Category: Constitutional Page 56 of 75

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

On February 6, 2012

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.

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

By Melissa Luhtanen

On January 12, 2012

In Constitutional, Family

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.

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

By Jennifer Koshan

On January 11, 2012

In Access to Justice, Civil Procedure, Constitutional

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).

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

By Jennifer Koshan

On December 8, 2011

In Constitutional, Criminal, Family, Human Rights

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.

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

By Geoff Ellwand

On November 18, 2011

In Constitutional

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

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.