Category Archives: Constitutional

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

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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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“Safe and enjoyable and reasonable use”: Of public space, public fighting and Edmonton’s defence of its Public Places Bylaw

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Case considered: R v Keshane, 2011 ABQB 525

A recent Alberta Court of Queen’s Bench decision, R v Keshane, 2011 ABQB 525 (“Keshane“) has further refined the contentious, and important issue of how much control a municipal authority can have over shared public space. The judgment in Keshane decisively rejected a defence that the passage and application of a City of Edmonton bylaw prohibiting public fighting was beyond the power of the municipal government. In its judgment the court concluded that Edmonton’s Public Places Bylaw was a valid exercise of municipal authority because (at para 118) “in pith and substance it relates to the purpose of providing safe and enjoyable public places for the benefit of all residents of and visitors to the City…”. The court determined that as a consequence the bylaw fell within provincial authority “as either or both a matter of property and civil rights in the province under subsection 92(13) of the Constitution Act, 1867 or a matter of merely local nature under section 92(16).” The Queen’s Bench judgment overturned an earlier lower court decision R v Keshane, 2010 ABPC 275 (per Judge D.M. Groves) which reached almost exactly the opposite conclusion. The Queen’s Bench judgment is the latest in a string of recent cases in both Alberta and British Columbia in which Constitutional challenges have been launched against municipal restrictions on activities in public space.

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Should They Stay or Should They Go? Occupy, The City and the Charter

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I’ve been to Zuccotti Park in New York City, the base camp of Occupy Wall Street, a few times this fall. The first time was in early October, the day before Mayor Michael Bloomberg told the protestors they had to de-occupy the park for a day to allow a clean-up. The de-occupation was resisted and never happened; the occupiers are still there, sometimes under tarps and in tents. Bloomberg and the City started out as relatively supportive of the occupation, but that support has waned over time with complaints from some nearby residents and business owners about the noise emanating from the Park, as well as concerns about unsanitary conditions, drug use, and assaults (Cara Buckley and Colin Moynihan, “Occupy Wall Street Protest Reaches a Crossroads“, New York Times, Nov. 4, 2011). Similar waning of support is occurring in Canadian cities. Vancouver has now brought an application for a court order that Occupy Vancouver take down their tents from the space in front of the Art Gallery after a 23 year old woman was found dead in her tent, the second apparent drug overdose in a week (Rod Mickleburgh, “Vancouver’s bid to end Occupy protest encampment stalls in court“, Globe and Mail, Nov. 9, 2011). In Calgary, City Council voted on November 7 to order the removal of Occupy Calgary tents from Olympic Plaza (CBC News, “City to remove Occupy Calgary tents in Olympic Plaza“, Nov. 7, 2011). What does the law say about all of this, and in particular, is the Globe and Mail’s recent editorial correct that “There is no constitutional right to Occupy“?

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SCC Wrongly Accused of “Judicial Activism” in Recent Insite Case

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Decision considered: Canada (A.G.) v PHS Community Services Society (“Insite“)

The recent SCC judgment in the Insite case has been said to “threaten peace between judges and legislators” (see Kirk Makin, “Landmark Insite decision threatens peace between judges and legislators” October 10, 2011 Globe and Mail Online (Makin). I am not sure that I agree with this sentiment.

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