Category Archives: Constitutional

Safe Sites for Illegal Drug Consumption: In Need of Insight

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Legislation / case commented on: Bill C-65, An Act to amend the Controlled Drugs and Substances Act, First Session, Forty-first Parliament, 60-61-62 Elizabeth II, 2011-2012-2013 (“Respect for Communities Act”); Canada (AG) v PHS Community Services Society, 2011 SCC 44.

Last week I attended the Law on the Edge conference in Vancouver, which Jonnette Watson Hamilton recently blogged on. One of the highlights for me was a field trip led by UBC Professor Margot Young to visit Insite, Vancouver’s safe injection site for intravenous drug users. Insite was the subject of constitutional litigation that went to the Supreme Court of Canada (see Canada (AG) v PHS Community Services Society and previous ABlawg posts on the case here and here). In brief, the Supreme Court ordered the federal Minister of Health to extend Insite’s exemption under the Controlled Drugs and Substances Act, SC 1996, c 19 (CDSA), on the basis that the refusal to do so violated Insite users’ section 7 Charter rights to life, liberty and security of the person in a manner that was arbitrary and grossly disproportionate in light of the government’s aims. In June 2013, the federal government introduced amendments to the CDSA in the so-called “Respect for Communities Act” that would make it more difficult for other communities to open safe injection sites. What does the Insite experience suggest in terms of the impact these amendments might have on other efforts to establish safe injection sites in Canada?

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Roundtable on Quebec v A: Searching for Clarity on Equality

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: Roundtable on Quebec v A: Searching for Clarity on Equality

Case Commented On: Quebec (Attorney General) v A, 2013 SCC 5 (case summary available here)

On May 13, 2013, we led the Faculty of Law’s first roundtable discussion of the summer on the Supreme Court’s most recent equality rights decision, Quebec (Attorney General) v A. Participants included faculty members, researchers from the Alberta Civil Liberties Research Centre and Alberta Law Reform Institute, and a number of JD and graduate students. Coincidentally, a virtual roundtable on the case is also ongoing at the moment, moderated by Sonia Lawrence, Director of Osgoode Hall’s Institute for Feminist Legal Studies (IFLS), with participation from law profs Robert Leckey, Hester Lessard, Bruce Ryder, and Margot Young. Many of the issues raised in the IFLS discussion were also debated in our roundtable.

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Independence of the Bar and the Prevention of Money-Laundering

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Case considered: Federation of Law Societies of Canada v Canada (Attorney General) 2013 BCCA 147.

Introduction

On April 4, 2013 the British Columbia Court of Appeal issued its decision in Federation of Law Societies of Canada v Canada (Attorney General), 2013 BCCA 147 which upheld the earlier decision of a chambers judge that aspects of Canada’s money-laundering legislation violate section 7 of the Charter of Rights and Freedoms and cannot be saved under section 1.

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The Harm of Hate Speech: Are Media Responses Knee Jerk, Impulsive and Thoughtless?

PDF version: The Harm of Hate Speech: Are Media Responses Knee Jerk, Impulsive and Thoughtless?

Case commented on: Saskatchewan Human Rights Commission v Whatcott, 2013 SCC 11 (CanLii).

It is difficult to find balanced or thoughtful responses from the media on the subject of hate speech harms or hate speech laws. Oxford Professor Jeremy Waldron, in his book, The Harm in Hate Speech writes, “The philosophical arguments about hate speech are knee-jerk, impulsive and thoughtless.” This article argues that media responses to hate speech are likewise.

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Under the Influence: The Alberta Court of Appeal and the Test for Discrimination

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Cases commented on: Wright v College and Association of Registered Nurses of Alberta (Appeals Committee), 2012 ABCA 267, leave to appeal denied, 2013 CanLII 15573 (SCC); Lethbridge Regional Police Service v Lethbridge Police Association, 2013 ABCA 47, leave to appeal application filed, April 15, 2013, SCC

On March 28, 2013 the Supreme Court of Canada denied leave to appeal in the case of Wright v College and Association of Registered Nurses of Alberta. Linda McKay-Panos blogged on that case here; it involves a claim of discrimination by two nurses with opioid addictions who were disciplined by their professional association after stealing narcotics from their employers. A majority of the Alberta Court of Appeal (per Slatter, JA, Ritter JA concurring) held that there was no discrimination and thus no duty to accommodate the nurses, using an approach that focused on stereotyping, prejudice and arbitrariness. Writing in dissent, Justice Berger undertook a traditional prima facie discrimination analysis and decided that the nurses had experienced discriminatory treatment. This split reflects a wider uncertainty about the appropriate test for discrimination under human rights law, and in particular the extent to which the approach to discrimination under section 15 of the Charter should have an influence. In the Supreme Court’s most recent human rights judgment, Moore v British Columbia (Education), 2012 SCC 61 (per Abella J), the Court declined to explicitly clarify the proper test, yet implicitly indicated that the traditional prima facie approach to discrimination is correct. Perhaps that is why the Court decided not to hear the appeal in Wright, which was decided before Moore.  A more recent Court of Appeal decision, Lethbridge Regional Police Service v Lethbridge Police Association, was decided after Moore, yet Justices Martin, Watson and Slatter maintained a focus on stereotyping as the defining feature of discrimination. Worse, Lethbridge Police seems to impose additional burdens on complainants in human rights cases. This post will critically consider the Alberta Court of Appeal’s approach to discrimination and argue that the Supreme Court should grant leave to appeal in Lethbridge Police to clarify the proper test.

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