Category: Constitutional Page 3 of 75

Democratic Charter Rights and First-Past-The-Post: A Shallow Conception of Democracy at the Ontario Court of Appeal

On September 26, 2025

In Constitutional, Election/Voting, Equality

Case Commented On: Fair Voting BC v Canada (Attorney General), 2025 ONCA 581

PDF Version: Democratic Charter Rights and First-Past-The-Post: A Shallow Conception of Democracy at the Ontario Court of Appeal

Despite many Canadians’ dissatisfaction with our current first-past-the-post (“FPTP”) election system, every attempt at reform so far has failed. The failed political attempts include the 2015 Liberal Party campaign promise to reform FPTP (at 27) and later abandonment of reform efforts, as well as the unsuccessful referendums in BC. A previous Charter-based challenge to the provincial system in Québec was dismissed in Daoust v Québec (Directeur general des élections), 2011 QCCA 1634. As of last month, the Charter challenge brought by Fair Voting BC and Springtide Collective for Democratic Society (collectively, the “Applicants”) is no exception. I will begin my commentary on Fair Voting BC v Canada (Attorney General), 2025 ONCA 581 (Fair Voting BC )by providing a summary of the Applicant’s claim, as well as some background on FPTP or single member plurality (SMP), compared to the proportional representation (PR) system advocated for by the Applicants. I will then review the majority decision in Fair Voting BC, highlighting what I believe to be a narrow and impoverished view of democratic rights under the Charter and the more balanced approach taken by Justice Dawe in his concurring reasons. I will conclude by emphasizing both the difficulty and the importance of judicial protection of democratic rights. Judicial restraint is commendable, and indeed essential, to protect the ideal of a free and democratic society. However, interpreting the right to vote as being limited to the mere ability to cast a ballot, as the majority does, risks abdicating the judicial responsibility to protect the foundation upon which the entire democratic system is premised.

The Dissent in Dickson v Vuntut Gwitchin First Nation: Failing to Accommodate Legal Pluralism

By Jennifer Koshan

On September 24, 2025

In Aboriginal, Constitutional, Indigenous

By: Jennifer Koshan, Robert Hamilton, and Jonnette Watson Hamilton

Cases Commented On: Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10 (CanLII); Houle v Swan River First Nation, 2025 FC 267 (CanLII); Donald-Potskin v Sawridge First Nation, 2025 FC 648 (CanLII); Cunningham v Sucker Creek First Nation 150A, 2025 FC 1174 (CanLII)

PDF Version: The Dissent in Dickson v Vuntut Gwitchin First Nation: Failing to Accommodate Legal Pluralism

This is the fourth and final post in our series on the Supreme Court of Canada’s decision in Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10 (CanLII). Our last post examined the majority judgment of Justices Nicholas Kasirer and Mahmud Jamal (Richard Wagner CJ and Suzanne Cote J concurring) on the interplay between sections 15(1) and 25 of the Charter. This post focuses on the dissenting judgment of Justices Sheilah Martin and Michelle O’Bonsawin on the section 15/25 issues. As we discuss, the two opinions contrast significantly in the way they prioritize the protection of collective Indigenous rights and the claims based on individual Charter rights and freedoms. We describe and critique the dissent’s analysis and we return to the three recent decisions introduced in our third post to think through how the approach of Martin and O’Bonsawin JJ would have played out in those cases (see Houle v Swan River First Nation, 2025 FC 267 (CanLII); Donald-Potskin v Sawridge First Nation, 2025 FC 648 (CanLII); Cunningham v Sucker Creek First Nation 150A, 2025 FC 1174 (CanLII)).

Securing the Infrastructure, Straining the Constitution? Bill C-8’s Cybersecurity Overhaul

By Dav More

On September 5, 2025

In Administrative Law, Constitutional, Privacy

By: Dav More and Tulika Bali

Matter Commented On: Bill C-8 , An Act respecting cyber security (1st Sess, 45th Parl, 2025)

PDF Version: Securing the Infrastructure, Straining the Constitution? Bill C-8’s Cybersecurity Overhaul

Cyberattacks targeting vital infrastructure have intensified globally. Recent high-profile incidents in the United States and Europe prompted national governments to tighten regulation (see Industrial Cyber, The National Law Review, CER, and AP News). The EU’s NIS2 Directive mandates stricter cybersecurity standards across member states by 2024. In Canada, the federal government introduced Bill C-26 in June 2022, aiming to overhaul cybersecurity regulation, but that bill died when Parliament was prorogued in early 2025 (Miller Thomson at para 2-3).

Charter Sections 15 and 25: The Majority Judgment in Dickson v Vuntut Gwitchin First Nation and its Application in the Federal Court

By Jonnette Watson Hamilton

On August 29, 2025

In Aboriginal, Constitutional, Equality, Indigenous

By: Jonnette Watson Hamilton, Robert Hamilton, and Jennifer Koshan

PDF Version: Charter Sections 15 and 25: The Majority Judgment in Dickson v Vuntut Gwitchin First Nation and its Application in the Federal Court

This is the third in a series of four ABlawg posts on the Supreme Court of Canada’s complex decision in Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10 (CanLII). The first post examined the extent to which various factions of the Court referenced the UN Declaration on the Rights of Indigenous Peoples, and the second post analyzed their handling of whether the Canadian Charter of Rights and Freedoms applied in this context. In this post, we explore another issue on which there was serious disagreement amongst members of the Court. Having found that the Charter applied to the Vuntut Gwitchin First Nation’s (VGFN) residency requirement for Council elections, the majority (Justices Nicolas Kasirer and Mahmud Jamal, with Chief Justice Richard Wagner and Justice Suzanne Côté concurring) and dissenting justices (Justices Sheilah Martin and Michelle O’Bonsawin) ruled on how to approach the interplay between sections 15(1) and 25 of the Charter. We look at the majority judgment and three recent decisions applying the majority’s approach to section 25, also in cases involving First Nations elections: Houle v Swan River First Nation, 2025 FC 267 (CanLII) (Houle), Donald-Potskin v Sawridge First Nation, 2025 FC 648 (CanLII)) (Donald-Potskin), and Cunningham v Sucker Creek First Nation 150A, 2025 FC 1174 (CanLII). The fourth post in this series will focus on the dissenting judgment of Martin and O’Bonsawin JJ on the interplay between sections 15(1) and 25.

Provincial Referendum Legislation, Citizen-Led Secession Proposals, and Non-Derogation Clauses

By Nigel Bankes

On June 11, 2025

In Constitutional, Indigenous, Treaty Rights

By: Nigel Bankes

Bill Commented On: Bill 54, Election Statutes Amendment Act

PDF Version: Provincial Referendum Legislation, Citizen-Led Secession Proposals, and Non-Derogation Clauses

In the dying hours of this last Legislative Session the Minister of Justice, Mickey Amery introduced a series of amendments (Amendment # A6, adopted May 14, 2025 and Hansard at 3494) to Bill 54, the Election Statutes Amendment Act. This is the Bill that will make it easier for parties to call for a citizen-led secession reference. One of the amendments related to proposed changes to the province’s Referendum Act, RSA 2000, c R-8.4. The amendment (the non-derogation clause or amendment) purports to clarify that:

Nothing in a referendum held under this Act is to be construed as abrogating or derogating from the existing aboriginal and treaty rights of the aboriginal peoples of Canada that are recognized and affirmed by section 35 of the Constitution Act, 1982.