Category: Constitutional Page 30 of 74

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.

Bill S-3: A rushed response to Descheneaux

By Elysa Darling

On December 1, 2016

In Aboriginal, Constitutional, Human Rights

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.

The Constitutional Limits of the Sex Offender Registry

By Erin Sheley

On November 30, 2016

In Constitutional, Criminal

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.

The Application of the Charter to a Protest on the Siksika Nation

By Linda McKay-Panos

On November 22, 2016

In Aboriginal, Constitutional

By: Linda McKay-Panos

PDF Version: The Application of the Charter to a Protest on the Siksika Nation

Case Commented On: Siksika Nation v Crowchief, 2016 ABQB 596 (CanLII)

Recently there have been several cases involving the issue of whether the Charter of Rights and Freedoms (Charter) applies in a context where there is some government or public nexus but the action may be characterized as one involving private parties. See for example, my previous post on the application of the Charter to Universities.

This case presents yet another situation where the court is asked to address whether the Charter applies. Most of the decision involves whether the Court should grant an interlocutory injunction to the Siksika Nation. The Siksika Nation, represented by its Chief and Council (Applicant), filed a Statement of Claim seeking an injunction and damages against Ben Crowchief and “Unknown Defendants” (Respondents). A number of band members, including Crowchief, blockaded the reconstruction of Siksika Nation homes being built to address damages from flooding of the Bow River in 2013. The blockade was intended to protest the lack of accountability and transparency by the council and chief (at para 18).

Taking Proportionality Seriously in Charter Adjudication: R v KRJ

By Stephen Armstrong

On September 9, 2016

In Constitutional, Supreme Court of Canada

By: Stephen Armstrong

PDF Version: Taking Proportionality Seriously in Charter Adjudication: R v KRJ

Case Commented On: R v KRJ, 2016 SCC 31 (CanLII)

Introduction

The rights and freedoms enshrined in the Charter are not absolute. They are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (Canadian Charter of Rights and Freedoms, section 1). In R v Oakes, 1986 CanLII 46 (SCC), Chief Justice Brian Dickson established the legal standard by which an infringement of a Charter protected right may be justified, which has come to be known as the “Oakes test.” An infringing law must (1) pursue a pressing and substantial objective, (2) be rationally connected to that objective, (3) minimally impair the right or freedom in question, and (4) there must be a proportionality of effects between the deleterious and salutary effects of the law (Oakes at paras 69-70). It is possible to find each of these elements described in somewhat different language throughout the case law, but these four components are the essence of the Oakes test.

In R v KRJ, 2016 SCC 31 (CanLII), the Supreme Court of Canada was tasked with delicately balancing the Charter right of an offender not to be punished by the retrospective application of a punitive law, against Parliament’s objective of protecting children from sexual violence perpetrated by recidivists (KRJ at para 64). I will elaborate on the substance of the decision below, but what is of interest to me in this case is the lengthy and substantial “proportionality of effects” analyses engaged in by Justices Andromache Karakatsanis (writing for the majority), Rosalie Abella (dissenting in part), and Russell Brown (dissenting in part). The most substantial point of disagreement between the three judgements occurred at the final stage of the Oakes test.

Category: Constitutional Page 30 of 74

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

Bill S-3: A rushed response to Descheneaux

The Constitutional Limits of the Sex Offender Registry

The Application of the Charter to a Protest on the Siksika Nation

Taking Proportionality Seriously in Charter Adjudication: R v KRJ