Category Archives: Constitutional

Alberta Court of Appeal Restores Access to Habeas Corpus

PDF Version: Alberta Court of Appeal Restores Access to Habeas Corpus

Case Commented On: Wilcox v Alberta, 2020 ABCA 104 (CanLII) (Wilcox CA)

This Court of Appeal decision is significant for a number of reasons. Most importantly, the decision means that accused individuals in pre-trial solitary confinement in Alberta now have access to habeas corpus, the fastest way to challenge the legality of that confinement. So too do prisoners held in solitary confinement from the very beginning of their sentence. It is also significant because it criticizes the approach taken by the Court of Queen’s Bench to recent habeas corpus applications, including that of Mr. Wilcox. The appellate court found that the lower courts misunderstood precedents, cited cases for rules those cases did not support, ignored a 1985 Supreme Court of Canada decision, relied upon a case that had been overturned, found that an issue was not pled when it was, came to unreasonable conclusions, and made an unwarranted threat of personal costs against Mr. Wilcox’s counsel. In addition, the Court of Appeal clarified which habeas corpus pleadings are vexatious and abusive and which are not. It also vindicated the work of the Alberta Prison Justice Society and many of the individual prisoners’ rights lawyers in that group. Continue reading →

COVID-19 and the Emergencies Act (Canada)

By: Shaun Fluker

PDF Version: COVID-19 and the Emergencies Act (Canada)

Legislation Commented On: Emergencies Act, RSC 1985, c 22 (4th Supp)

As we move deeper into the COVID-19 pandemic in Canada, provincial, territorial and municipal governments are now using legal rules to impose self-isolation and social distancing measures for the common good of preventing community transmission of the virus. The narrative in daily updates from government leaders and public health officials has shifted away from encouraging voluntary practices and more towards invoking command and control, as evidence mounts that voluntary suggestions are not being followed. Command and control is, however, largely going to be a general deterrence measure because actual enforcement in individual cases will be very difficult and resource intensive (hence why some jurisdictions, such as the State of Oregon, are encouraging citizens to help with enforcement by reporting violators of public health orders). All of this underscores the fact that we are truly in the midst of a socio-economic crisis, and has led to suggestions (e.g. see here and here) that federal cabinet issue a proclamation of national emergency under the Emergencies Act, RSC 1985, c 22 (4th Supp) and exercise the powers granted thereunder. Continue reading →

What is the Threshold for Entrapment?

By: Kenryo Mizutani

PDF Version: What is the Threshold for Entrapment?

Case Commented On: R v Turgeon-Myers, 2019 ABQB 493

In the heist film “Entrapment,” Mac, a professional thief (played by Sean Connery), says, “I don’t like surprises.” Gin, an undercover agent pretending to be a thief herself (played by Catherine Zeta-Jones), replies: “Trust me, there won’t be any.” Mac then replies: “Trust me, there always are surprises.” And there always are surprises.

At first glance, R v Turgeon-Myers, 2019 ABQB 493, may seem like a case about entrapment. Yet upon closer examination, a careful reader may be surprised to learn that there is an evidentiary issue beneath the issue of entrapment. Similar to my earlier blog article about the informant privilege, Turgeon-Myers involved a police informant. This informant provided the police with information about drug trafficking, and the police subsequently conducted an undercover operation to make an arrest. The accused, while initially admitting guilt, applied for a stay of proceedings on the basis of entrapment. Continue reading →

Alberta Court of Appeal Opines That Federal Carbon Pricing Legislation Unconstitutional

By: Martin Olszynski, Nigel Bankes and Andrew Leach

PDF Version: Alberta Court of Appeal Opines That Federal Carbon Pricing Legislation Unconstitutional

Decision Commented On: Reference re Greenhouse Gas Pollution Pricing Act, 2020 ABCA 74

Last month, the Alberta Court of Appeal released its decision in Reference re Greenhouse Gas Pollution Pricing Act, 2020 ABCA 74, Alberta’s challenge to the constitutionality of the federal government’s Greenhouse Gas Pollution Pricing Act, SC 2018, c 12 (GGPPA). Writing for a majority of three judges, Chief Justice Catherine Fraser concluded that the GGPPAcould not be upheld on the basis of Parliament’s residual power over matters of “peace, order, and good government” (POGG), nor any other potentially relevant federal head of power. Concurring in the result but not the analysis, Justice Wakeling also held that the GGPPA was unconstitutional. Justice Feehan, dissenting, would have upheld the law on the basis of POGG, and the “national concern” branch of that power in particular. The Alberta Court of Appeal’s decision thus stands in contrast to the earlier decisions of the Courts of Appeal of both Saskatchewan (Reference re Greenhouse Gas Pollution Pricing Act 2019 SKCA 40) (Saskatchewan Reference) and Ontario (Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 544) (Ontario Reference), where a majority of judges in each court upheld the law as a valid exercise of the national concern branch of the POGG power. Continue reading →

Alberta Court of Appeal Concludes that University of Alberta is Subject to the Charter

By: Linda McKay-Panos

PDF Version: Alberta Court of Appeal Concludes that University of Alberta is Subject to the Charter

Decision Commented On: UAlberta Pro-Life v Governors of the University of Alberta, 2020 ABCA 1 (CanLII)

Once again, Alberta courts have been asked to address whether and when the Charter applies to activities at universities. There have been several ABlawg posts in the last few years that indicate there are two conflicting lines of cases across Canada. See: Context is Everything When it Comes to Charter Application to Universities, BCCA Unfortunately Chooses Not to Follow Alberta’s Lead on the Issue of Whether the Charter Applies to Universities; Does the Charter Apply to Universities? Pridgen Distinguished in U Vic Case; Face-ing the Charter’s Application on University Campuses; University Campus is not Charter-Free; and Freedom of Expression, Universities and Anti-Choice Protests. Continue reading →