Category Archives: Constitutional

Can the Homeless Find Shelter in the Courts?

By: Joshua-Sealy Harrington

PDF Version: Can the Homeless Find Shelter in the Courts?

Case Commented On: Tanudjaja v Canada (Attorney General), 2014 ONCA 852

Late in 2014, the Ontario Court of Appeal considered a Charter challenge to provincial and federal (in)activity allegedly contributing to homelessness and inadequate housing (Tanudjaja v Canada (Attorney General), 2014 ONCA 852 (“Tanudjaja CA”)). The appellants sought to overturn a motion judge’s decision striking their application at the pleadings stage (Tanudjaja v Canada (Attorney General), 2013 ONSC 5410 (“Tanudjaja SC”)). A majority of the Court of Appeal (the “Majority”) upheld the motion judge, while the dissenting judgment (the “Dissent”) would have overturned the motion judge and allowed the Charter challenge to proceed to trial. This comment analyzes both judgments and concludes that the Dissent provides a more compelling analysis of the governing legal principles and their application in this case.

Continue reading →

Constitutional Concerns about Being “In the Company” of a Gang-Affiliate

By: Sarah Burton

PDF Version: Constitutional Concerns about Being “In the Company” of a Gang-Affiliate

Legislation Commented On: Gaming and Liquor Act, RSA 2000, c G-1

Six years ago, the Province of Alberta amended the Gaming and Liquor Act, RSA 2000, c G-1 as part of a broader policy to crack down on gang related activity. Section 69.1 of the Act allows police officers to “exclude or remove from licensed premises any person the police officer believes to be associated with a gang.” Almost immediately, the amendment raised a number of serious constitutional concerns (see here). Political pressure to shut down gangs, however, proved more powerful than any protest from civil libertarians and Charter enthusiasts. Despite the multitude of objections, the amendment came into effect and has been in force since 2009.

Given this history, it strikes me as odd that the provision has never been considered (or even mentioned) in any reported decision. Why is that? Perhaps the law is not being used at all. Maybe persons who resist are being charged under different provisions, or charges are being dropped before trial. It is difficult to fill in the reasons for a gap in judicial consideration, but given the constitutional concerns that were immediately evident, the absence of any case law is a puzzling cause for concern.

This post is intended to circle back on the “gangbuster” amendment to explore what has transpired since its enactment. It also reconsiders and fleshes out questions about the amendment’s constitutionality.

Continue reading →

The Supreme Court’s New Constitutional Decisions and the Rights of Farm Workers in Alberta

By: Jennifer Koshan

PDF Version: The Supreme Court’s New Constitutional Decisions and the Rights of Farm Workers in Alberta

Cases Commented On: Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1 (CanLII); Meredith v Canada (Attorney General), 2015 SCC 2 (CanLII); Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 (CanLII); Carter v Canada (Attorney General), 2015 SCC 5 (CanLII)

As I was saying to my constitutional law students the other day, the first few weeks of 2015 have been remarkable for the sheer number of Charter decisions released by the Supreme Court of Canada, including several that have overturned previous decisions in important ways. Of the eight SCC decisions released to date in 2015, five are major Charter rulings. Several of these decisions have implications for a project on the rights of farm workers that I worked on with a group of constitutional clinical students in the winter of 2014. The students’ posts on the constitutionality of excluding farm workers from labour and employment legislation are available here, here, here and here. In this post, I will outline the impact these recent Charter decisions have on the students’ arguments. In a nutshell, they make the claims of farm workers for legislative protection even stronger, refuting the argument of Premier Jim Prentice that we need “more research and debate” before taking action on these unconstitutional exclusions.

Continue reading →

Open Letter to Parliament on Bill C-51

Editor’s Note: Several Faculty members signed this letter, the full version of which is available here. 

An open letter to members of Parliament on Bill C-51

Dear Members of Parliament,

Please accept this collective open letter as an expression of the signatories’ deep concern that Bill C-51 (which the government is calling the Anti-terrorism Act, 2015) is a dangerous piece of legislation in terms of its potential impacts on the rule of law, on constitutionally and internationally protected rights, and on the health of Canada’s democracy.

Beyond that, we note with concern that knowledgeable analysts have made cogent arguments not only that Bill C-51 may turn out to be ineffective in countering terrorism by virtue of what is omitted from the bill, but also that Bill C-51 could actually be counter-productive in that it could easily get in the way of effective policing, intelligence-gathering and prosecutorial activity. In this respect, we wish it to be clear that we are neither “extremists” (as the Prime Minister has recently labelled the Official Opposition for its resistance to Bill C-51) nor dismissive of the real threats to Canadians’ security that government and Parliament have a duty to protect. Rather, we believe that terrorism must be countered in ways that are fully consistent with core values (that include liberty, non-discrimination, and the rule of law), that are evidence-based, and that are likely to be effective.

Continue reading →

Honour Killings and City Buses – The Limits on Advertising Controversial Messages on Public Transit and the Soon-To-Be-Decided Case of AFDI v The City of Edmonton

By: Ola Malik and Sarah Burton

PDF Version: Honour Killings and City Buses – The Limits on Advertising Controversial Messages on Public Transit and the Soon-To-Be-Decided Case of AFDI v The City of Edmonton

Introduction

Consider these two ads which deal with the subject of honour killings. You are told that the maker of these advertisements, the American Freedom Defence Initiative (“AFDI”) published the ads in order to raise awareness of the subject and to provide support to young girls whose lives are in danger. These ads are similar with the exception of the revisions made to the second ad in italics.

Girls’ Honor Killed by their Families. Is Your Family Threatening you? Is Your Life in Danger? We Can Help: Go to FightforFreedom.us

Muslim Girls’ Honor Killed By Their Families. Is Your Family Threatening You? Is there a Fatwa On your Head? We Can Help: Go to FightforFreedom.us

The second ad has the initials “SIOA”, or “Stop the Islamization of America” added at the bottom.

Advertising for the second ad has been purchased from the Edmonton Transit Service (“ETS”). It will appear in the form of a large panel covering the rear of an Edmonton city bus. AFDI has purchased 5 such ads which will run for 4 weeks.

Do you believe either of these ads constitutes lawful expressive activity such that they are protected by freedom of expression as provided by section 2(b) of the Charter?

What do you make of the second sign? It doesn’t expressly advocate violence or hate, nor is it expressly hateful of the Muslim community. It is a matter of fact that thousands of Muslim girls around the world have been killed in this way.

But is it misleading to suggest that honour killings only happen in the Muslim community and might this expose the Muslim community to vilification and harmful stereotyping by those who don’t know better? Is the logo “Stop the Islamization of America” a laudable aim worthy of protection, or is it simply hateful?

Continue reading →