Category: Constitutional Page 60 of 71

By: Jennifer Koshan

PDF Version: ABlawg’s Top Cases and Legal Developments from the 2000s, and a Vote for Dunmore

Case Commented On: Dunmore v Ontario (Attorney General), 2001 SCC 94

It is the first month of a new year, and the first year of a new decade. Hence, it is a time for lists. Rolling Stone magazine has opined on the top albums, songs and movies of the 2000s, and the Globe and Mail has weighed in on the top 10 nation builders of the last decade. On the legal front, the Globe also lists the top trials of the decade in Canada as well as internationally. The Court has compiled some statistics on the Supreme Court’s output over the 2000s, and plans its own series of posts on the top judgments of the last decade.

Here at ABlawg, some of our bloggers will be writing about the case or legal development they think was most important from the 2000s. Other bloggers will be compiling top ten lists within particular areas of law. In keeping with the focus of ABlawg, our contributions will be linked to the impact the cases or legal developments have had in this province.

My own pick for a case of significance is Dunmore v Ontario (Attorney General), [2001] 3 SCR 1016. Dunmore was hailed for its recognition that the Charter may impose positive obligations on government. In this case, the obligation arose in the context of including agricultural workers within labour relations legislation as an aspect of freedom of association under section 2(d) of the Charter. While Dunmore hedged on the issue of whether the government had a duty to include protections for collective bargaining, it opened the door for the Court’s later finding that there was such a duty in Health Services and Support – Facilities Subsector Bargaining Assn. v British Columbia, [2007] 2 SCR 391.

Charter Freedoms and Government Duties around Street Preaching: An (Overly?) Expansive View

By Jennifer Koshan

On December 29, 2009

In Constitutional, Municipal Law

Case considered: R. v. Pawlowski, 2009 ABPC 362

PDF version: Charter Freedoms and Government Duties around Street Preaching: An (Overly?) Expansive View

Earlier this month, Judge Allan Fradsham of the Alberta Provincial Court handed down a lengthy and far reaching judgment dealing with religious freedom, freedom of expression, and government duties to write laws that are not vague or overbroad. Numerous charges against Artur Pawlowski for actions associated with ministering in public spaces were dismissed by Judge Fradsham. I have been a fervent critic of the courts’ extreme deference to government in several Charter cases, but the level of government accountability and limits on government action established in this case may go too far the other way.

Supreme Court Denies Equality Claimants Leave to Appeal Insurance Cap

By Jennifer Koshan

On December 17, 2009

In Constitutional, Insurance Law, Supreme Court of Canada

By: Jennifer Koshan

PDF Version: Supreme Court Denies Equality Claimants Leave to Appeal Insurance Cap

Case Commented On: Morrow v Zhang, 2009 ABCA 215, leave to appeal dismissed by S.C.C. December 17, 2009

The Supreme Court has denied Peari Morrow and Brea Pederson leave to appeal the Alberta Court of Appeal ruling that upheld the province’s cap on non-pecuniary damages for soft tissue injuries incurred in motor vehicle accidents. Previous posts on ABlawg critiqued the Court of Appeal decision for (1) failing to apply the new approach to equality rights set down in R v Kapp, 2008 SCC 41, (2) improperly applying the old approach to equality rights from Law v Canada, Minister of Employment and Immigration), [1999] 1 S.C.R. 497, (3) giving insufficient weight to evidence of stereotyping in relation to victims of minor tissue injuries, and (4) giving too much weight to the purpose of the law at the expense of its effects on those victims (see Some Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries and More Questions about the Decision to Reinstate the Cap on Damages for Soft Tissue Injuries).

Court of Queen’s Bench Overturns Panel Decision in Boissoin v. Lund

By Linda McKay-Panos

On December 9, 2009

In Constitutional, Human Rights

Case considered: Boissoin v. Lund, 2009 ABQB 592

PDF version: Court of Queen’s Bench Overturns Panel Decision in Boissoin v. Lund

Justice Earl Wilson of the Alberta Court of Queen’s Bench recently overturned the Human Rights Panel decision, which found that Mr. Stephen Boissoin and the Concerned Christian Coalition Inc. had, in a letter to the editor of a newspaper published June 17, 2002, expressed comments likely to expose gay persons to hatred and/or contempt due to their sexual orientation. See my earlier ABlawg posts on the Panel decision and the remedy decision.

Court upholds Alberta’s Hate Speech Law

By Jennifer Koshan

On December 7, 2009

In Constitutional, Human Rights

Case considered: Boissoin v. Lund, 2009 ABQB 592

PDF version: Court upholds Alberta’s Hate Speech Law

Back in September, I predicted the failure of a constitutional challenge to Alberta’s hate speech law, section 3 of the Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14 (HRCMA) (recently re-enacted as the Alberta Human Rights Act, R.S.A. 2000, c. A-25.5). The law was challenged by Stephen Boissoin on both division of powers and Charter grounds as part of his effort to overturn an earlier decision of the Alberta Human Rights Panel which found that Boissoin had engaged in hate speech for his letter to the editor “Homosexual Agenda Wicked”, published in the Red Deer Advocate. On December 3, 2009 Justice Earl Wilson of the Court of Queen’s Bench upheld the constitutionality of section 3. However, he also found that Boissoin’s publication did not amount to hate speech under that section. I will deal with the constitutional issues in this post; Linda McKay Panos will be posting on the interpretive issues.