Category Archives: Constitutional

The Debate over the Charter’s Reach Continues: A Question Regarding Free Expression at Airports

By: Sarah Burton

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Case Commented On: The Calgary Airport Authority v Canadian Centre for Bio-Ethical Reform, 2014 ABQB 493

In The Calgary Airport Authority v Canadian Centre for Bio-Ethical Reform, 2014 ABQB 493 (“CAA v CCBR”), Chief Justice Wittmann granted an interim injunction prohibiting an anti-abortion group from protesting at the Calgary International Airport. Separate and apart from the polarizing subject-matter, this case is interesting because it raises some basic Charter questions that stubbornly refuse to be settled. Despite raising interesting questions regarding the reach of the Charter to quasi-governmental entities and the meaning of public property, the Court did not provide any answers at this stage. Given the nature of an interim injunction application, Chief Justice Wittmann was only asked to determine if the matters raised “serious issues to be tried” – a decision he had little difficulty making. Even without final answers though, this decision still merits attention. Not only are the issues themselves thought-provoking, the parties clearly viewed the application as one of massive importance, and accordingly prepared forceful arguments. At the very least, Chief Justice Wittman’s direction that the matter move expeditiously via case management signals that the Court will be providing a substantive answer to these questions in the not-too-distant future.

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Federal Court to Syncrude: Climate Change is a Real, Measured Evil, Whose Harm has been Well Documented

By: Martin Olszynski

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Case Commented On: Syncrude Canada Ltd. v Attorney General of Canada, 2014 FC 776

“The fall term in the 1997-1998 academic year,” wrote Professor David Beatty, “was a constitutional law teacher’s dream.” Professor Beatty was referring to the release of two Supreme Court of Canada decisions that touched some of the “most politically charged issues” of the day and which “together raised almost every important issue in constitutional law” (one of which was R v Hydro Quebec, [1997] 3 SCR 213, 1997 CanLII 318 (SCC), central to the Syncrude decision being commented on here; see David Beatty, “Canadian Constitutional Law in a Nutshell” (1998) 36(3) Alta L Rev 605). As it turns out, the summer of 2014 has shaped up to be an environmental law teacher’s dream. In May, the Federal Court released its decision in Greenpeace Canada v Canada (Attorney General), 2014 FC 463 (CanLII), a decision that I have suggested represents a major development in Canadian environmental assessment law. Then in August, the Federal Court handed down its judgment in Syncrude, which my colleague Professor Nigel Bankes has observed is the “first case in which a party has challenged the constitutional validity of any federal greenhouse gas regulations.” This post focuses on that very issue; Professor Shaun Fluker has also written a post on the decision, focusing on the administrative law issues.

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R v Navales and Reasonable Suspicion

By: Shaun Leochko

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Cases Commented On: R v Navales, 2014 ABCA 70; R v Canlas, 2014 ABCA 160; R v Ng, 2014 ABPC 62; R v Tosczak, 2014 ABQB 86

The engagement of section 8 and section 9 of the Canadian Charter of Rights and Freedoms (the Charter) in the drug sniffer dog cases has captured the interest of civil libertarians and law enforcement for what is required for a “reasonable suspicion.” The 2013 Supreme Court decisions of R v Chehil, 2013 SCC 49, and R v MacKenzie, 2013 SCC 50 effectively lowered what would be required of police officers to form the reasonable suspicion necessary to conduct a “sniff” search. This resulted from the Supreme Court allowing an officer’s training and experience, in the totality of the circumstances, to form the objective requirement necessary to the forming of reasonable suspicion. The Alberta Court of Appeal in R v Navales, 2014 ABCA 70, was tasked with applying this law in Alberta. At issue was how officers would use their training and experience, and a constellation of neutral “no win” behaviours on the part of the accused to form the objective grounds needed to find reasonable suspicion. The result has been what dissenting judges have referred to as a lowering of the standard to that of a generalized suspicion. Significantly, this line of decisions has been applied outside of the drug sniffing dog context, and even outside of the reasonable suspicion context, to other areas of criminal law in R v Canlas, 2014 ABCA 160, R v Ng, 2014 ABPC 62, and R v Tosczak, 2014 ABQB 86. Continue reading →

Grassy Narrows, Division of Powers and International Law

By: Nigel Bankes

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Case commented on: Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48

This post discusses two issues arising from the Supreme Court’s decision in Grassy Narrows. The post first considers the implications of the Court’s conclusion that the doctrine of interjurisdictional immunity does not apply in a case where a province infringes the treaty right to hunt leaving the treaty party with no meaningful right to hunt. Second the post argues that the Court’s conclusion that a provincial government may be able to justify an infringement of hunting rights of this nature is inconsistent with Canada’s obligations under international law. Continue reading →

What Does Radical Title Add to the Concept of Sovereignty?

By: Nigel Bankes and Jonnette Watson Hamilton

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Case commented on: Tsilhqot’in Nation v British Columbia, 2014 SCC 44

The Crown’s radical title plays a larger role in the Supreme Court of Canada decision in Tsilhqot’in than it has in the Court’s previous Aboriginal rights decisions. However, it is unclear what the Court means by radical title in Tsilhqot’in or what work the concept is performing. One way to try to figure this out is to reflect on our understanding of the relationship between Aboriginal title and the Crown’s radical title before the Tsilhqot’in decision, describe Tsilhqot’in’s discussion of radical title, and then consider whether it adds anything to the concept of sovereignty. Continue reading →