Category Archives: Constitutional

Using water reservations to protect the aesthetic values associated with water courses: a note on the Spray River (Banff)

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Documents commented on: Order in Council 546\49; South Saskatchewan Basin Water Allocation Regulation, Alta. Reg. 307/1991 (rescinded by Bow, Oldman and South Saskatchewan River Basin Water Allocation Order, Alta. Reg. 171/2007); Alberta Environment, TransAlta Utilities (TAU) licence for the Spray River development.

I have been doing some work on Crown water reservations over the last few months and in the course of that came across an example of what at first glance seemed to be the use of a water reservation to preserve the aesthetic qualities of a watercourse. The example also has an interesting constitutional twist that is worth reflecting on.

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Interpreting Section 15(2) of the Charter: LEAF’s Intervention in Alberta (Minister of Aboriginal Affairs and Northern Development) v Cunningham

By: Jonnette Watson Hamilton

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Cases Commented On: Her Majesty the Queen in Right of Alberta (Minister of Aboriginal Affairs and Northern Development), et al. v Barbara Cunningham, et al. (Alberta) (Civil) (By Leave) Case number 33340, on appeal from Cunningham v Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 239

The Supreme Court of Canada is scheduled to hear the appeal of the Alberta government in Alberta (Minister of Aboriginal Affairs and Northern Development) v Cunningham on Thursday, December 16, 2010. Cunningham will be the first case in which the Supreme Court considers the application of section 15(2) of the Charter since that Court gave independent meaning to section 15(2) in R v Kapp, 2008 SCC 41 and the first case in which the Court must consider the possible application of section 15(2) when the challenge is on the basis of under-inclusiveness. This comment is based on my experience serving on the Women’s Legal Education and Action Fund (LEAF) case subcommittee in Cunningham, the factum filed by LEAF, and, to a much lesser extent and only to offer a contrast, the facta of the Appellants and the Attorney General of Ontario.

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Leave to Appeal Granted in Language Rights Case

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Case Considered: R. v. Caron, 2010 ABCA 343

Gilles Caron was charged with a traffic violation under Alberta’s Use of Highways and Rules of the Road Regulations, A.R. 304/2002, back in 2003. He sought to defend himself against that charge on the ground that Alberta legislation is unconstitutional because it is not enacted in both English and French. Caron’s case has two important dimensions to it. First, he argued that he was entitled to an interim costs award to permit him to pursue his language rights challenge, relying on British Columbia (Minister of Forests) v. Okanagan Indian Band, [2003] 3 S.C.R. 371. This argument was successful at the Court of Queen’s Bench (see Special Enough? Interim Costs and Access to Justice) and at the Court of Appeal (see Interim Costs Order Upheld in Language Rights Case). The Supreme Court granted the Alberta government leave to appeal in August 2009, and heard the appeal on the interim costs issue on April 13, 2010.

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Facebook and Freedom of Expression

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Case considered: Pridgen v University of Calgary, 2010 ABQB 644

Pridgen v University of Calgary involves twins Keith Pridgen and Steven Pridgen, two students at the University of Calgary who were enrolled in the Faculty of Communications and Culture in the fall of 2007. Both students participated in posting comments to a Facebook Wall created by a fellow student, under the name of “I NO Longer Fear Hell, I Took a Course with Aruna Mitra.” Professor Mitra was teaching a Law and Society course, namely LWSO 201, which the Applicants were taking.

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Unconstitutional Regulatory Offences: Too Much and Too Little at Stake

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Case considered: R. v. Keshane, 2010 ABPC 275

In a thorough 22 pages, Provincial Court Judge Donna Groves acquitted Renada Lee Keshane of a $500 ticket for fighting in public. Ms. Keshane was ticketed under a decade-old provision of Edmonton’s Public Places Bylaw, Bylaw 14614, which, the Court ruled, violates the constitutional division of powers. While the cost of litigating this ticket almost certainly dwarfed the fine at stake, constitutional review of bylaw offences is predictably and disturbingly sparse. “Fighting in Public” and similar provisions impose considerable limits on behaviour, but are rarely worthwhile to litigate. The potential result is the injustice of a longstanding unconstitutional provision.

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