Category: Constitutional Page 4 of 72

By: Nigel Bankes, Jennifer Koshan, Jonnette Watson Hamilton, and Martin Olszynski

Case Commented On: La Rose v Canada, 2023 FCA 241 (CanLII)

PDF Version: What Does La Rose Tell Us About Climate Change Litigation in Canada?

The last decade has seen an explosion of domestic climate change litigation around the world and an equally rich body of academic literature examining the case law from a variety of disciplinary perspectives. The Sabin Center for Climate Change Law maintains an excellent data base covering these developments. Important cases in other jurisdictions include the Urgenda decision (Urgenda v Netherlands (2019)) and Shell decision (Milieudefensie et al v Shell (2021)) in the Netherlands, and the 2021 decision of the German constitutional court (Neubauer et al v Germany). Australian environmental non-governmental organizations (ENGOs) have been particularly active in bringing climate change issues before the courts, especially in the context of proposed natural gas and coal projects, most famously in the Sharma case (Sharma by her litigation representative Sister Marie Brigid Arthur v Minister for the Environment [2021] FCA 560, appeal allowed, [2022] FCAFC 35).

Locating the Constitutional Guardrails on Federal Environmental Decision Making after Reference re: Impact Assessment Act

By Nathan Murray

On January 30, 2024

In Constitutional, Energy, Environmental, Oil & Gas

By: Nathan Murray and Martin Olszynski

Decision Commented On: Reference re Impact Assessment Act, 2023 SCC 23 (CanLII)

PDF Version: Locating the Constitutional Guardrails on Federal Environmental Decision Making after Reference re: Impact Assessment Act

This post is the seventh ABlawg commentary on the Supreme Court of Canada’s Reference re: Impact Assessment Act, 2023 SCC 23 (CanLII) (IAA Reference) decision from October 2023. In the most recent of those posts, one of us briefly noted the majority’s preoccupation with the concept of “adverseness” when delineating the scope of federal environmental jurisdiction under the Impact Assessment Act, SC 2019, c 28, s 1 (IAA). The majority’s preoccupation with that concept actually pervades the IAA Reference decision. Here, we focus squarely on the majority’s treatment of the concept of “adverseness” and its role in the public interest decision-making stage of federal impact assessment.

Gender-Affirming Names and Pronouns, Parental Control, and Family Violence

By Jennifer Koshan

On November 23, 2023

In Constitutional, Family, Human Rights

By: Jennifer Koshan

Policy Proposal Commented On: United Conservative Party, Annual General Meeting Policy and Governance Resolutions, Policy Resolution 8 (November 2023)

PDF Version: Gender-Affirming Names and Pronouns, Parental Control, and Family Violence

Content Warning: This post contains descriptions of family violence and gender identity abuse.

At the United Conservative Party (UCP)’s recent annual general meeting, party members voted on a number of policy proposals. Policy Resolution 8 was “almost unanimously” supported, and would “[r]equire Teachers, Schools, and School Boards to obtain the written consent of the parent/guardian of a student under the age of 16 prior to changing the name and/or pronouns used by the student” (United Conservative Party, Annual General Meeting Policy and Governance Resolutions at 38 (UCP Resolutions)). In a similar vein, Policy Resolution 17 would require the government to “[s]upport a comprehensive Bill of Parental Rights which ensures that all legislation will recognize and support parents’ rights to be informed of and in charge of all decisions to do with all services paid for by the province, including education and health care” (UCP Resolutions at 49). The Minister of Education, Demetrios Nicolaides, recently stated that the government is having an “active conversation” about this matter.

Religious Freedom and the Oath to the Sovereign

By Howard Kislowicz

On November 22, 2023

In Constitutional

By: Howard Kislowicz

Case Commented On: Wirring v Law Society of Alberta, 2023 ABKB 580 (CanLII)

PDF Version: Religious Freedom and the Oath to the Sovereign

In Wirring v Law Society of Alberta, 2023 ABKB 580 (CanLII), Justice Barbara Johnston for the Alberta Court of King’s Bench granted summary judgment in favour of His Majesty the King in Right of Alberta. The case concerns the objections of Prabjot Singh Wirring to “the portion of the oath mandated by the Legal Profession Act… as set out in the Oaths of Office Act… which includes an oath of allegiance to the sovereign” (at para 1). A person must take the oath to be admitted to the Law Society of Alberta and be entitled to practice law in Alberta. Wirring, who had “obtained a law degree from Dalhousie University and completed his articles” (at para 5) claimed that taking the oath violated his right to freedom of conscience and religion and his right to equality, as protected by ss 2(a) and 15 of the Canadian Charter of Rights and Freedoms. Wirring said that, as an Amritdhari Sikh, “oath of allegiance to the Queen is incompatible with the oath he has sworn to Akal Purakh, [the divine being in the Sikh tradition]” (at para 8).

Not Plenary, but Not Nothing Either: Greenhouse Gas Emissions in the Supreme Court Opinion on the (un)Constitutionality of the Federal Impact Assessment Regime

By David V Wright

On November 10, 2023

In Constitutional, Environmental, Supreme Court of Canada

By: David V. Wright

Case Commented On: Reference re Impact Assessment Act, 2023 SCC 23 (CanLII)

PDF Version: Not Plenary, but Not Nothing Either: Greenhouse Gas Emissions in the Supreme Court Opinion on the (un)Constitutionality of the Federal Impact Assessment Regime

The Supreme Court of Canada (SCC) recently released its opinion on the constitutionality of the federal impact assessment (IA) regime. In a 5:2 majority opinion, Chief Justice Richard Wagner concluded that much of the scheme is unconstitutional for projects falling primarily within provincial jurisdiction. ABlawg has published initial reflections (see here and here), as well as a primer.

One aspect of the majority opinion and any forthcoming legislative amendments that is in need of further attention is the Court’s analysis of greenhouse gas emissions. This post focuses on that aspect. In short, the majority reiterated that there is no plenary federal power to regulate greenhouse gas emissions, and found that Canada had not adequately made the legal argument to support inclusion of a designated project’s greenhouse gas emissions as a basis for triggering the Impact Assessment Act, SC 2019, c 28, s 1 (IAA) or for making final decisions. However, the majority left the door open on this aspect, while also clarifying that there are no constitutional constraints during the assessment phase (i.e. information gathering phase) of the federal process. At the present juncture, the SCC opinion provides some valuable additional clarity regarding greenhouse gas emissions, but very far from total clarity. Uncertainty remains, and that is unfortunate. In the following discussion, I lay out what the majority said and did not say on greenhouse gas emissions, what that means, and what’s next.

Category: Constitutional Page 4 of 72

What Does La Rose Tell Us About Climate Change Litigation in Canada?

Locating the Constitutional Guardrails on Federal Environmental Decision Making after Reference re: Impact Assessment Act

Gender-Affirming Names and Pronouns, Parental Control, and Family Violence

Religious Freedom and the Oath to the Sovereign

Not Plenary, but Not Nothing Either: Greenhouse Gas Emissions in the Supreme Court Opinion on the (un)Constitutionality of the Federal Impact Assessment Regime