Category Archives: Constitutional

Section 7: Superhero, Mere Mortal or Villain?

By: Jennifer Koshan

PDF Version: Section 7: Superhero, Mere Mortal or Villain?

Comment On: Section 7 of the Canadian Charter of Rights and Freedoms

Many people love superheroes. My favourite was always Spider-Man – he had the most interesting back story, the coolest superpowers, and the grooviest soundtrack and visuals (at least in the cartoon of my youth). Section 7 could easily be seen as the superhero of the Charter. It has the power to strike down laws and government policies that increase the risk of death and bodily or psychological harm, as well as those that deprive people of the ability to make fundamental personal decisions free from state interference. Those powers have been used by the Supreme Court of Canada in ways that may make the members of the Court the actual superheroes in the eyes of many individuals and groups who are vulnerable to the effects of state (in)action (for recent examples see Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 (CanLII), Canada (Attorney General) v Bedford, 2013 SCC 72 (CanLII), and Carter v Canada (Attorney General), 2015 SCC 5 (CanLII)).

But the courts do not always embrace the role of superhero. They can be timid Peter Parkers who are afraid to use their powers under section 7, especially when the use of those powers is seen as imposing positive obligations on governments. Conversely, section 7 powers may sometimes be used in ways that usurp the role of other Charter sections such as section 15, leaving equality rights and the individuals and groups who are the intended beneficiaries of that section in the dust. Alternatively, the courts, like Spider-Man, may be seen as villainous, fully intending to protect society but, by overextending their powers, harming society instead. Indeed, Asher Honickman, in The Case for a Constrained Approach to Section 7, argues that the Supreme Court has expanded section 7 beyond its proper limits. Continue reading →

The Deductibility of Legal Fees Incurred in Child Support Proceedings and Section 15 of the Charter

By: Kyle Gardiner

 PDF Version:The Deductibility of Legal Fees Incurred in Child Support Proceedings and Section 15 of the Charter

Case commented on: Grenon v. Canada, 2016 FCA 4 (CanLII), leave to appeal dismissed, 2016 CanLII 41074 (SCC)

On June 30th, 2016, the Supreme Court of Canada denied leave to appeal in the case of Grenon v. Canada, 2016 FCA 4 (CanLII), which was heard in Calgary at both trial and on appeal. The Appellant Grenon was seeking to challenge certain aspects of tax law and policy under section 15 of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada has only heard two previous challenges to tax law based on the equality rights guarantee in section 15 of the Charter. In Symes v. Canada, [1993] 4 SCR 695, 1993 CanLII 55, a challenge based on the inability to deduct childcare expenses as business expenses was unsuccessful. In Thibaudeau v. Canada, [1995] 2 SCR 627, 1995 CanLII 99, a provision requiring custodial parents to include child support payments in their income was also found not to violate section 15. It has been 21 years since the Supreme Court of Canada last heard an equality challenge to tax law. This post will focus on the missed opportunities resulting from the Supreme Court’s refusal to hear the Grenon appeal and some of the issues that have arisen in the past 20 years which it could have confronted. Continue reading →

Justice In a Timely Manner: The New Framework for Trial Within a Reasonable Time

By: Drew Yewchuk 

PDF Version: Justice In a Timely Manner: The New Framework for Trial Within a Reasonable Time

Cases Commented On: R v Jordan, 2016 SCC 27 (CanLII); R v Williamson, 2016 SCC 28 (CanLII)

I recently posted a comment on a Supreme Court of Canada decision, R v Vassell, 2016 SCC 26 (CanLII), involving section 11(b) of the Charter, which guarantees the right of any person charged with an offence to be tried within a reasonable time. On July 8, 2016, the Supreme Court of Canada decided two more appeals on section 11(b) of the Charter. In a five-four split in R v Jordan, 2016 SCC 27 (CanLII), the majority overturned the framework for calculating unreasonable delay that was established in R v Morin, [1992] 1 SCR 771 (CanLII). The new framework is simpler, and establishes presumptive ceilings for unreasonable delay (minus defence delays) between charges being laid and the end of trial. The new ceilings are 18 months for charges going to trial in provincial court, and 30 months for charges going to superior court. (Jordan, at para 49) This is a significant change to section 11(b) jurisprudence, and both the majority and concurring judgments acknowledge it as such (Jordan, majority at paras 134-137, concurring at para 302). Moreover, the concurring justices only concur as to the outcome of Jordan – they propose a less radical departure from Morin and fundamentally disagree regarding the proper framework to be applied. This post explores the reasons provided by the majority for this change, as well as the application of the majority and alternative frameworks in Jordan and the companion case of R v Williamson, 2016 SCC 28 (CanLII). Continue reading →

The Forest of Delays

By: Drew Yewchuk

PDF Version: The Forest of Delays

Case Commented On: R v Vassell, 2016 SCC 26 (CanLII)

Section 11(b) of the Canadian Charter of Rights and Freedoms, guarantees that any person charged with an offence has the right to be tried within a reasonable time. In R v Vassell 2016 SCC 26 (CanLII) the Supreme Court of Canada reiterated that the Crown is responsible to deliver on this right. The approach that had been developing in Alberta courts was that the right would only be violated where the actions of the Crown caused excessive delay – institutional delays and delays caused by anything other than Crown actions were considered neutral or less important and did not trigger section 11(b). The Supreme Court in Vassell rejects this approach: the Crown is responsible for bringing the accused to trial within a reasonable time and therefore for all delays, regardless of their cause, trigger section 11(b) unless the accused explicitly or implicitly waives their right to be tried within a reasonable time. Continue reading →

On the Charter, Freedom of Expression, and Scientific Research

By: Stephen Armstrong

PDF Version: On the Charter, Freedom of Expression, and Scientific Research

Provision Commented On: Section 2(b), Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11

Does section 2(b) of the Canadian Charter of Rights and Freedoms protect the freedom of scientific research? Is conducting an experiment an expressive act? These are important questions as Canadians face a world increasingly dominated by rapid scientific advancement. Recently, the US Senate and the US National Academy of Sciences have each called for greater research into geoengineering (Committee on Geoengineering Climate, National Research Council, Climate Intervention: Carbon Dioxide Removal and Reliable Sequestration (Washington: 2015, The National Academies Press) at 107). Such measures are the harbingers of an age in which humans are acquiring the capability to control the Earth’s climate the way a sculptor shapes his clay. Against this backdrop, the need for governance of geoengineering research at both the international and national levels is clear. However, any state measures to restrict or regulate research in Canada must conform to the supreme law of the land. In this post, I will explore arguments for and against the protection of scientific research under the free expression guarantee contained in the Charter. While strong criticism against inclusion of research as expression exists, I ultimately conclude that the Charter likely protects freedom of scientific research within the freedom of expression guarantee. Continue reading →