Category Archives: Constitutional

British Columbia Supreme Court Releases Reference Decision on Polygamy – One Alberta Connection

By: Linda McKay-Panos

PDF Version: British Columbia Supreme Court Releases Reference Decision on Polygamy – One Alberta Connection

Case Commented On: Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588

In 2005, Brian Seaman, Melissa Luhtanen and I, on behalf of the Alberta Civil Liberties Research Centre (ACLRC), were engaged by Status of Women Canada to research and comment on specific issues with regard to Criminal Code section 293 (anti-polygamy provision). Our conclusions may have been surprising to some people because it appeared that we erred on the side of equality at the expense of civil liberties. However, the recent British Columbia Supreme Court (BCSC) decision, at least temporarily, as it may be overruled on appeal, seems to have vindicated our position. Looking at the list of intervenors (11 of them) and the length of the judgment itself, it seems that the Court dealt with the issues in a comprehensive manner.

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Senate Reform on the Horizon: Does the Parliament of Canada have the power to unilaterally change the terms and selection method of Senators?

PDF version: Senate Reform on the Horizon: Does the Parliament of Canada have the power to unilaterally change the terms and selection method of Senators? 

Legislation considered: Bill C-7, An Act respecting the selection of senators and amending the Constitution Act, 1867 in respect of Senate term limits (“Senate Reform Act”), 41st Parliament, 1st Session

After a very long journey, Canadians may be reaching the end of the long road to Senate reform. In the recently introduced Senate Reform Act the federal government is proposing a framework for electing senate nominees, and proposing to significantly reduce Senator term limits. Questions have been raised about Parliament’s unilateral ability to effect these reforms without provincial consent. This comment will explore the constitutional validity of the Senate Reform Act in terms of Parliament’s jurisdiction to unilaterally amend the Canadian Constitution. It will be suggested that while the proposed term limit is likely constitutionally valid, the proposed framework and legal obligation of the Prime Minister to consider elected Senate nominees is beyond Parliament’s sole power.

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Non-Biological Father from Separated Same-Sex Couple Declared a Legal Parent

By: Melissa Luhtanen

PDF Version: Non-biological Father from Separated Same-Sex Couple Declared a Legal Parent 

Case Commented On: D.W.H. v D.J.R., 2011 ABQB 608

Background

Mr. H. and Mr. R. lived together as partners and planned to have a baby through a surrogate mother. Mr. R’s sperm was used to conceive the baby, S, with Ms. D as the surrogate mother. Ms. D lived with the two fathers and Mr. R when the baby was first born. After that, the baby lived with the two male partners and visited the surrogate mother once or twice a week. The couple separated when S was 3 years old and Mr. H. applied for access. Madame Justice Eidsvik in D.W.H. v D.J.R., 2009 ABQB 438 found that the child had a mother (who was the surrogate), but no father who could be recognized in law (see my previous post “Gay fathers not seen as a parental unit under the Family Law Act“). Mr. H was given access until November 2007 when, based on a parenting assessment, contact was discontinued. Mr. H.’s relationship with S has since almost completely ceased. Mr. H. applied for guardianship but his application was opposed.

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“The proof of the pudding is in the eating” that litigation is not the best way to quantify interim costs.

PDF version: “The proof of the pudding is in the eating” that litigation is not the best way to quantify interim costs.

Case considered: R v Caron, 2011 ABCA 385

Gilles Caron has been a very present figure before the Alberta courts since ABlawg began posting comments in late 2007 (see here). Caron is challenging the constitutionality of Alberta’s legislation on the basis that the province’s laws are not enacted in both English and French. That issue is now before the Court of Appeal (see 2010 ABCA 343 and here). Caron’s litigation has also involved an access to justice component in that he has pursued interim costs awards to fund his litigation. That issue went to the Supreme Court of Canada, which ruled that the Alberta government was required to fund Caron’s language rights challenge (see 2011 SCC 5, [2011] 1 SCR 78 and here). The lingering question was, to what extent was such funding required? That issue was recently considered by the Alberta Court of Appeal. In a decision written by Justice Jean Côté, Caron was awarded far less funding than he sought for the Court of Appeal litigation, and in the form of a loan rather than a grant (see 2011 ABCA 385).

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The Repeal of the Long Gun Registry: A Violation of the Federal Government’s Obligations Concerning Violence Against Women?

By: Jennifer Koshan

PDF Version: The Repeal of the Long Gun Registry: A Violation of the Federal Government’s Obligations Concerning Violence Against Women?

Legislation considered: Bill C-19, An Act to amend the Criminal Code and the Firearms Act (“Ending the Long-gun Registry Act”), 41st Parliament, 1st Session

December 6, 2011 was the National Day of Remembrance for Violence Against Women, which marked the 22nd anniversary of the Montreal Massacre. The Globe and Mail‘s Jane Taber indicated that “government MPs [were] purposely shut out from officially speaking at and attending an event on Parliament Hill to honour the 14 young women who were shot dead in 1989,” because the government is about to repeal the long gun registry (see Bill C-19). The Montreal Massacre was one of the pressure points for the registry, as was the use of firearms in crimes of domestic violence. When the Alberta government challenged the constitutionality of the registry, which was implemented via the Firearms Act, SC 1995, ch 39, as an amendment to the Criminal Code, the Supreme Court found that it was properly enacted under the federal government’s criminal law powers (see Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 SCR 783 at paras 43, 59). The enactment of the law creating the registry was constitutional; but is its repeal unlawful? I think an argument can be made that the federal government’s abolishment of the long gun registry is unconstitutional on Charter grounds, as well as contrary to international law.

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