech. Despite his success, because of the Toronto Police Service’s $10,000 settlement offer to Mr. Stewart in 2017 and Ontario’s rules for litigation costs and offers to settle, it ultimately cost Mr. Stewart more than $60,000 to successfully enforce his constitutional rights. This post argues that the normal cost rules relating to offers to settle are ill suited to public interest litigation against government bodies.

Restoring Balance? Bill 32, the Charter, and Fair Democratic Process

By Colin Feasby

On July 15, 2020

In Constitutional

By: Colin Feasby

PDF Version: Restoring Balance? Bill 32, the Charter, and Fair Democratic Process

Bill Commented On: Bill 32, Restoring Balance in Alberta’s Workplaces Act, 2020, 2nd Sess, 30th Leg, Alberta, 2020

On July 7, the United Conservative Party (UCP) government introduced Bill 32, styled the Restoring Balance in Alberta’s Workplaces Act, 2020. Bill 32 makes a number of changes to Alberta’s labour relations statutes that are of questionable constitutionality. The focus of this post is only on the constitutional dimensions of Bill 32’s impact on the capacity of unions to participate in political activities. Bill 32 is interesting from the perspective of democracy jurisprudence because it appears to be a paradigmatic example of the use of legislative power to silence or impair the efficacy of political opponents. A constitutional challenge to Bill 32, which seems inevitable based on early statements by Alberta unions, promises to provide a forum for the consideration of whether political animus is relevant to constitutional analysis. This post does not express a view on the constitutionality of Bill 32; rather, it explores how courts should approach constitutional analysis of legislation that has an obvious negative effect on political opponents of the government.

Category: Constitutional Page 10 of 72

Freedom of Expression & Protecting the Visual Environment

Private Health Care and the Law Part 1: Litigation Challenging Limits to Private Care

The New Definition of a ‘Mental Disorder’ in the Mental Health Amendment Act: A Potential Gap in Care for ‘Persistent’ Mental Disorders?

Offers to Settle and The Public Interest in Charter Litigation: Stewart v Toronto (Police Services Board), 2020 ONCA 460

Restoring Balance? Bill 32, the Charter, and Fair Democratic Process