Category Archives: Constitutional

Parks and Tribulation: Chartering the Territory of Homeless Camping Rights

By: Joshua Sealy-Harrington and Tara Russell

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Case Commented On: Abbotsford (City) v Shantz, 2015 BCSC 1909

In Abbotsford (City) v Shantz, 2015 BCSC 1909 (Abbotsford), Chief Justice Hinkson of the British Columbia Supreme Court assessed multiple Charter challenges to various bylaws affecting individuals experiencing homelessness in British Columbia. Abbotsford continues a trend of recent Canadian decisions addressing the Charter rights of homeless individuals. While the Court in Abbotsford recognized a right for homeless individuals to camp overnight in parks when insufficient shelter space is available, that right is narrow since it can be eliminated through the expansion of homeless shelters (even though many homeless individuals legitimately prefer camping to a shelter). Further, that right rests upon an unclear foundation of legal reasoning that narrows the constitutional protections for homeless individuals without adequate justification.

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Physician-Assisted Dying Once Again Before the Supreme Court: What Just Happened?

By: Elliot Holzman

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Case Commented On: Carter v Canada (Attorney General), 2016 SCC 4

On February 6, 2015, the Supreme Court of Canada handed down its much-anticipated decision in Carter v Canada (Attorney General), 2015 SCC 5 (Carter I), a landmark ruling where the criminal prohibition on physician-assisted dying was declared unconstitutional. Professor Jennifer Koshan wrote here about Carter I. In that decision, the Court did not immediately invalidate the relevant sections of the Criminal Code, RSC 1985, c C-46, rather the declaration of invalidity was suspended by one year, set to expire on February 6, 2016. Since February 6, a confluence of factors, including: Parliament not acting with much hurry on crafting new legislation to respond to Carter I, a historically long federal election that resulted in a change of government, and the four-month dissolution of Parliament, resulted in the Court once again hearing oral arguments in the case – this time an application by the Attorney General of Canada to extend the suspension of invalidity by another 6 months (see Carter v Canada (Attorney General), 2016 SCC 4 (Carter II)).

In Carter II, the Court had to grapple with new issues since the Carter I decision – Quebec’s National Assembly enacted its own legislation permitting physician assisted suicide – and the Court heard oral arguments from the Attorney General of Quebec seeking an exemption from the proposed extension. The Court granted the Attorney General of Canada a four-month extension, Quebec was given the green light to implement its legislation, and in the four-month window, individual patients can apply to the courts for a constitutional exemption to the suspension of invalidity. This comment will first look at the remedy the Court crafted in Carter I, and then move on to its decision in Carter II.

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Constitutional Challenge to Gang-Affiliation Law Scores (Interim) Win

By: Sarah Burton

PDF Version: Constitutional Challenge to Gang-Affiliation Law Scores (Interim) Win

Case Commented On: Barr v Alberta (Attorney General), 2016 ABQB 10

Last spring, I posted a comment flagging the constitutional concerns surrounding section 69.1 of the Gaming and Liquor Act, RSA 2000, c G-1, the province’s gang affiliation law (here). The provision authorizes police officers to remove or exclude anyone from a licenced premises based on their belief that the target of removal is connected, in varying degrees, to a gang (see section 69.1 here). Failing to comply with this direction is an offence punishable by a fine and/or a maximum of 6 months in prison (Gaming and Liquor Act, sections 116, 117; Barr v Alberta (Attorney General), 2016 ABQB 10 at para 3).

The gang affiliation law is meant to protect bar owners by diminishing gang presence in bars and de-incentivizing the lifestyle to potential recruits (Barr at para 6). Despite this laudable goal, the law raises several red flags under the Charter: it appears overbroad both in its sphere of application (it applies not only to bars, but all licenced premises) and targets for removal (including not only gang members, but persons who support or facilitate gangs, or persons in the company of any of those persons). It also appears to contravene the Charter’s guaranteed freedoms regarding peaceful assembly and association. I encourage readers interested in the provision to read my earlier post here.

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TransCanada Sues U.S. Government for Rejecting Keystone Pipelines

By: James Coleman

PDF Version: TransCanada Sues U.S. Government for Rejecting Keystone Pipelines

Last Wednesday, TransCanada filed a complaint against the United States in a federal district court in Houston alleging that the President’s rejection of the Keystone XL pipeline was invalid and unconstitutional because it was not authorized by Congress. If successful, this claim would allow construction of the pipeline.

On the same day, TransCanada filed a notice of intent to submit a claim to arbitration under the North American Free Trade Agreement (NAFTA). Even if successful, this claim would not allow construction of the pipeline, but could entitle TransCanada to money damages from the United States. The company is asking for $15 billion in damages.

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BC Court Confirms That a Municipality Has No Authority With Respect to the Routing of an Interprovincial Pipeline

By: Nigel Bankes

PDF Version: BC Court Confirms That a Municipality Has No Authority With Respect to the Routing of an Interprovincial Pipeline

Case Commented On: Burnaby (City) v Trans Mountain Pipeline ULC, 2015 BCSC 2140

The Trans Mountain Expansion Project is still before the National Energy Board (NEB) (see the comment by Kirk Lambrecht QC here) and all the while spawning lots of litigation, some in the Federal Court of Appeal and some in the provincial superior courts. I have commented on most of that litigation in “Pipelines, the National Energy Board and the Federal Court” (2015), 3 Energy Regulation Quarterly 59 – 73.

In this most recent case the City of Burnaby was trying to get the support of the Supreme Court of British Columbia for an issue that it had already lost before the NEB and which, to put it in neutral terms, had failed to attract the interest of the Federal Court of Appeal. To review the facts briefly, TM as part of its expansion proposals, was considering alternative routing for its pipeline through Burnaby Mountain. In order to assess that route it required access to the relevant lands to carry out geotechnical and other studies. The City of Burnaby actively opposed the expansion project and served notices on TM’s contractors alleging violation of various Burnaby by-laws. That led TM to seek a ruling from the NEB confirming that the Board had the jurisdiction to authorize TM’s activities, and, to the extent that Burnaby’s by-laws were making it impossible for TM to carry out the necessary tests, a ruling that the by-laws were constitutionally inapplicable, or if not inapplicable, were in conflict with the provisions of the National Energy Board Act and therefore inoperative on the basis of the paramountcy doctrine. The Board provided that ruling in its well-reasoned Ruling No. 40. The Federal Court of Appeal denied leave without giving reasons, a practice that I have criticized in earlier posts here and here.

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