Category Archives: Constitutional

Time for Buy-Back: Supreme Court Set to Hear Important Adverse Effects Discrimination Case

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: Time for Buy Back: Supreme Court Set to Hear Important Adverse Effects Discrimination Case

Case Commented On: Fraser v Canada (Attorney General), 2018 FCA 223 (CanLII), leave to appeal granted, 2019 CanLII 42345 (SCC)

In December, the Supreme Court of Canada will hear an appeal in an equality rights challenge under section 15(1) of the Canadian Charter of Rights and Freedoms. Several female members of the Royal Canadian Mounted Police argue that their employer’s pension rules – which denied pension buy-back rights to those who were job-sharing – discriminated against them based on their sex and family or parental status. The case is a classic example of adverse effects discrimination, involving a claim that a law or policy that is neutral on its face has an adverse impact on the basis of grounds protected under section 15(1). In this post we will review the Federal Court and Federal Court of Appeal decisions rejecting the women’s claim to set the stage for the upcoming appeal at the Supreme Court. Continue reading →

Context is Everything When it Comes to Charter Application to Universities

By: Linda McKay-Panos

PDF Version: Context is Everything When it Comes to Charter Application to Universities

Case Commented On: Yashcheshen v University of Saskatchewan, 2019 SKCA 67 (Can LII)

The issue of whether a university is subject to the application of the Charter has arisen in a number of cases, some of which appear to conflict. See: BCCA Unfortunately Chooses Not to Follow Alberta’s Lead on the Issue of Whether the Charter Applies To Universities.

In Yashcheshen, the issue of Charter application occurred when Yashcheshen sought admission to the College of Law at the University of Saskatchewan without submitting a Law School Admission Test (LSAT) score, because she had a disability (Crohn’s Disease) that she believed would prevent her from having a fair opportunity to write the LSAT (at para 1). When Yashcheshen submitted her application without an LSAT score in February 2014, it was not accepted. The College suggested that, because it required everyone to submit an LSAT score and it did not administer the test, Yashcheshen should apply to the Law School Admission Council for an accommodation with respect to the LSAT (at para 7). Continue reading →

R v Shoemaker: Alberta Court of Appeal Tells Corrections Canada to Follow Its Own Rules

By: Amy Matychuk

PDF Version: R v Shoemaker: Alberta Court of Appeal Tells Corrections Canada to Follow Its Own Rules

Case Commented On: R v Shoemaker, 2019 ABCA 266 (Can LII)

In R v Shoemaker, Justices Marina Paperny, Frans Slatter, and Kevin Feehan for the Alberta Court of Appeal (ABCA) overturned Alberta Court of Queen’s Bench (ABQB) Justice K. D. Yamauchi’s decision dismissing Mr Shoemaker’s application for habeas corpus. Mr Shoemaker applied for habeas corpus after he was involuntarily transferred from the medium and minimum security Drumheller Institution to the maximum security Edmonton Institution. The ABCA held that Mr Shoemaker did not have a reasonable opportunity to prepare and provide representations responding to the reasons for his transfer or to seek the assistance of legal counsel. He was denied these opportunities because Correctional Service Canada (CSC) did not follow the procedural safeguards for inmates as set out in the Corrections and Conditional Release Act, SC 1992, c 20 (CCRA), the Corrections and Conditional Release Regulations, SOR/92-620 (CCRR), and CSC’s internal directives. This post is part of my ongoing series on habeas corpus litigation in Alberta. For more background, see my previous posts from May 2017, July 2017, and February 2018. Continue reading →

Open Access: A Request to the Alberta Court of Appeal

By: Admin

PDF Version: Open Access: A Request to the Alberta Court of Appeal

Matter Commented On: Reference re Greenhouse Gas Pollution Pricing Act (Alberta)

There is considerable public interest in questions as to the validity of the federal Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, s 186 (GGPPA) and the References that have been made to different provincial Courts of Appeal. We now have judgments rendered by both the Saskatchewan and Ontario Courts of Appeal upholding the federal government’s GHG pricing regime: Reference re Greenhouse Gas Pollution Pricing Act, 2019 SKCA 40 (CanLII) and Reference re Greenhouse Gas Pollution Pricing Act, 2019 ONCA 544 (CanLII). Appeals are pending in each of these cases. Continue reading →

The Bill 12 “Turn off the Taps” Litigation: Justice Hall Orders a Stay in BC’s Action

By: Nigel Bankes

PDF Version: The Bill 12 “Turn off the Taps” Litigation: Justice Hall Orders a Stay in BC’s Action

Case Commented On: British Columbia (Attorney General) v Alberta (Attorney General), 2019 ABQB 550

This decision concerns Preserving Canada’s Economic Prosperity Act, SA 2018, c P-21.5 also known as the “Turn Off the Taps” legislation. I commented on Bill 12 here and commented on the decision of the Kenney Government to bring this legislation into force here. The decision to bring the legislation into force prompted the Attorney General of British Columbia (AGBC) to renew its application to the Alberta Court of Queen’s Bench to have the legislation declared unconstitutional. The Attorney General Alberta (AGAB) responded by bringing an application to strike BC’s application on the basis that the AGBC had no standing to sue for a declaration as to the constitutional invalidity of Alberta legislation. This is Justice Robert Hall’s decision on that application. Continue reading →