Category: Constitutional Page 12 of 72

Case Commented On: G. v. Ontario (Attorney General), 2019 ONCA 264 (CanLII); leave to appeal granted, 2019 CanLII 89651 (SCC)

On February 20, 2020, we had the opportunity to watch the Supreme Court of Canada hearing in G. v. Ontario (Attorney General) in Ottawa (webcast available here). The Supreme Court was closed to public hearings in mid-March as a result of COVID-19, and we feel very fortunate to have had the chance to attend this hearing in person.

The case concerns the issue of whether the provincial and federal sex offender registries created by Christopher’s Law (Sex Offender Registry), 2000, SO 2000, c 1 and the Sex Offender Information Registration Act, SC 2004, c 10 (SOIRA) violate the Charter rights of persons found not criminally responsible on account of mental disorder (NCRMD). The Charter claimant, G, was found NCRMD on two counts of sexual assault, one count of unlawful confinement, and one count of harassment against his then-wife in June 2002. He received an absolute discharge from the Ontario Review Board (the body responsible for handling cases of persons found NCRMD) in August 2003. Despite this discharge, G was required to register with the Ontario and federal sex offender registries and was subject to their requirements for life. Persons who are found NCRMD have no ability to remove themselves from the Ontario registry at any point and can only apply for removal from the federal registry after 20 years. However, persons who are found guilty of sexual offences but receive a discharge at the time of sentencing are not required to register either provincially or federally, and persons who are convicted of sexual offences and later receive a pardon or record suspension may have their names deleted from the provincial registry. Neither option is available to persons found NCRMD.

Alberta Court Grants Injunctive Relief in a Constitutional Case

By Myrna Tuttle

On May 5, 2020

In Constitutional, COVID-19

By: Myrna El Fakhry Tuttle

PDF Version: Alberta Court Grants Injunctive Relief in a Constitutional Case

Case Commented On: A.C. and J.F. and her Majesty the Queen in Right of Alberta (19 March 2020), Edmonton 2003-048252020 (ABQB) (Transcript available here)

On March 19, 2020, Court of Queen’s Bench Justice Tamara Friesen granted a temporary injunction prohibiting the Alberta Government from implementing an amendment of the Child, Youth and Family Enhancement Regulation, Alta Reg 160/2004, which lowered the age of eligibility from 24 to 22 for young adults receiving financial and social support under the Support and Financial Assistance (SFA) program. This temporary injunction will apply until the Court hears and rules on the issue of whether the amendment unjustifiably violates the Canadian Charter of Rights and Freedoms.

COVID-19 and the Exercise of Legislative Power by the Executive

By Shaun Fluker

On April 22, 2020

In Constitutional, COVID-19, Health Law

By: Shaun Fluker

PDF Version: COVID-19 and the Exercise of Legislative Power by the Executive

Legislation Commented On: Regulations Act, RSA 2000, c R-14 and Public Health Orders issued in relation to COVID-19

The COVID-19 pandemic has become a rare opportunity to study the widespread exercise of emergency lawmaking powers in Canada. Governments have enacted legal rules on matters such as social distancing, quarantine, economic controls, regulatory relief, employment standards, landlord-tenant, access to justice, and health care protocols. Commentators have warned that we must remain vigilant in ensuring these emergency measures do not offend the rule of law, and this message is likely to intensify as more emergency measures are used to either further the current shutdown or control our emergence from it; for example, in relation to surveillance and privacy rights as Joel Reardon, Emily Laidlaw, and Greg Hagen recently noted here. These substantive concerns are amplified by the fact that most COVID-19 emergency powers are being exercised by the executive branch of government and its delegates, using legislative power delegated to them in public health or emergency statutes. Because it is unlikely that legislatures envisioned such an extensive use of these powers for a prolonged time period, shortcomings and gaps in the lawmaking process are becoming apparent. Hallmarks such as organization, clarity, predictability, consistency, transparency, and justification – which, in normal times, provide the executive with much of its legitimacy to govern – have been impaired or are missing altogether in the exercise of legal power to contain COVID-19. This post examines how Alberta ministers and the Chief Medical Officer of Health have been exercising emergency powers so far during the pandemic, and makes some pointed observations on the hallmarks of legitimate governance and the role of the Regulations Act, RSA 2000, c R-14, in this regard.

Domestic Violence and Legal Issues Related to COVID-19, Part II

By Jennifer Koshan

On April 21, 2020

In Constitutional, COVID-19, Human Rights

By: Jennifer Koshan

PDF Version: Domestic Violence and Legal Issues Related to COVID-19, Part II

In my last post, I discussed domestic violence dimensions of the responses of the government and judiciary in Alberta to the COVID-19 pandemic, focusing primarily on provincial law and policy. This follow-up post reviews additional provincial laws and policies (including those related to protection orders and employment/occupational health and safety), federal laws (including those governing protection orders on First Nations reserves, immigration, and employment), and the overarching human rights context for responses to domestic violence and COVID-19 by governments and private actors such as employers.

Alberta Court of Appeal Restores Access to Habeas Corpus

By Jonnette Watson Hamilton

On April 7, 2020

In Constitutional, Criminal

By: Jonnette Watson Hamilton

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.

Category: Constitutional Page 12 of 72

Sex Offender Registries and Persons Found Not Criminally Responsible: Exit Ramps and Equality

Alberta Court Grants Injunctive Relief in a Constitutional Case

COVID-19 and the Exercise of Legislative Power by the Executive

Domestic Violence and Legal Issues Related to COVID-19, Part II

Alberta Court of Appeal Restores Access to Habeas Corpus