Category: Constitutional Page 61 of 71

On October 15, 2009 the Supreme Court of Canada denied a motion to re-hear the case of Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37. In that case, a majority of the Supreme Court denied the Hutterian Brethren’s claim that its members should be exempted from provincial photo requirements for driver’s licences based on freedom of religion. The Supreme Court did not provide any reasons for its decision, stating only as follows in a news release:

Alberta’s Hate Speech Law Under Challenge

By Jennifer Koshan

On September 21, 2009

In Constitutional, Human Rights

Case considered: Boissoin and the Concerned Christian Coalition Inc. v. Lund, currently before the Alberta Court of Queen’s Bench

PDF version: Alberta’s Hate Speech Law Under Challenge

There has been much talk recently of whether hate speech laws are properly included in human rights legislation. When Alberta moved to amend its human rights legislation in 2009, some argued that section 3 of Alberta’s Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14 (HRCMA), our hate speech law, should be amended or repealed altogether. A 2008 report by Richard Moon recommended that the analogous provision in the Canadian Human Rights Act, R.S.C. 1985, c.H-6 (CHRA), section 13, should be repealed and that the hate speech provisions of the Criminal Code, R.S.C. 1985, c. C-46, should be used instead. Most recently, in Warman v. Lemire, 2009 CHRT 26, the Canadian Human Rights Tribunal held that section 13 of the CHRA violated freedom of expression as guaranteed by section 2(b) of the Charter, and could not be justified as a reasonable limit under section 1 of the Charter. The tribunal thus refused to apply section 13 and declined to grant a remedy against the respondent, Lemire, even though his actions met the definition of hate speech. These developments will all be significant in the case of Boissoin and the Concerned Christian Coalition Inc. v. Lund, where the appellant, along with interveners the Canadian Civil Liberties Association and the Canadian Constitution Foundation, are challenging the constitutionality of section 3 of the HRCMA before the Alberta Court of Queen’s Bench.

R. v. Syncrude Canada: The Case of The 500 (or was that 1600) Dead Ducks

By Shaun Fluker

On September 16, 2009

In Constitutional, Environmental

PDF Version: R. v. Syncrude Canada: The Case of The 500 (or was that 1600) Dead Ducks

In a Provincial Court appearance on September 14, 2009, Syncrude Canada pled not guilty to charges laid by Alberta Environment and Environment Canada in relation to the toxic substances in its Aurora Mines tailing pond that resulted in the death of 1600 migratory birds in 2008 (the number of birds was initially thought to be 500, but was revised upwards to 1600 after further investigation). ABlawg has followed this regulatory saga from its inception in January 2009 (see previous posts by myself (R. v. Syncrude Canada: The Case of The 500 Dead Ducks and Environmental Private Prosecution Update: John Custer v. Syncrude Canada) and Jocelyn Stacey (Lame duck constitutional arguments: a new twist on Syncrude’s Tailings Pond Debacle).

Supreme Court of Canada undermines Trial Judges’ discretion under Charter s. 24(1)

By Anne Stalker

On September 10, 2009

In Constitutional, Criminal

Cases Considered: Bjelland v. The Queen, 2009 SCC 38

PDF Version: Supreme Court of Canada undermines Trial Judges’ discretion under Charter s. 24(1)

In Bjelland v. The Queen, 2009 SCC 38, the Supreme Court of Canada considered the question of whether faulty disclosure by the Crown could lead to the exclusion of the evidence concerned under s. 24(1) of the Charter. The majority, in a 4-3 decision, developed a test for the exclusion of evidence under s. 24(1) and applied it in a very restrictive way. This raises concerns about their respect for the discretion of trial judges as granted by s. 24(1) of the Charter.

Post-Kapp Decision May Indicate the Way Discrimination will be Determined in Human Rights Cases

By Linda McKay-Panos

On September 2, 2009

In Constitutional, Human Rights

Case Considered: Van Der Smit v. Alberta (Human Rights and Citizenship Commission), 2009 ABQB 121

PDF Version: Post-Kapp Decision May Indicate the Way Discrimination will be Determined in Human Rights Cases

In the past few years, the application to human rights legislation of precedents established under Canadian Charter of Rights and Freedoms s. 15(1), which set out how a court is to determine whether a claimant has experienced discrimination, was an issue in many Canadian jurisdictions, including Alberta. The issue became more important, when in R. v. Kapp, 2008 SCC 41, the Supreme Court of Canada appeared to re-state (and perhaps even re-formulate) the test from Law v. Canada, [1999] 1 S.C.R. 497, which had been the precedent courts relied on for several years. There are several posts written by ABlawg contributors about the Kapp decision and those which have followed. See, for example: Jonnette Watson Hamilton and Jennifer Koshan, The End of Law: A New Framework for Analyzing Section 15(1) Charter Challenges.

Category: Constitutional Page 61 of 71

Motion for Re-hearing of Hutterian Brethren Case Dismissed by Supreme Court of Canada

Alberta’s Hate Speech Law Under Challenge

R. v. Syncrude Canada: The Case of The 500 (or was that 1600) Dead Ducks

Supreme Court of Canada undermines Trial Judges’ discretion under Charter s. 24(1)

Post-Kapp Decision May Indicate the Way Discrimination will be Determined in Human Rights Cases