Category: Constitutional Page 31 of 72

By: Jennifer Koshan

PDF Version: A Terminal Dispute? The Alberta Court of Appeal Versus the Federal Government on Assisted Death

Case and Legislation Commented On: Canada (Attorney General) v E.F., 2016 ABCA 155 (CanLII); Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), 42nd Parliament, 1st Session (as amended by the Standing Committee on Justice and Human Rights)

Anyone not familiar with the controversy surrounding assisted death got a taste of it last week during the debate over Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), which culminated in Elbowgate in the House of Commons. Also last week, in the first appellate decision to consider assisted dying post-Carter, the Alberta Court of Appeal weighed in on the criteria for constitutional exemptions during the suspension of the declaration of invalidity of the criminal provisions which prohibit assisted death (see Carter v Canada (Attorney General), 2015 SCC 5 (CanLII) (Carter 2015) and Carter v Canada (Attorney General), 2016 SCC 4 (CanLII) (Carter 2016); and for posts on those decisions see here and here). The Court of Appeal’s decision in Canada (Attorney General) v E.F., 2016 ABCA 155 (CanLII), highlights the lack of congruence between what Carter 2015 constitutionally required and what the government has, so far, delivered in Bill C-14, particularly when it comes to whether a person seeking medical assistance in dying must have an illness that is “terminal”. E.F. also comments on the appropriate role of the Attorney General of Canada in applications seeking judicial authorization of the constitutional exemption allowing assisted dying in certain circumstances during the suspended declaration of invalidity.

BCCA Unfortunately Chooses Not to Follow Alberta’s Lead on the Issue of Whether the Charter Applies to Universities

By Linda McKay-Panos

On May 25, 2016

In Constitutional

By: Linda McKay-Panos

PDF Version: BCCA Unfortunately Chooses Not to Follow Alberta’s Lead on the Issue of Whether the Charter Applies To Universities

Case Commented On: BC Civil Liberties Association v University of Victoria, 2016 BCCA 162 (CanLII)

There are a number of ABlawg posts dealing with the issue of whether the Canadian Charter of Rights and Freedoms (Charter) applies to universities (see: Face-ing the Charter’s Application on University Campuses; University Campus is not Charter-Free; Freedom of Expression, Universities and Anti-Choice Protests). Many of these decisions involve freedom of expression, which is considered to be a very important element of university life (e.g., for academic freedom, free discussion and debate of ideas). Recently, I posted about a case involving the University of Victoria (see Does the Charter Apply to Universities? Pridgen Distinguished in U Vic Case) in which the British Columbia Supreme Court did not follow the judgment of Alberta Court of Appeal Justice Paperny in Pridgen v University of Calgary, 2012 ABCA 139. Although the case law synthesized by Justice Paperny was not determinative in Pridgen, her judgment provides an excellent, logical synthesis of how the precedents on the application of the Charter should be applied in various contexts, including universities. This post discusses the BCCA decision on the University of Victoria case.

Constitutional Exemptions for Physician Assisted Dying: The First Case of Judicial Authorization in Alberta

By Jennifer Koshan

On March 3, 2016

In Constitutional, Remedies

By: Jennifer Koshan

PDF Version: Constitutional Exemptions for Physician Assisted Dying: The First Case of Judicial Authorization in Alberta

Case Commented On: HS (Re), 2016 ABQB 121 (CanLII)

On February 29, 2016, Justice Sheilah Martin of the Alberta Court of Queen’s Bench released a decision providing authorization for physician assisted death to HS, an adult woman with amyotrophic lateral sclerosis (ALS). This is thought to be the first case outside of Quebec where a court has confirmed the eligibility of a claimant for a constitutional exemption following the Supreme Court of Canada’s decision in Carter v Canada (Attorney General), 2016 SCC 4 (CanLII) (Carter II). As I noted in a previous post, in Carter I (Carter v Canada (Attorney General), 2015 SCC 5) the Supreme Court struck down the criminal prohibition against physician assisted death (PAD) on the basis that it unjustifiably violated the rights to life, liberty and security of the person in section 7 of the Charter. That remedy was suspended for a year to allow the federal government time to enact a new law without leaving a gap in the legislative scheme that might be used to induce vulnerable persons to take their own lives. The Court declined to grant exemptions from the suspension in Carter I given that none of the claimants were in need of immediate relief; Gloria Taylor, the only Carter claimant who had originally sought an exemption, had died before the Supreme Court hearing (2015 SCC 5 at para 129). In Carter II, the Supreme Court extended the suspension of its remedy by 4 months to account for the change in federal government (see Elliot Holzman’s post on Carter II here). In light of the extraordinary nature of the extension — which permitted an unconstitutional law to remain in effect for an extended time — the Court granted a constitutional exemption to competent adults when they met certain criteria: (1) they clearly consent to the termination of life and (2) they have “a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition and that cannot be alleviated by any treatment acceptable to the individual.” (2016 ABQB 121 at para 2). This post will focus on the role of courts that are called upon to assess claimants’ eligibility for constitutional exemptions, as discussed by Justice Martin in the HS case.

The Tension Between Process and Outcome in Creating Representative Juries

By Erin Sheley

On February 5, 2016

In Constitutional, Criminal

By: Erin Sheley

PDF Version: The Tension Between Process and Outcome in Creating Representative Juries

Case Commented On: R v Newborn, 2016 ABQB 13

The Court of Queen’s Bench has upheld the Alberta Jury Act’s exclusion from jury service of those criminally convicted or charged, in reasons that emphasize the conflict between the important goals of securing impartiality on individual juries and promoting racial representativeness in jury selection at the systemic level.

Jeremy Newborn, an aboriginal man charged with second degree murder in Edmonton, was granted an adjournment of jury selection after his counsel reported to the judge that none of the members of the jury array appeared to be of aboriginal descent. Mr. Newborn moved for a declaration invalidating s. 4(h) of the Jury Act, RSA 2000, c J-3, which provides that persons who have been convicted of a criminal offence for which a pardon has not been granted, or who are currently charged with a criminal offence, are excluded from serving as jurors. His argument turns on the fact that Aboriginal persons form a disproportionate percentage of the criminally accused, relative to their representation in the general population, and that the s. 4(h) exclusions therefore violate his right to a representative jury under ss. 7, 11(d) and 11(f) of the Charter.

Parks and Tribulation: Chartering the Territory of Homeless Camping Rights

By Joshua Sealy-Harrington

On February 3, 2016

In Constitutional

By: Joshua Sealy-Harrington and Tara Russell

PDF Version: Parks and Tribulation: Chartering the Territory of Homeless Camping Rights

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.