Category Archives: Constitutional

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 →

Material and Cultural Causes of Delay

By: Drew Yewchuk

PDF Version: Material and Cultural Causes of Delay

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 →