Category Archives: Constitutional

R v Cody: The Supreme Court Stands Their Ground on Unreasonable Delay

By: Drew Yewchuk

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Case Commented On: R v Cody, 2017 SCC 31 (CanLII)

Just a little under a year after the Supreme Court released R v Jordan, 2016 SCC 27 (CanLII) and established a new framework for the Charter section 11(b) right to a criminal trial within a reasonable time, the Court has released a new decision on the issue. (For my earlier post on Jordan, see here, and for a post discussing interpretation of Jordan by some Alberta courts see here.) R v Cody, 2017 SCC 31 (CanLII) clarifies the Jordan framework, but more importantly it affirms the Supreme Court’s commitment to ending the “culture of complacency towards delay in the criminal justice system” (at para 1) despite the pressure Jordan has placed on Crown prosecutors. Continue reading →

Interim Measures in a Classic Church Property Dispute

By: Jonnette Watson Hamilton

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Case Commented On: Bruderheim Community Church v Moravian Church in America (Canadian District), 2017 ABQB 355 (CanLII)

In this brief judgment, Justice Brian Burrows granted an interim injunction restraining the Board of Elders of the Moravian Church in America from interfering with the use of church land and buildings located in Bruderheim, Alberta by the local congregation, formerly known as the Bruderheim Moravian Church and now known as the Bruderheim Community Church. The application of the standard three-part test for an interim injunction is of interest for the “serious issue to be tried” that it discloses, as well as for the understanding of “irreparable harm” applied in the situation of a local congregation being evicted from its place of worship. In addition, this particular dispute appears to have all the elements of a classic church property dispute brought to the civil courts as a last resort as a result of an irreparable rift within a church over a matter of doctrine. The reason for the Bruderheim congregation’s disassociation was a decision by the Moravian Church, Northern Province that individuals were eligible to be clergy regardless of their sexual orientation or marital status.  Continue reading →

Charter Violations Inside Prisons: Irremediable in the Name of Protecting the Public?

By: Amy Matychuk

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Case Commented On: R v Blanchard, 2017 ABQB 369 (CanLII)

The applicant in this case, Lance David Blanchard, is a nearly 60-year-old man who committed his first criminal offence (rape) in 1975. His other previous criminal convictions include multiple charges of unlawful confinement, assault (including with a weapon), and manslaughter. Most recently, he was convicted of aggravated assault, kidnapping, unlawful confinement, aggravated sexual assault, possession of a weapon, threatening to cause death or bodily harm, and breach of a recognizance. He has been designated a High Profile offender, and has been incarcerated at the Edmonton Remand Centre (ERC) since June 2014, in administrative segregation and protective custody. His most recent trial received attention from the media and the legal community because of the incarceration of the sexual assault complainant, “Angela Cardinal” (critiqued on ABlawg by Professor Alice Woolley here and here). Having been convicted in that trial, Mr. Blanchard then sought a stay or a sentence reduction because of the severely adverse conditions he experienced while awaiting trial at ERC. Continue reading →

The Applicability of Charter Protection to Traffic Safety Laws

By: Nicholas Konstantinov

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Case Commented On: Sahaluk v Alberta (Transportation Safety Board), 2017 ABCA 153 (CanLII)

In Sahaluk v Alberta (Transportation Safety Board), Mr. Justice Slatter, writing for the majority (Madam Justice Bielby concurring; Madam Justice Paperny dissenting), examined the constitutionality of Alberta’s recent amendment to the Traffic Safety Act, RSA 2000, c. T-6 (the ‘Act’), specifically section 88.1. The amendment eclipsed previous provincial administrative licence suspension regimes for impaired driving in its manner and degree of punishment, raising inquiries into whether the province overstepped its legislative power and whether it complied with the Canadian Charter of Rights and Freedoms. Using evidence pertaining to the objectives and effects of the amended licence suspension scheme, Justice Slatter allowed the appeal of the chamber’s judge’s decision upholding the law, and declared that while section 88.1 was valid on federalism grounds, it was in violation of sections 7 and 11 of the Charter. Continue reading →

Can Federal Legislative Jurisdiction Support a Broad, Sustainability-Based Impact Assessment?

By: Martin Olszynski

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Report Commented On: Expert Panel on the Review of Federal Environmental Assessment Processes, Building Common Ground: A New Vision for Impact Assessment in Canada

This is the fourth in a series of ABlawg posts to consider the report of the Expert Panel on the Review of Federal Environmental Assessment Processes. Professor Arlene Kwasniak wrote the first post, wherein she summarized the main contours of the Expert Panel’s recommendations; Professor Shaun Fluker and Drew Yewchuk (JD 2017) tackled the ever-present challenges of discretion, transparency and accountability; and Professor Sharon Mascher recently discussed the Expert Panel’s recommendations with respect to triggering. In this post, I tackle an area of lingering doubt in the Panel’s report, namely the federal government’s jurisdiction to make project-related decisions following a broad, sustainability-based impact assessment. In my view and as further set out below, this doubt is misplaced. My analysis is admittedly somewhat novel but doesn’t break entirely new ground – a similar analysis was put forward in the commentary following the Supreme Court of Canada’s landmark decision in Friends of the Oldman River Society v. Canada (Minister of Transport) 1992 CanLII 110 (SCC). Fundamental to my approach is the distinction between legislating with respect to a subject on the one hand, and subsequent decision-making pursuant to such legislation on the other. Continue reading →