Category Archives: Constitutional

Carbon Tax Redux: A Majority of the Alberta Court of Appeal Opines that the Impact Assessment Act is Unconstitutional

By: Martin Olszynski

Opinion Commented on: Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII)

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On May 10, 2022, the Alberta Court of Appeal released its lengthy and long-awaited opinion in Reference re Impact Assessment Act, 2022 ABCA 165 (CanLII). A majority of the Court of Appeal (Chief Justice Fraser, Justice Watson, and Justice MacDonald) concluded that the Impact Assessment Act, SC 2019, c 28, s 1 (IAA), Part 1 of Bill C-69, was ultra vires (i.e. beyond) Parliament’s legislative authority pursuant to section 91 of the Constitution Act, 1867. Justice Strekaf concurred in the result. Justice Greckol dissented, concluding that the IAA was indeed constitutional. In my view, Justice Greckol’s dissent is both clearer and more consistent with current Canadian constitutional and environmental law doctrine. The majority’s opinion, on the other hand, is relatively difficult to follow, includes basic doctrinal errors in some parts, and ignores or strays far from precedent in others. In this and other ways, the majority’s approach is strongly reminiscent of its earlier opinion in Reference re Greenhouse Gas Pollution Pricing Act, 2020 ABCA 74 (CanLII) (GGPPA Reference ABCA) (see post here), which was overturned by the Supreme Court of Canada in References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 (CanLII) (GGPPA References SCC) (see posts here, here, and here). The federal government has already confirmed that it will appeal the majority’s opinion to the Supreme Court, pending which the IAA regime will remain in force (reference opinions not being strictly binding the same way that judgments are). Continue reading →

Does the Punishment Fit the Crime?

By: Lisa Silver

Appeals commented on: R v Hills (SCC Case No 39338), R v Hilbach and the companion appeal, R v Zwozdesky (SCC Case No 39438)

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The week of March 21 was a momentous occasion for criminal law. In that week, over the course of three days, four Supreme Court of Canada appeals were heard that may change our sentencing principles and subsequently our entire conception of a fit and proper sentence. All four cases evoke the Charter in their drive to clarify, confine, and restrain punishment. The Alberta trilogy of R v Hilbach (argued with the companion case R v Zwozdesky), 2020 ABCA 332, and R v Hills, 2020 ABCA 263 all focus on the interpretation and application of s 12 of the Charter in challenging the mandatory minimum penalties of firearm offences. Bissonnette v R, 2020 QCCA 1585 from the Quebec Court of Appeal, on the stacking of the twenty-five-year parole ineligibilities for multiple convictions of first-degree murder under s 745.51, turns to ss 7 and 12 of the Charter. Finally, in R v Sharma, 2020 ONCA 478, ss 7 and 15 are applied to question the unavailability of conditional sentences for certain offences, particularly for Indigenous offenders. This comment will focus on the trilogy of Alberta cases in Hilbach, Zwozdesky, and Hills, which give us a snapshot of those trending issues that the Supreme Court of Canada will be grappling with when writing their decisions for all these appeals. For further ABlawg reading on the concerns with mandatory minimum sentences, see Erin Sheley, “The Next Shot in the Constitutional Debate Over Mandatory Minimum Sentences for Firearms Offences”; and Daphne Wang, “R v EJB: Another Unconstitutional Mandatory Minimum Sentence”. Continue reading →

With a Little Help from the Feds: Incorporation by Reference and Bill C-92

By: Kerry Wilkins

Case Commented On: Renvoi à la Cour d’appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis, 2022 QCCA 185 (CanLII) (unofficial English translation) (Reference)

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According to section 18 of An Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24 (Act or the Act), “[t]he inherent right of self-government recognized and affirmed by section 35 of the Constitution Act, 1982 includes jurisdiction in relation to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority” and “the authority to provide for dispute resolution mechanisms.” As it turns out, the Quebec Court of Appeal tells us in the recent Reference about the Act’s validity (now under appeal to the Supreme Court of Canada; you can read Robert Hamilton’s summary of the decision here), there is indeed such a right, but not because Parliament says so (Reference, at paras 451-453, 514). Continue reading →

Is the Act respecting First Nations, Inuit and Métis children, youth and families Constitutional?

By: Robert Hamilton

PDF Version: Is the Act respecting First Nations, Inuit and Métis children, youth and families Constitutional?

Case Commented On: Reference to the Court of Appeal of Quebec in relation with the Act respecting First Nations, Inuit and Métis children, youth and families, 2022 QCCA 185 (CanLII) [quotations from the unofficial English translation]

Legislation Commented On: Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24

The Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c 24, [the Act] received royal assent on June 21, 2019, and came into force on January 1, 2020. The Act was developed over two years and through wide-ranging consultations. It is designed to gradually transfer control of child and family services to Indigenous nations and, through this, to ensure that fewer Indigenous children are removed from their families and communities. The intention is to mitigate the effects of the assimilationist policies that have been incredibly harmful to Indigenous children, families, and communities. The Act seeks to accomplish this by establishing national standards for the provision of child and family services and by providing a mechanism through which Indigenous laws – that is, the laws of Indigenous nations themselves – can take priority over inconsistent federal and provincial laws and govern the delivery of child and family services to Indigenous peoples (Reference to the Court of Appeal of Quebec in relation with the Act respecting First Nations, Inuit and Métis children, youth and families, 2022 QCCA 185 (CanLII), paras 4-5 [Reference]). Although it has faced thoughtful and considered criticism, it is clear the Act seeks to substantially change how child and family services are provided and to transition the governance and regulation of those services to Indigenous peoples. Continue reading →

Women’s Charter Equality before the Supreme Court of Canada: Where Do We Stand as of International Women’s Day 2022?

By: Jonnette Watson Hamilton & Jennifer Koshan

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Matter Commented On: International Women’s Day 2022

March 8 is International Women’s Day (IWD), a day on which we assess the progress towards achieving women’s rights. The theme this year is “Break the Bias.” We are encouraged to “Imagine a gender equal world. A world free of bias, stereotypes, and discrimination. A world that is diverse, equitable, and inclusive. A world where difference is valued and celebrated.” When considering women’s rights under Canadian law, we tend to use the lenses of discrimination and equality as the umbrella words rather than bias. Bias is certainly one form of discrimination, but discrimination also includes the harms of stereotyping, prejudice, and disadvantage. The right to equality and to be free from discrimination based on protected grounds is guaranteed under s 15 of the Canadian Charter of Rights and Freedoms, Canada’s constitutional equality guarantee. Continue reading →