Category Archives: Constitutional

The Manitoba Métis Case and the Honour of the Crown

PDF version: The Manitoba Métis Case and the Honour of the Crown

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.

Continue reading →

Selling Drug Paraphernalia a Pithy Criminal Substance

PDF version: Selling Drug Paraphernalia a Pithy Criminal Substance

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.

Continue reading →

Domestic Violence and Duress: In Search of a Contextual Approach

PDF version: Domestic Violence and Duress: In Search of a Contextual Approach

Case commented on: R v Ryan, 2013 SCC 3.

 On Friday January 18, the Supreme Court released its decision in R v Ryan.  In a decision written by Justices LeBel and Cromwell, the Court held that Nicole Doucet (formerly Ryan) could not avail herself of the defence of duress in circumstances where she attempted to hire someone to kill her abusive husband.  This ruling followed Ms Doucet’s acquittal for counselling murder at trial, which was upheld by the Nova Scotia Court of Appeal. Although the Supreme Court paid some attention to Ms Doucet’s circumstances by ultimately staying the proceedings against her (with Fish, J dissenting on this point), its analysis of the defence of duress was sorely lacking in context.

Continue reading →

Random Drug and Alcohol Testing Policy Implicates Safety, Privacy, Human Rights and Civil Liberties

PDF version: Random Drug and Alcohol Testing Policy Implicates Safety, Privacy, Human Rights and Civil Liberties

Case commented on: Communications, Energy and Paperworkers Union, Local 707 v Suncor Energy Inc. 2012 ABCA 307 (“CA”)

The issue of random drug and alcohol testing in the workplace has now reached national importance.  The Supreme Court of Canada recently granted leave to appeal in such a case.  See:  Communication, Energy and Paperworkers Union of Canada, Local 30, v Irving Pulp & Paper Ltd., 2011 NBCA, leave to appeal to Supreme Court of Canada (“SCC”) granted: 2012 CanLII 14844 (SCC), (“Irving”).  It is likely the SCC will hear this case in December 2012 (Jeff Gray, “Supreme Court to rule on random alcohol testing” The Globe and Mail 08 May 2012).  Alberta has a keen interest in the outcome of this case as it has its own pending cases.

Continue reading →