Category: Constitutional Page 36 of 74

By: Jennifer Koshan

PDF Version: Protection for the Rights of Farm Workers Finally Proposed in Alberta

Legislation Commented On: Bill 6, Enhanced Protection for Farm and Ranch Workers Act

On November 17, 2015 the Minister of Jobs, Skills, Training and Labour Lori Sigurdson introduced Bill 6 in the Alberta Legislature. She described the Enhanced Protection for Farm and Ranch Workers Act as an omnibus bill that:

proposes to amend workplace legislation so Alberta’s farm and ranch workers will enjoy the same basic rights and protections as workers in other industries. Proposed changes would remove the exemption of the farm and ranch industry from occupational health and safety, employment standards, and labour relations legislation. Bill 6 also proposes to make workers’ compensation insurance mandatory for all farm and ranch workers. If passed, Alberta would join every other jurisdiction in Canada in applying workplace legislation to Alberta’s farms and ranches. This is a historic day for Alberta (Hansard, November 17, 2015).

Is there Space for the Homeless in our City’s Parks? A Summary and Brief Commentary of Abbotsford (City) v Shantz

By Ola Malik

On November 17, 2015

In Constitutional, Municipal Law

By: Ola Malik and Megan Van Huizen

PDF Version: Is there Space for the Homeless in our City’s Parks? A Summary and Brief Commentary of Abbotsford (City) v Shantz

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

The recent B.C. decision of Abbotsford (City) v Shantz) highlights the central issue which seems to arise whenever there is a conflict over the management of public city space – who does this space “belong” to, and who gets to use it? When we answer that question, many of us would agree that this space belongs to those who live in our communities — parents with strollers, families on an outing, people walking their dogs or playing with their kids. When we think about who belongs in our community, how many of us include the homeless?

The homeless are often excluded from our conception of community. It is easy to ignore the issue of homelessness when it is hidden from view. But as soon as the homeless become visible in our parks and neighbourhoods they are seen as a nuisance requiring a solution. The well-known phrase, “you don’t have to go home, but you can’t stay here” aptly captures the dilemma the homeless face — and when you have no place to call home – where do you go?

Impaired Driving and Approved Screening Devices

By Shaun Fluker

On November 12, 2015

In Constitutional, Criminal, Statutory Interpretation, Supreme Court of Canada

By: Shaun Fluker, Elliot Holzman, and Ian Pillai

PDF Version: Impaired Driving and Approved Screening Devices

Case Commented On: Goodwin v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46; Wilson v British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47

In October the Supreme Court of Canada issued two companion judgments concerning the constitutionality and meaning of the Automatic Roadside Prohibition (ARP) provisions set out in the Motor Vehicle Act, RSBC 1996, c 318. In Goodwin v British Columbia (Superintendent of Motor Vehicles) the Supreme Court upheld British Columbia’s ARP scheme as valid provincial law that does not unlawfully invade federal criminal law power or contravene section 11 of the Charter, but the Court also ruled that the seizure of a breath sample using an approved screening device (ASD) under the scheme as previously administered was an unreasonable seizure under section 8 of the Charter. In ruling as such, the Supreme Court upheld the ruling of the Chambers Justice who heard the matters back in 2010. Subsequent to that initial ruling the Province of British Columbia amended the ARP scheme in an attempt to remedy the unreasonable seizure, and the Supreme Court’s companion judgment in Wilson v British Columbia (Superintendent of Motor Vehicles) concerns the interpretation of these new provisions employing principles of statutory interpretation. In this comment we provide an overview of the ARP scheme and the issues raised by the use of ASDs in impaired driving cases, and bring this matter into an Alberta context. We also examine the Supreme Court’s constitutional analysis in Goodwin and its application of the principles of statutory interpretation in Wilson.

Is There a Right to Private Health Care in Alberta? A “Constitutional Vivisection”

By Jennifer Koshan

On September 23, 2015

In Constitutional

By: Jennifer Koshan

PDF Version: Is There a Right to Private Health Care in Alberta? A “Constitutional Vivisection”

Case Commented On: Allen v Alberta, 2015 ABCA 277

To what extent do precedents in constitutional cases allow litigants to take short cuts on evidence and procedure in subsequent claims? According to the Alberta Court of Appeal in Allen v Alberta, 2015 ABCA 277, it depends on a number of considerations. Many of the criteria that Justice Slatter enumerates in his opinion in Allen are sensible ones. However, he uses this case – involving a section 7 Charter challenge to the ban on private insurance in the health care context – to mount a critique of previous section 7 decisions, the Supreme Court of Canada, and even the framers of the Charter. Justice Slatter’s critique is arguably inconsistent with the role of the courts as guardians of the constitution, and Justices Martin and Watson, although concurring in the result, distance themselves from his critique. Ironically, Justice Slatter’s reasons for judgment are often devoid of precedential support even as he is writing on that very subject.

R v Porter: Self-incrimination – Judicial Restraint of State Coercion

By Brett Code, Q.C.

On September 21, 2015

In Constitutional, Criminal

By: Brett Code, Q.C.

PDF Version: R v Porter: Self-incrimination – Judicial Restraint of State Coercion

Case Commented On: R v Porter, 2015 ABCA 279

It should not have been necessary, because the applicable law on the matter has been settled since 1999, but for those police officers and prosecutors who might have forgotten, the Court of Appeal in R v Porter has once again forcefully stated that statutorily compelled statements are inadmissible in criminal trials because they violate the principle against self-incrimination and section 7 of the Canadian Charter of Rights and Freedoms. Insistent upon guarding against the admissibility of potentially unreliable confessions, against potential abuse of state power, and against the improper use by the Crown of otherwise properly-collected, statutorily required information, the Court confirmed the principle of fundamental justice that the state may not conscript the accused against himself or herself but must build any case to meet without compelled evidence from the suspect.

At issue was the use, if any, that could be made of information contained in compulsory accident reports made to police under section 71 of the Traffic Safety Act, RSA 2000, c T-6 (TSA) and in compulsory statements made to insurers for insurance purposes following an accident. The Court’s decisive conclusions were that:

such statements or the information contained in them are inadmissible in criminal proceedings arising out of a car accident; and
the information obtained through those statements cannot be used as part of the reasonable and probable grounds of an informant in an Information to Obtain a Search Warrant or Production Order.