Category Archives: Constitutional

Material and Cultural Causes of Delay

By: Drew Yewchuk

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Case Commented On: R v King, 2019 ABQB 467

This is the seventh instalment in my long-running series of blog posts covering Alberta decisions dealing with the fallout of R v Jordan, 2016 SCC 27, released almost three years ago. This post starts with a discussion of the recent R v King, 2019 ABQB 467, which covers one of the two live issues about Jordan that will be going up before the SCC: whether or not the time between when an application or case is heard and when it is decided (often called ‘judicial delay’; I will refer to it as ‘judicial decision-making time’) is excluded from the delay calculation. This issue will be before the Supreme Court as part of R v KGK, 2019 MBCA 9, on September 25, 2019. (The second issue is how the timelines apply to minors, an issue in the appeal of R v KJM, 2018 ABCA 278, which the SCC heard in February 2019). The second part of the blog post discusses some longer-term impacts of Jordan, and some of the limitations of the decision. Continue reading →

Taking Youth Seriously: Reconsidering the Constitutionality of the Voting Age

By: Colin Feasby

PDF Version: Taking Youth Seriously: Reconsidering the Constitutionality of the Voting Age

Case Commented On: Frank v Canada (Attorney General), 2019 SCC 1

[N]o one is born a good citizen; no nation is born a democracy. Rather, both are processes that continue to evolve over a lifetime. Young people must be included from birth. A society that cuts itself off from its youth severs its lifeline… (Kofi Annan, 1998)

Introduction

Earlier this year the Supreme Court of Canada issued its most important voting rights case in many years, Frank v Canada (Attorney General), 2019 SCC 1. Frank secured the right to vote for expatriate Canadians – a meaningful achievement – but the case is more significant for its reasoning and implications for the future of voting rights than it is for its result. The majority in Frank made it clear that the right to vote is qualified only by citizenship and that any limits on the right to vote must be justified under s 1 of the Charter. Frank has laid the foundation for a challenge to the last significant restriction on the right to vote, age. A challenge to the voting age – even just to lower it to 16 – promises to have a profound and beneficial impact on Canadian politics and political discourse. Continue reading →

Setting the Record Straight on Federal and Provincial Jurisdiction Over the Environmental Assessment of Resource Projects in the Provinces

By: Martin Olszynski and Nigel Bankes

PDF Version: Setting the Record Straight on Federal and Provincial Jurisdiction Over the Environmental Assessment of Resource Projects in the Provinces

Matter Commented On:Bill C-69: An Act to enact the Impact Assessment Act and the Canadian Energy Regulator Act, to ament the Navigation Protection Act and to make consequential amendments to other Acts

Alberta’s new premier has recently threatened to sue the federal government over Bill C-69, the Liberal government’s attempt to restore some credibility to Canada’s environmental assessment regime. More specifically, Premier Kenney has recently been asserting that section 92A of the Constitution Act, 1982, which gives the provinces jurisdiction over the development of non-renewable natural resources, precludes the federal government from assessing what the Premier describes as “provincial projects”: “[BillC-69] gives a new federal agency the power to regulate provincial projects, such as in situ oil sands developments and petrochemical refineries, which are entirely within a province’s borders and already subject to provincial regulation. It disregards a landmark Supreme Court ruling on jurisdiction and the balance between federal and provincial powers spelled out in the Constitution — including section 92A in which provinces have exclusive authority over non-renewable resource projects.” In making these comments, the Premier contradicts almost three decades of settled jurisprudence with respect to the federal and provincial division of powers over the environment generally, and federal jurisdiction to conduct environmental assessments specifically. Continue reading →

A Look Down the Road Taken by the Supreme Court of Canada in R v Mills

By: Lisa Silver

PDF Version: A Look Down the Road Taken by the Supreme Court of Canada in R v Mills

Case Commented On: R v Mills, 2019 SCC 22

Perhaps we, in the legal world, should not have been surprised by R v Mills, 2019 SCC 22, the most recent decision on privacy and the application of that concept in the s. 8 Charter regime. When it comes to Supreme Court decisions, we tend to dispense with the facts in favour of the principles, but Mills reminds us, facts do still matter in our highest court. Factually, pragmatically, and contextually, we understand that the investigative technique used in Mills simply needs to work. But in the name of principle, precedence, and visionary reach, Mills leaves us wondering. To throw even more dust into the eyes, overlaid on the decision is confusion. The seven-panel decision is fractured, leaving us to count on our fingers who agrees with who to manage some sort of majority decision. In the end, the numeric tally does not really matter. This is a new kind of Supreme Court where everyone agrees in the outcome but how they get there leads us onto the road “less travelled” or to update the metaphor, leads us through the web of internet connections less surfed. Or does it? Mills may be surprising but not unpredictable. It may also be just another decision exploring the reach of privacy in our everyday world and therefore part of the narrative, not the last word. Continue reading →

Turning a Blind Eye? The Scope of the Charter Right to a Representative Jury

By: Amy Matychuk

PDF Version: Turning a Blind Eye? The Scope of the Charter Right to a Representative Jury

Case Commented On: R v Newborn, 2019 ABCA 123 (CanLII)

In R v Newborn, Justices Frans Slatter, Ritu Khullar, and Barbara Lea Veldhuis of the Alberta Court of Appeal (ABCA) dismissed an argument from the appellant (the accused) that “the array from which his jury was selected was constitutionally flawed because it disproportionately excluded [A]boriginal citizens” (Newborn ABCA, at para 1). It also dismissed his argument that inadmissible expert evidence was allowed at the trial. However, this post will focus on the right to a representative jury as defined in the Supreme Court’s decision in R v Kokopenace, 2015 SCC 28 (CanLII), R v Newborn’s application of Kokopenace, and the appropriate scope of the state’s obligations under Charter s 11. Continue reading →