Category Archives: Constitutional

No Discrimination Against Long-Term Care Residents in Elder Advocates of Alberta Case

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: No Discrimination Against Long-Term Care Residents in Elder Advocates of Alberta Case

Case Commented On: Elder Advocates of Alberta Society v Alberta, 2018 ABQB 37 (CanLII)

Our colleague Lorian Hardcastle recently posted a comment on the Elder Advocates of Alberta Society case, where a class of long-term care residents brought a claim against the Alberta government challenging its ability to charge accommodation fees in their facilities. As she noted, the plaintiffs were unsuccessful in their claims of unjust enrichment, negligence, and contract. The plaintiffs also argued that the accommodation charges were discriminatory on the basis of age and mental / physical disability, contrary to section 15 of the Canadian Charter of Rights and Freedoms. Justice June Ross also dismissed this argument, and her reasons on the section 15 claim will be the focus of this post. Continue reading →

Alberta Court of Queen’s Bench Introduces the Accelerated Habeas Corpus Review Procedure

By: Amy Matychuk

PDF Version: Alberta Court of Queen’s Bench Introduces the Accelerated Habeas Corpus Review Procedure

Case Commented On: Latham v Her Majesty the Queen, 2018 ABQB 69 (CanLII)

In an attempt to address the proliferation of habeas corpus applications from inmates in Alberta institutions, the Alberta Court of Queen’s Bench (Edmonton) has introduced a new procedure to prevent vexatious habeas corpus applications from wasting court resources. Habeas corpus is a constitutional remedy for an unlawful loss of liberty (see s 10(c) of the Charter, which provides for the right “to have the validity of … detention determined by way of habeas corpus and to be released if the detention is not lawful.”) Since 2014, Alberta inmates have attempted to use habeas corpus to air an increasing number of grievances about their conditions of detention. Because the only remedy available on a habeas corpus application is release from detention, it applies narrowly to deprivations of liberty within an institution (such as transfers from lower to higher security) and is useless as a means of addressing complaints about prison conditions. Nevertheless, Alberta inmates appear either to have misunderstood this limitation or to have ignored it, and the Court of Queen’s Bench has introduced a procedure designed to keep the most senseless of these applications from reaching the hearing stage and thus wasting judicial time.

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TMX v Burnaby: When Do Delays by a Municipal (or Provincial) Permitting Authority Trigger Paramountcy and Interjurisdictional Immunity?

By: Nigel Bankes and Martin Olszynski

PDF Version: TMX v Burnaby: When Do Delays by a Municipal (or Provincial) Permitting Authority Trigger Paramountcy and Interjurisdictional Immunity?

Decision Commented On: National Energy Board, Reasons for Decision (18 January 2018) in support of Order MO-057-2017 (6 December 2017) re Trans Mountain Expansion Project

The National Energy Board (NEB) has now issued its reasons for decision for an Order that it issued in December 2017 allowing Trans Mountain to proceed with certain activities associated with the Trans Mountain Expansion Project (TMX) without having first complied with bylaw requirements of the City of Burnaby. Continue reading →

R v EJB: Another Unconstitutional Mandatory Minimum Sentence

By: Daphne Wang

PDF Version: R v EJB: Another Unconstitutional Mandatory Minimum Sentence

Case Commented On: R v EJB, 2017 ABQB 726 (CanLII)

In a previous post, Professor Erin Sheley commented that R v Nur, 2015 SCC 15 (CanLII), may have started a “widespread dismantling of the Criminal Code’s policy of gun-related mandatory minimums.” Since Nur, constitutional challenges to mandatory minimums have reached beyond gun-related crimes. The Supreme Court of Canada in R v Lloyd, 2016 SCC 13 (CanLII), held the one-year mandatory minimum for drug trafficking under s 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act, SC 1996 c 19, to be unconstitutional (at para 56). By doing so, the SCC left other offences with mandatory minimums vulnerable to constitutional challenge under s 12 of the Charter. Following Lloyd, the recent Court of Queen’s Bench decision R v EJB found the one-year mandatory minimum for sexual exploitation under s 153(1.1)(a) of the Criminal Code, RSC 1985, c C-46, to be of no force or effect (at para 90). Continue reading →

Yet Another Development in the Saga of Random Drug and Alcohol Testing at Suncor

By: Linda McKay-Panos

PDF Version: Yet Another Development in the Saga of Random Drug and Alcohol Testing at Suncor

Case Commented On: Unifor, Local 707A v Suncor Energy Inc, 2017 ABQB 752 (CanLII)

Recently, the Alberta Court of Queen’s Bench (per Justice R. Paul Belzil) granted Unifor, Local 707A (the Union) an interim injunction prohibiting Suncor Energy Inc (Suncor) from implementing its random drug and alcohol testing policy pending either a successful application for leave to appeal to the Supreme Court of Canada or, failing that, the parties holding a fresh arbitration hearing in early 2018. Continue reading →