Category Archives: Constitutional

The Forest of Delays

By: Drew Yewchuk

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 →

Access to Justice in Criminal Law

By: Alice Woolley

PDF Version: Access to Justice in Criminal Law

Case Commented On: R. v Moodie, 2016 ONSC 3469 (CanLII)

The Charter of Rights and Freedoms guarantees everyone the right to retain and instruct counsel on arrest or detention. What do we mean by that? Specifically, do we mean it? Do we mean it for people other than the relatively affluent few?

Canadian governments claim that we do. The vision of Legal Aid Alberta states that it aims for “An Alberta where everyone can access justice and achieve fair and lasting resolutions to their legal issues.” Legal Aid Ontario’s website says that it “provides legal assistance for low-income people”.

Justice Ian Nordheimer isn’t buying it. In a stinging judgment issued on May 26 in R. v. Moodie 2016 ONSC 3469, he stayed charges against Tyrell Moodie pending the provision of state-funded counsel. The charges faced by Mr. Moodie were serious and raised complex legal issues. Justice Nordheimer described the Ontario legal aid guidelines as having no “reasonable relationship to what constitutes poverty in this country” (para 6). Continue reading →

From Telecoms to Pipelines: Good News from the Supreme Court of Canada for Pipeline Builders

By: Nigel Bankes

PDF Version: From Telecoms to Pipelines: Good News from the Supreme Court of Canada for Pipeline Builders

Case commented on: Rogers Communications Inc v Châteauguay (City), 2016 SCC 23 (CanLII)

In this decision the Supreme Court of Canada (unanimous in the result) concluded that the actions of the City of Châteauguay in creating a reserve as to certain real property were directed at frustrating Rogers’ efforts to install an antenna system on property located within the City and were therefore unconstitutional as a measure dealing with the siting of telecommunications infrastructure. The majority found that Châteauguay’s notice of reserve was ultra vires (but also went on to offer an analysis that would have rendered the reserve inapplicable on the basis of the doctrine of interjurisdictional immunity (IJI)). The minority (Justice Gascon) preferred to find for Rogers solely on the basis of IJI.

While this is no doubt an important decision for the telecommunications industry it will almost certainly prove to be more important for the more tightly networked elements of the energy sector and in particular oil and gas pipelines given the highly contentious nature of current proposals to construct new pipelines or expand existing pipelines. Continue reading →

Prime Minister Trudeau You’ve Got the Power (the Criminal Law Power): Syncrude Canada Ltd v Canada and Greenhouse Gas Regulation

By: Sharon Mascher

PDF Version: Prime Minister Trudeau You’ve Got the Power (the Criminal Law Power): Syncrude Canada Ltd v Canada and Greenhouse Gas Regulation

Case Commented on: Syncrude Canada Ltd. v. Canada (Attorney General), 2016 FCA 160 (CanLII)

On May 30^th Justice Rennie delivered the Federal Court of Appeal’s unanimous judgment in Syncrude Canada Ltd v Canada (Attorney General). At issue in this case was the validity of s 5(2) of the federal Renewable Fuels Regulations, SOR/2010-189 (RFRs) which requires that all diesel fuel produced, imported, or sold in Canada contains at least 2% renewable fuel. While the FCA held that the RFRs are valid, from a climate change perspective this conclusion is not the reason this decision is important. As my colleague Nigel Bankes has noted here, the RFRs represent only “a tiny, tiny step” towards reducing Canada’s greenhouse gas (GHG) emissions. Rather, coming as it does on the heels of Canada signing the Paris Agreement and in the midst of talks aimed at developing a pan-Canadian climate change framework, the Syncrude decision is important because the FCA confirms that the federal government can use the criminal law power to regulate GHG emissions. More specifically, given that the RFRs at issue in this case create a flexible scheme that allows for the buying and selling of compliance units to achieve the 2% renewable fuel requirement, the Syncrude decision endorses the use of the criminal law power to support market-based emissions trading schemes or other pricing mechanisms. In short, provided federal regulations are directed at the purpose of reducing GHG emissions, this FCA decision tells the federal government that it has the constitutional power to take action on climate change. Continue reading →