As reported on Slaw, the Women’s Court of Canada embarked on a western Canadian tour last week, including stops in Edmonton on March 12 and Calgary on March 13. According to Michael Lines’ post on Slaw, “As a rock group they are pretty unplugged, but as an educational experience, they … rock!”So who is the Women’s Court of Canada (WCC)? Taking our inspiration from Oscar Wilde, who said “the only duty we owe to history is to rewrite it”, we are a group of academics, litigators and activists who are re-writing equality rights law. The first six judgments of the WCC (in Symes v. Canada, [1993] 4 S.C.R. 695; Native Women’s Association of Canada v. Canada, [1994] 3 S.C.R. 627; Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241; Law v. Canada, [1999] 1 S.C.R. 497; Gosselin v. Quebec, [2002] 4 S.C.R. 429; and Newfoundland v. NAPE, [2004] 3 S.C.R. 381) are published in volume 18(1) of the Canadian Journal of Women and the Law and are available electronically on Hein On-Line. Three of the judgments are available on The Court as well. The WCC has plans for a website, including a blog, and students who attended last year’s launch of the WCC in Toronto have created a Facebook group.
Category: Constitutional Page 65 of 71
By: Jennifer Koshan
Case Commented On: Cunningham v Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 53
Jonnette Watson Hamilton and I recently commented on the implications of the Supreme Court of Canada’s decision in R v Kapp, 2008 SCC 41 for the proper approach to equality rights under s.15(1) of the Charter (see The End of Law: A New Framework for Analyzing Section 15(1) Charter Challenges). We also noted that Kapp was more clear in terms of the approach to be taken under s.15(2) of the Charter, giving that section “independent status to protect ameliorative laws, programs and activities.” A recent Alberta case deals with a potential new battleground under s.15(2): government attempts to introduce new evidence to establish the ameliorative purpose of their laws on appeal. If a government is successful in this respect, and the court accepts the ameliorative purpose of the law or program in question, this will effectively serve to bar a claim under s.15(1).
By: Jennifer Koshan and Jonnette Watson Hamilton
PDF Version: The End of Law: A New Framework for Analyzing Section 15(1) Charter Challenges
Case Commented On: Ermineskin Indian Band and Nation v Canada, 2009 SCC 9
After the Supreme Court of Canada handed down its decision in R v Kapp, 2008 SCC 41 in June of 2008 there were questions about whether the Court had changed the legal framework for analyzing challenges brought under section 15(1) of the Charter. Kapp had clearly changed the approach to section 15(2), granting it independent status to protect ameliorative laws, programs and activities. However, on the topic of section 15(1), the Court had sent mixed signals about its intended approach. The message sent by the Court’s February 13, 2009 decision in Ermineskin Indian Band and Nation v Canada is much clearer; the legal framework for analyzing section 15(1) claims will be very different than it has been for the past decade.
Cases Considered: Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9.
PDF Version: The Crown has neither the power nor the duty to invest Indian monies: The use of legislation to limit trust duties
The “money management” part of the long-running Samson\Ermineskin Case has now come to a close. A unanimous seven person panel of the Supreme Court of Canada in a judgement authored by Justice Marshall Rothstein has ruled that the Government of Canada is not liable when it fails to invest First Nation royalty monies and instead deposits those monies to the credit of the Consolidated Revenue Fund (CRF) and pays the First Nations interest on those monies. In fact, the Court has ruled that the Indian Act makes it illegal for the Crown to invest Indian capital monies. The Court also ruled that the provisions of the Act which require this conclusion do not constitute discrimination within the meaning of s.15 of the Charter.
Cases considered: R. v. Caron, 2009 ABCA 34.
PDF Version: Interim Costs Order Upheld in Language Rights Case
Gilles Caron was awarded interim costs in relation to expert and legal fees for a language rights claim that was eventually allowed by the Alberta Provincial Court (see my previous posts La Belle Province? Developments in Alberta Language Rights Cases, Special Enough? Interim Costs and Access to Justice). Caron’s language rights claim is now before the Alberta Court of Appeal, but in the meantime the Court upheld the interim costs order to Caron and clarified the jurisdiction of superior courts to grant such orders in quasi-criminal proceedings in provincial court.