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Category: Constitutional Page 13 of 73

Supreme Court of Canada Finally Addresses Racial Profiling by Police

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On June 26, 2020

In Constitutional, Criminal, Police, Supreme Court of Canada

By: Meryl Friedland

PDF Version: Supreme Court of Canada Finally Addresses Racial Profiling by Police

Cases Commented On: R v Le, 2019 SCC 34 (CanLII); R v Ahmad, 2020 SCC 11 (CanLII)

Nine minutes. This is the length of time that a police officer pressed a knee to the neck of George Floyd in the United States, while he lay on the ground immobilized, pleading, stating he couldn’t breathe. Nine minutes is a shockingly long time for Constable Chauvin to have exerted deadly force on a human being whom he had already rendered vulnerable. He could only do this without interference because of the power provided to him by the state. He could only do this because violent race-based state conduct is nothing new – far from it.

Our current Canadian protests expose the local experience of abusive and racist police tactics, both systemic and overt, against Black, Indigenous, and other racialized Canadians. These protests and the action urged by them have the potential to mobilize and enact change. The criminal justice system is reactionary, but it can still send a message denouncing unlawful conduct with the aim of preventing it from recurring. Recently, the Supreme Court of Canada has given us new tools in this fight, by addressing racial profiling twice in the past year in R v Le, 2019 SCC 34 (CanLII) and R v Ahmad, 2020 SCC 11 (CanLII). It has taken an exceptionally long time for our highest court to give us these tools. Although these judgments are a start, unquestionably there is still much work to be done, both in and out of the courts.

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The Fair Deal Panel Report – and the British North America Act?

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On June 25, 2020

In Constitutional

By: Nigel Bankes

 PDF Version: The Fair Deal Panel Report – and the British North America Act?

Report Commented On: Fair Deal Panel, Report to Government, May 2020

The Kenney government has now released the Report of the Fair Deal Panel. It is not a good read. Many sections are poorly written and poorly reasoned. But since ABlawg is a blog on legal developments, let’s start with the title to this post and the decision of the authors to refer to Canada’s founding constitutional document as the British North America Act (BNA Act) of 1867.

While the authors concede (at 13) that the BNA Act is also known as the Constitution Act, 1867, they consistently refer to the BNA Act throughout the report. This is simply wrong, and it has been wrong since 1982 when Canada adopted the Constitution Act, 1982. That Act includes a Schedule entitled “Modernization of the Constitution” (emphasis added) which serves to rename elements of the Constitution. In particular, item 1 in the Schedule renames the BNA Act of 1867 the Constitution Act, 1867. It repeals the title to the old BNA Act.

This may seem, especially to non-lawyers, a relatively trivial point (perhaps the Panel members just made an elementary mistake, despite having two lawyers on the Panel), but perhaps there is something deeper going on. Perhaps the Panel, consciously or unconsciously, is hearkening back to the “golden” days of Empire and reaffirming the institution of the Monarchy; or perhaps the Panel is somehow questioning the legitimacy of the patriation of the Constitution and its (Pierre) Trudeau Charter? But none of that makes any sense. As the statue topplers remind us, there was nothing especially golden about the Empire, and there is one element of the 1982 constitutional package that Alberta continues to rely on heavily. That is the addition of section 92A, the resources amendment, to the Constitution Act, 1982. That amendment afforded the provinces greater powers over the regulation of oil and gas, electricity, and other natural resources.

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Bill 1: Criminalizing Protests and Encroaching on Aboriginal and Treaty Rights

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On June 17, 2020

In Aboriginal, Constitutional

By: Alexandra Heine and Kelly Twa

PDF Version: Bill 1: Criminalizing Protests and Encroaching on Aboriginal and Treaty Rights

Bill Commented On: Bill 1, the Critical Infrastructure Defence Act, 2nd Sess, 30th Leg, Alberta, 2020

This is the second part of a two-part series on Bill 1, the Critical Infrastructure Defence Act, 2nd Sess, 30th Leg, Alberta, 2020. Professors Jennifer Koshan, Lisa Silver, and Jonnette Watson Hamilton authored the first post, Protests Matter: A Charter Critique of Alberta’s Bill 1, which explores Bill 1’s lack of compliance with sections 2(b), 2(c), 2(d), 7, and 15 of the Canadian Charter of Rights and Freedoms. The first post also offers an overview of Bill 1 and importantly, it offers examples of the type of activities that appear to contravene Bill 1:

  • A vigil for Regis Korchinski-Paquet is held in Olympic Plaza—a square in downtown Calgary—in conjunction with Black Lives Matters protests across the country. The vigil spills onto Stephen Avenue Mall, where bicycles are permitted.
  • Indigenous persons and their allies hold a protest against construction of a pipeline on-site in northern Alberta.
  • Workers rally in a parking lot outside a meat packing plant to bring attention to the gendered and racialized impact of the Alberta government’s response to COVID-19.
  • Persons with disabilities and their allies protest cuts to AISH on the sidewalk adjacent to the High Level Bridge in Edmonton.
  • LGBTQ2S+ groups hold a sit-in under a flagpole on the grounds of the Alberta Legislature after the Pride flag is taken down only one day into Pride month.

As noted in the first post, these peaceful protesters could be subject to immediate arrest by the police, increasing the potential for further conflict between law enforcement and the public.

This second post examines how Bill 1 treads on the federal government’s criminal law powers under section 91(27) of The Constitution Act, 1867 and provides commentary on how the Bill threatens Aboriginal rights under section 35 of The Constitution Act, 1982.

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Protests Matter: A Charter Critique of Alberta’s Bill 1

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On June 9, 2020

In Constitutional, Human Rights

By: Jennifer Koshan, Lisa Silver, and Jonnette Watson Hamilton

 PDF Version: Protests Matter: A Charter Critique of Alberta’s Bill 1

Bill Commented On: Bill 1, the Critical Infrastructure Defence Act, 2nd Sess, 30th Leg, Alberta, 2020

The last few weeks have emphasized the crucial role of public protests. The Alberta Energy Minister’s statement about the COVID-19 pandemic being a great time to build pipelines without protestors went viral (and not in a good way), and demonstrations in the United States and Canada are stark reminders that direct and systemic racism and colonialism are present in Canadian society today. In the midst of these events, the Alberta government passed Bill 1, the Critical Infrastructure Defence Act. Bill 1 was initially tabled in February 2020 during the blockades of rail lines in support of Wet’suwet’en hereditary chiefs. Only five sections long, it contains a number of prohibitions and offences relating to activities involving “essential infrastructure.” This post reviews Bill 1’s compliance with the Canadian Charter of Rights and Freedoms, concluding that it is an unjustifiable violation of at least five different fundamental rights and freedoms. A second post will examine how Bill 1 also treads on the federal government’s criminal law powers under The Constitution Act, 1867 and Aboriginal rights under section 35 of The Constitution Act, 1982.

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

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On June 1, 2020

In Constitutional, Equality

By: Jennifer Koshan and Joe Koshan

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

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.

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