Category Archives: Constitutional

Judges, Parliament, Brexit and Constitutional Change: Echoes of Stockdale v Hansard (1839)

PDF Version: Judges, Parliament, Brexit and Constitutional Change: Echoes of Stockade v Hansard (1839)

Matter Commented On: R (on the application of Miller) v The Prime Minister; Cherry et al vAdvocate General for Scotland, [2019] UKSC 41, available here: https://www.supremecourt.uk/cases/docs/uksc-2019-0192-judgment.pdf.

In making its recent decision to nullify Prime Minister Boris Johnson’s advice to the Queen to prorogue Parliament, the Supreme Court of the United Kingdom waded into deep constitutional water, raising the question of constitutional precedent and arguments about the propriety of judicial intervention in “political” matters. This comment describes the Miller decision and considers it against the backdrop of another huge constitutional controversy that began to unfold in London in 1838.

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Discrimination Justified in Elder Advocates of Alberta Society Class Action

By: Jonnette Watson Hamilton and Jennifer Koshan

PDF Version: Discrimination Justified in Elder Advocates of Alberta Society Class Action

Case Commented On: Elder Advocates of Alberta Society v Alberta, 2019 ABCA 342 (Can LII)

The Alberta Court of Appeal has dismissed the appeal of the Elder Advocates of Alberta Society from the January 2018 judgment of Justice June Ross, which had dismissed their class-action challenging accommodation fees charged to long-term care residents by the province. Accommodation fees cover expenses such as meals, housekeeping, and building maintenance, and currently range from $55.90 per day for a standard shared room to $68.00 per day for a private room. The essence of the class action claim was that long-term care residents are subsidizing their health care costs, something no other users of the Alberta health care system are required to do. Continue reading →

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 →