Category Archives: Constitutional

Curtailing Free Expression: A Barbaric Cultural Practice? A Critical Comment on Section 83.221 of the Criminal Code

By: Kiran Fatima, Meagan Potier, Jordan Szoo and Stephen Armstrong

PDF Version: Curtailing Free Expression: A Barbaric Cultural Practice? A Critical Comment on Section 83.221 of the Criminal Code

Provision Commented On: Section 83.221 of the Criminal Code, RSC 1985, c C-46

Bill C-51, the Anti-terrorism Act, 2015, sailed through Parliament and received Royal Assent on the 18th of June, 2015, amidst much political debate. One of the more controversial provisions was a new advocating terrorism offence contained in what is now s 83.221 of the Criminal Code, RSC 1985, c C-46. The provision criminalizes knowingly advocating the commission of terrorism offences in general and being reckless as to whether such offences are actually carried out. This post will address the political dynamics and constitutional issues with respect to the new advocating offence and make suggestions for how the Government of Canada should move forward.

Interestingly, our group was divided on the best approach to addressing the issues with respect to the provision. Meagan and Jordan were in favour of repeal, whereas Stephen and Kiran favoured amending the provision. We present the case for both repeal and amendment below and leave it to the reader to reach their own conclusions. Continue reading →

Reviewing Canada’s National Security Framework

By: Michael Nesbitt

PDF Version: Reviewing Canada’s National Security Framework

This term, the University of Calgary, Faculty of Law offered for the first time a new Criminal Law & Policy Lab: Terrorism Law & Reform. The idea behind the course was, in part, to follow along with the Government of Canada’s “National Security Framework” public consultations and consider the legal, political and social issues that arose in real-time. (For more background on the Government’s public consultations and its relationship to the course, see my earlier ABlawg post).

Students were split into three groups and asked to negotiate, amongst themselves, three different areas that they thought were of the most importance to Canada’s national security framework review. Put another way, the students chose the three topics that they agreed were most ripe for review and consideration by the government. (For an overview of the course and its broader purpose, see here).

By the end of term, students were asked to produce ABlawg posts on their findings and recommendations on these three topics. The students also submitted research memoranda to the government as part of its public consultations. Today, we release the first of these three posts, Curtailing Free Expression: A Barbaric Cultural Practice? A Critical Comment on Section 83.221 of the Criminal Code. Continue reading →

No Offence, But I Hate You: American Freedom Defence Initiative v Edmonton (City)

By: Ola Malik, Jeff Watson and Holly Wong 

PDF Version: No Offence, But I Hate You: American Freedom Defence Initiative v Edmonton (City)

Case Commented On: American Freedom Defence Initiative v Edmonton (City), 2016 ABQB 555 (Can LII )

Our Canadian courts are jealous guardians of the freedom of expression, which the Canadian Charter protects in section 2(b). The rationale for protecting freedom of expression is that society should be free to discuss and decide what is true, what is right and what is good. As with most things Canadian, we have accepted that the way in which we speak to one another should be politely regulated. Our courts have accepted that for expression to be truly valued, our public square must provide everyone with the opportunity to speak as equals, where no one is made to feel marginalized or devalued. How very Canadian, indeed! To a large extent, how we speak to one another is as important as what we say, and that, in our view, is a good thing. Defining the limits of appropriate speech isn’t just an exercise in legal abstractions, nor does it just involve lawyers. Rather, it goes to the heart of how all of us live together in a peaceful community with our neighbours and what we, together as a community, aspire to be.

Those of us who practice municipal law and who are interested in freedom of expression issues have been eagerly awaiting the case of American Freedom Defence Initiative v Edmonton (City), 2016 ABQB 555 (AFDI). Indeed, we were so intrigued by the issues this case raises that we commented on them long before trial, here, and in a companion piece titled “Controversial Advertising on City Buses – Are Municipalities Ready for What’s To Come?” (2015) 7:5 DMPL (2d) 1-6. Continue reading →

Bill S-3: A rushed response to Descheneaux

By: Elysa Hogg

PDF Version: Bill S-3: A rushed response to Descheneaux

Matters Commented On: Bill S-3 “An Act to amend the Indian Act (elimination of sex-based inequities in registration); Descheneaux c Canada (Procureur General), 2015 QCCS 3555 (CanLII)

*Note on terminology: “Indian” is used to describe a person defined as such under the Indian Act, and is not intended to carry any derogatory connotations.

In the early days after the 2015 election, Prime Minister Trudeau was honoured by the Tsuut’ina First Nation with a traditional headdress and an indigenous name which translates to “the one that keeps trying.” Trudeau and the Liberals will have to keep trying, as they made an extraordinary commitment to address First Nations issues during the campaign, and set multiple deadlines for action within the next few years. One of the first deadlines to come due is an amendment of the Indian Act, RSC, 1985 c. I-5 necessitated by a recent Quebec Superior Court ruling.

In Descheneaux c Canada (Procureur General), 2015 QCCS 3555 (CanLII) (Descheneaux) the court held that several provisions of the Indian Act surrounding who is considered a ‘Status Indian’ violated the principles of equality protected by Section 15 of the Charter of Rights and Freedoms.

After withdrawing an appeal of the decision in February 2016, the federal government has commenced a two-stage response to this ruling. Stage one is Bill S-3 “An Act to amend the Indian Act (elimination of sex-based inequities in registration)”, while stage two is a collaborative process between the government and First Nations leadership to identify and implement further reforms.

This post will briefly summarize the issues and findings in Descheneaux, and assess how these are impacted by Bill S-3. It will also examine some of the testimony given at the Senate’s Standing Committee on Aboriginal Peoples meetings held last week on these issues. Finally, it will briefly look at how Deschaneaux fits into the Liberal government’s progress on implementing the many campaign promises it made to First Nations’ people. Continue reading →

The Constitutional Limits of the Sex Offender Registry

By: Erin Sheley

PDF Version: The Constitutional Limits of the Sex Offender Registry

Case Commented On: R v Ndhlovu, 2016 ABQB 595 (CanLII)

It has become conventional wisdom in public discourse that sex offenders are uniquely likely to repeat their crimes. This assumption, combined with the heinous nature of sex offences (particularly those involving child victims), has motivated law enforcement and legislators to adopt unique measures to solve and prevent sex offences. In the United States the FBI maintains a searchable sex offender database compiled from the data of the various state jurisdictions. A user may conduct a geographic search to quickly access the name, photograph, and rap sheet of any sex offender living in their neighborhood. (Eligibility for the database varies substantially by state, both in terms of seriousness of the triggering offence (in some states public urination qualifies), duration of time on the database (in many jurisdictions it is for life), and existence of judicial discretion to require registration (in most jurisdictions it is automatic upon conviction for a triggering offence)).

Canada’s approach has been somewhat more moderate. Continue reading →