Category Archives: Constitutional

R v EJB: Reasonable Hypotheticals and Permitted Sentencing Factors

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).

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

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.

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

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.

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The Supreme Court of Canada’s Pay Equity Decisions: A Call to Action for Alberta?

By: Jennifer Koshan

PDF Version: The Supreme Court of Canada’s Pay Equity Decisions: A Call to Action for Alberta?

Case Commented On: Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 (CanLII); Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18 (CanLII)

Alberta does not have strong pay equity legislation. The Alberta Human Rights Act, RSA 2000, c A-25.5, only guarantees equal pay to employees of both sexes for “the same or substantially similar work” for the same employer (s 6). Most other Canadian jurisdictions require employers to pay male and female employees equal pay for work of equal value in either human rights legislation (see e.g. Canadian Human Rights Act, RSC 1985, c H-6, s 11; Quebec’s Charter of Human Rights and Freedoms, CQLR, c C-12, s 19) and / or in stand alone pay equity legislation (see e.g. Quebec’s Pay Equity Act, RSQ 1996, c 43, which applies to public and private employers, and Prince Edward Island’s Pay Equity Act, RSPEI 1988, c P-2, which applies to the public sector), or they have pay equity negotiating frameworks for some public sector employees (see here). Not unexpectedly, a 2016 Parkland Institute report written by Kathleen Lahey found that Alberta has the largest gender income gap in Canada at 41%, a gap which is often larger for women who are racialized (including Indigenous women) or have disabilities (at 21). The report recommended that Alberta design “robust” pay equity legislation “capable of significantly improving the economic status of women in Alberta” (at 2, 3).

Two recent Supreme Court of Canada decisions shed some light on whether Alberta is constitutionally obliged to enact more robust pay equity legislation (see Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 (CanLII) (Alliance du personnel professionnel); Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18 (CanLII) (Centrale des syndicats)). This post will explore the implications of these decisions for the government’s pay equity obligations in Alberta. A future post with Jonnette Watson Hamilton will discuss in more detail the Court’s approach to equality rights under s 15 of the Canadian Charter of Rights and Freedoms in these cases.

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Supreme Court Sides with Law Societies in Trinity Western University Litigation

This morning the Supreme Court of Canada released its decisions in Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 (CanLII) and Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33 (CanLII). A majority of the Court upheld the decisions of the Law Societies of British Columbia and Upper Canada to deny accreditation to or approval of Trinity Western University (TWU) law school. For readers wanting more context for the Supreme Court decisions, please see previous ABlawg posts on TWU here, and watch for analysis of the decisions on ABlawg in the coming days.