Category Archives: Constitutional

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?

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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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The Manitoba Métis Case and the Honour of the Crown

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Case commented on: Manitoba Métis Federation Inc v Canada (Attorney General), 2013 SCC 14

In its historic decision on the constitutional rights of the Manitoba Métis, the majority of the Supreme Court of Canada, in a decision rendered by the Chief Justice and Justice Karakatsanis (Rothstein and Moldaver JJ dissenting), concluded that section 31 of the Manitoba Act, 1870 (reprinted in RSC 1985, App. II, No. 11) expresses a constitutional obligation to the Métis people of Manitoba to provide Métis children with allotments of land. The majority held that the obligation did not impose a fiduciary or trust duty on the Crown but that it did engage “the honour of the Crown.” The majority held that the Crown failed to live up to the terms of that engagement and that the Métis were accordingly entitled to a declaration to that effect. The claim for declaratory relief in relation to the honour of the Crown was not barred by the law of limitations or the equitable doctrine of laches.

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Selling Drug Paraphernalia a Pithy Criminal Substance

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Case considered: Smith v St Albert (City), 2012 ABQB 780.

In January, 2013, Alberta Court of Queen’s Bench Justice Terry Clackson ruled that a recent St. Albert bylaw that restricted the sale of drug paraphernalia must be struck down, because the bylaw fell outside the jurisdiction of the municipality (i.e., it was ultra vires). The bylaw in this case prohibited the display or sale of more than two products from a list of banned items, including pipes, marijuana grinders or products which display an image of a marijuana leaf. Business establishments that sell these and other forms of drug paraphernalia are sometimes referred to as “bong” or “head” shops, and exist in many municipalities across Canada.

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