Category: Constitutional Page 17 of 71

The Adverse Impact of Mandatory Victim Surcharges and the Continuing Disappearance of Section 15 Equality Rights

Case Commented On: R v Boudreault, 2018 SCC 58 (CanLII)

It was just over one year ago that our former colleague Sheilah Martin was appointed to the Supreme Court of Canada (see our tribute on ABlawg). Justice Martin has now written her first decision for the Court, R v Boudreault, 2018 SCC 58 (CanLII) which was released in December 2018. The case concerns the constitutionality of victim surcharges, which are mandatory for persons who are discharged, plead guilty, or are found guilty of an offence under the Criminal Code, RSC 1985, c C-46, or the Controlled Drugs and Substances Act, SC 1996, c 19. Writing for a majority of the Court, Justice Martin’s judgment holds that these surcharges violate section 12 of the Canadian Charter of Rights and Freedoms, which protects against cruel and unusual punishment.

Our interest in this post is in exploring how equality infuses Justice Martin’s decision. Equality rights were not directly at issue in the case; rather, the constitutional challenge focused on section 12 as well as the guarantee of life, liberty and security of the person in section 7 of the Charter. Equality arguments were made by only two interveners (see here and here) and equality is mentioned explicitly only once in Justice Martin’s ruling (at para 28). Nevertheless, the discriminatory impact of the surcharge animates her entire judgment.

This leads us to reiterate a point we have made in previous writing (see e.g. here): section 15 of the Charter, the equality guarantee, is often overlooked in favour of other rights and freedoms as a result of the courts’ difficulties with and inconsistent treatment of equality rights. This has led to the analysis of other Charter rights – including section 7 and section 12 – that overlaps with equality, which muddies the content of these other rights. In turn, the lack of a robust equality jurisprudence perpetuates the tendency of parties and courts to avoid section 15. This is not necessarily a problem when other rights can be successfully invoked, as in this case, but it can be a problem when a successful claim depends on equality rights.

City of Toronto v Ontario and Fixing the Problem with Section 3 of the Charter

By Colin Feasby

On September 28, 2018

In Constitutional

By: Colin Feasby

PDF Version: City of Toronto v Ontario and Fixing the Problem with Section 3 of the Charter

Case Commented On: Toronto (City) v Ontario (Attorney General), 2018 ONCA 761

Introduction

Ontario Premier Doug Ford’s recent restructuring of Toronto City Council in the midst of an election and the ensuing court battle shone a light on a significant gap in the constitutional protection of democratic rights in Canada. Elections for municipal government – arguably the most important level of government in the daily lives of Canadians – need not be conducted in accordance with the fundamental democratic norms found by the Supreme Court of Canada to reside within section 3 of the Charter. The Ontario Court of Appeal in Toronto (City) v Ontario (Attorney General), 2018 ONCA 761 following numerous appellate authorities, succinctly stated the law: “Section 3 does not apply to municipal elections and has no bearing on the issues raised in this case” [citations omitted] (City of Toronto, at para. 12).

This blog post is predicated on what I believe are two uncontroversial normative claims. First, the Supreme Court of Canada’s Charter section 3 jurisprudence, though not without its critics, has made federal and provincial elections more fair and democratic. The corollary of this normative claim is that democratic processes outside the aegis of section 3 are vulnerable to those who would impose unfair or undemocratic rules. Second, democratic processes that are not protected by section 3 of the Charter – referenda, band council elections, municipal elections, school board elections – are important to Canadians; perhaps more important in some respects than provincial and federal elections. This blog post contends that the lack of constitutional protection for important democratic processes is an unnecessary defect in our constitutional arrangement and proposes a way that the Supreme Court of Canada can remedy this defect.

R v EJB: Reasonable Hypotheticals and Permitted Sentencing Factors

By Daphne Wang

On September 14, 2018

In Constitutional, Human Rights

By: Daphne Wang

PDF Version: R v EJB:Reasonable Hypotheticals and Permitted Sentencing Factors

Case Commented On: R v EJB, 2018 ABCA 239 (CanLII)

R v EJB, 2018 ABCA 239 is an important case regarding the sentencing of sexual exploitation offences pursuant to section 153(1.1)(a) of the Criminal Code, RSC 1985, c C-46. The decision overturns the trial decision. In doing so, the Court addresses mitigating and aggravating factors judges should and should not consider during sentencing for sexual offences against a minor. The Court also more clearly defines how to assess constitutional challenges to mandatory minimums pursuant to section 12 of the Charter. In making these clarifications, the Court of Appeal highlights important considerations that cannot be overlooked when sentencing offenders under section 153(1.1)(a).

Tapped Out: Alberta Court Holds Interprovincial Beer Mark-ups Unconstitutional

By Scott Carrière

On July 18, 2018

In Constitutional

By: Scott Carrière

PDF Version: Tapped Out: Alberta Court Holds Interprovincial Beer Mark-ups Unconstitutional

Case Commented On: Steam Whistle Brewing Inc v Alberta Gaming and Liquor Commission, 2018 ABQB 476 (CanLII)

On June 19, 2018, the Alberta Court of Queen’s Bench (the Court) issued its decision in Steam Whistle Brewing Inc v Alberta Gaming and Liquor Commission (Steam Whistle), holding that two changes to mark-up rates on craft beer produced outside Alberta were ultra vires s 121 of the Constitution Act, 1867, 30 & 31 Vict, c 3 (the Constitution). The Alberta Gaming and Liquor Commission (AGLC) applies these mark-ups to retailers based on different classes of liquors. Prior to 2015, the same mark-up was applied to all craft beer produced anywhere in Canada. However, by 2016, the mark-up regime had differential rates applied to different regions, along with a grant for Alberta brewers to offset to the mark-up they would otherwise pay.

In assessing their pith and substance, Justice Gillian Marriot held the AGLC’s mark-up regime to be a valid scheme of proprietary charges under the Gaming and Liquor Act, RSA 2000, c G-1 (GLA). Ultimately, however, she found that the intention behind the changes to the mark-up regime was to advantage Alberta craft brewers, constituting a barrier to interprovincial trade under the analytical framework for s 121 established earlier this year in R v Comeau, 2018 SCC 15 (CanLII) (Comeau).

In this post, I will review the Court’s decision and comment on its significance, both with respect to the mark-ups’ classification, and in cementing recent s 121 jurisprudence.

Protecting the Public Interest: Law Society Decision-Making After Trinity Western University

By Alice Woolley

On July 6, 2018

In Constitutional, Human Rights, Supreme Court of Canada

By: Alice Woolley and Amy Salyzyn

PDF Version: Protecting the Public Interest: Law Society Decision-Making After Trinity Western University

Cases Commented On: Law Society of British Columbia v Trinity Western University, 2018 SCC 32 (CanLII); Trinity Western University v Law Society of Upper Canada, 2018 SCC 33 (CanLII).

Introduction

Canadian law societies strive to regulate lawyers and legal services in the public interest. Courts emphasize the law societies’ broad discretion to determine what the public interest requires in governing the profession and, accordingly, defer to the law societies’ exercise of that discretion (See Malcolm Mercer’s analysis of this on slaw.ca).

Courts defer to law societies because they accept the underlying rationale for law societies’ power and responsibility. Courts recognize the importance of the independence of the bar, and view self-regulation (of lawyers by lawyers) as an appropriate mechanism for ensuring that independence (This view is problematic but widely accepted – see, e.g., Law Society of British Columbia v Trinity Western University 2018 SCC 32 (“LSBC v TWU”) at para. 37). Courts view serving the public interest as something law societies must pursue in exchange for the privilege of self-regulation (LSBC v TWU at para 32) but simultaneously identify self-regulation as likely to ensure protection of the public interest given law societies’ “particular expertise and sensitivity to the conditions of practice” (LSBC v TWU at para. 37). Briefly (albeit circularly), courts assert that they defer to law societies because independence of the bar requires self-regulation; self-regulation requires law societies to act in the public interest; and self-regulation effectively protects the public interest because of law societies’ institutional expertise.

This blog post raises questions about whether current law society policy-making structures can effectively consider and advance the public interest. In particular, and in light of the saga of Canadian law societies’ consideration of TWU’s attempt to open a law school, it considers whether law societies can fulfill their mandate to regulate in the public interest when benchers make policy decisions in hard cases.