Category: Constitutional Page 9 of 72

Critical Infrastructure Defence Act Charter Challenge Survives Alberta Government’s Motion to Strike

Case Commented On: Alberta Union of Public Employees v Her Majesty the Queen (Alberta), 2021 ABQB 371 (CanLII)

Last summer we posted a critical analysis of Alberta’s Bill 1, the Critical Infrastructure Defence Act, SA 2020, c C-32.7 (CIDA). We argued that CIDA, which prohibits unlawfully entering onto, damaging, or obstructing any “essential infrastructure” in the province, violates several sections of the Canadian Charter of Rights and Freedoms, including freedom of expression (s 2(b)), freedom of peaceful assembly (s 2(c)), freedom of association (s 2(d)), the right to liberty (s 7) and the right to equality (s 15). Shortly after CIDA took effect on June 7, 2020, the Alberta Union of Provincial Employees (AUPE) and three individual plaintiffs brought a constitutional challenge against the law, arguing that it violates those Charter rights and freedoms (with the exception of s 15, which was not raised), as well as sections 1(a), (c), and (d) of the Alberta Bill of Rights, RSA 2000, c A-14 (which protect similar rights as well as the right to enjoyment of property). The plaintiffs also contended that CIDA encroaches on federal jurisdiction under The Constitution Act, 1867, namely, s 91(27) (federal jurisdiction over criminal law) and s 92(10)(a) (federal jurisdiction over interprovincial works and undertakings). In a decision released in June, Justice Shaina Leonard of the Alberta Court of Queen’s Bench dismissed the government’s motion to strike the challenge.

The Curious Demise of Alberta’s Turn Off the Taps Legislation

By Nigel Bankes

On May 18, 2021

In Constitutional, Energy, Federal Court

By: Nigel Bankes, Andrew Leach and Martin Olszynski

PDF Version: The Curious Demise of Alberta’s Turn Off the Taps Legislation

Matters Commented On: Alberta (Attorney General) v British Columbia (Attorney General), 2021 FCA 84 (CanLII) reversing British Columbia (Attorney General) v Alberta (Attorney General), 2019 FC 1195 (CanLII), and Preserving Canada’s Economic Prosperity Act, SA 2018, c P-21.5

The Turn Off the Taps legislation ((or, more properly, Preserving Canada’s Economic Prosperity Act, SA 2018, c P-21.5) (PCEPA)) was passed under the Notley government in 2018. There have always been serious doubts as to the constitutional validity of the legislation (for discussion of the principal objections to the legislation, see ABlawg here) and it is hardly surprising that the Attorney General of British Columbia (AGBC) commenced actions first in the Alberta Court of Queen’s Bench and later in the Federal Court seeking to test the validity of the Act. As described by a majority of the Federal Court of Appeal in Alberta (Attorney General) v British Columbia (Attorney General), 2021 FCA 84 (CanLII) [Turn off the Taps IV], the AGBC had two main arguments. The first was that PCEPA is inconsistent with s 121 of the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3; the second was that the PCEPA is a law in relation to interprovincial trade that falls outside the protection offered by s 92A(2) of the Constitution Act, 1867, the so-called ‘resource amendment’ to the Constitution. In particular, the AGBC noted that s 92A only protects laws pertaining to “primary production” as defined in the Sixth Schedule, and yet the PCEPA purported to apply to refined fuels which fell outside that definition. The Sixth Schedule provides as follows:

Harnessing the Power of AI Technology; A Commentary on the Law Commission of Ontario Report on AI and the Criminal Justice System

By Lisa Silver

On November 18, 2020

In Constitutional, Criminal

By: Lisa Silver and Gideon Christian

PDF Version: Harnessing the Power of AI Technology; A Commentary on the Law Commission of Ontario Report on AI and the Criminal Justice System

Report Commented On: Law Commission of Ontario, The Rise and Fall of AI and Algorithms In American Criminal Justice: Lessons for Canada, (Toronto: October 2020).

The Law Commission of Ontario (LCO) recently released its Report on the use of artificial intelligence (AI) and algorithms in the Canadian criminal justice system. The Report, which is the first of three papers on the issue, is one of the most comprehensive discussions of the use of AI and algorithmic technologies in the criminal justice system to date. In Canada, AI use in the criminal justice system is limited and not easily subject to in-depth review. In the United States, however, AI and algorithms are used extensively throughout the justice system, particularly in pre-trial release decision-making. Not surprisingly, then, the Report draws from this American experience to arrive at a number of recommendations for application to the Canadian context. Based on those lessons learned, the LCO Report warns of “the risk of adopting unproven and under-evaluated technologies too quickly to address long-standing, complex and structural problems in the justice system” (at 7). Yet, in the midst of this cautionary tone, the Report also recognizes that AI use in the criminal justice system will likely increase in the future. The Report proactively outlines a framework for such use by urging AI regulation, the application of legal protections to AI, and community involvement in developing AI best practices. All of these warnings and recommendations are extremely useful but the Report begs the basic question of whether the justice system should be using machine intelligence, with its embedded biases, in matters that can profoundly change people’s lives. Ultimately, the Report should stand as a timely reminder of the unharnessed power of technology and the realistic potential for injustice when it is used without restraint.

Tugging at the Strands: Adverse Effects Discrimination and the Supreme Court Decision in Fraser

By Jennifer Koshan

On November 9, 2020

In Constitutional, Equality, Supreme Court of Canada

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: Tugging at the Strands: Adverse Effects Discrimination and the Supreme Court Decision in Fraser

Case Commented On: Fraser v Canada (Attorney General), 2020 SCC 28 (CanLII)

On October 16, 2020, the Supreme Court of Canada released its long-awaited decision in Fraser v Canada (Attorney General), 2020 SCC 28 (CanLII). Fraser involved a claim of adverse effects discrimination by female RCMP members who lost their entitlement to full pension benefits when they entered temporary job-sharing arrangements. We blogged on the Federal Court of Appeal decision in Fraser here, and – in the interests of disclosure – also participated in the Supreme Court intervention in Fraser by the Women’s Legal Education and Action Fund (LEAF) (for LEAF’s news release following the Fraser decision, see here).

Fraser is the first successful adverse effects claim under section 15 of the Canadian Charter of Rights and Freedoms in over 20 years and it is the first ever successful adverse effects claim under section 15 in a sex discrimination context. This post will focus on the typical challenges that have been faced in adverse effects claims and review how Justice Rosalie Abella’s majority decision in Fraser responded to these problem areas, which were also apparent in the lower court decisions in Fraser. Although Justice Abella wrote for the majority of the Court (Chief Justice Richard Wagner and Justices Michael Moldaver, Andromache Karakatsanis, Sheilah Martin and Nicholas Kasirer, as well as herself), we will refer to the judgment as hers because it appears to be the culmination of her life-long work on equality rights and may be her last judgment on this subject before her retirement in 2021.

We also review the two dissenting judgments in Fraser, written by Justices Russell Brown / Malcolm Rowe and Justice Suzanne Côté. Our title is inspired by Justice Abella’s allegation that the dissent “tug[s] at the strands of a prior decision they disagree with … [to] unravel the precedent” (at para 133, referring to Alliance, one of the Court’s two 2018 pay equity decisions that we cite below). Interestingly, the same could be said of the majority judgement, which unravels the knots of a large body of section 15 jurisprudence that has made it difficult to prove adverse effects discrimination claims. It is these problem areas that we turn to next.

Church of Atheism of Central Canada v MNR: Charitable Status for Atheists and the Triviality of Religious Freedom Infringements

By Kathryn Chan

On November 3, 2020

In Constitutional, Federal Court

By: Kathryn Chan & Howard Kislowicz

PDF Version: Church of Atheism of Central Canada v MNR: Charitable Status for Atheists and the Triviality of Religious Freedom Infringements

Case Commented On: Church of Atheism of Central Canada v MNR, 2019 FCA 296 (CanLII)

On October 29, the Supreme Court of Canada denied leave to appeal in Church of Atheism of Central Canada v MNR, 2019 FCA 296 (CanLII), a charitable registration appeal that raised questions about the constitutionality of according tax privileges to a class of “religious” charities in Canada. This result is unsurprising. The decision of the Federal Court of Appeal was unanimous and the Church of Atheism was not represented by counsel. The evidentiary record was probably sparse, since the evidentiary record in charitable registration appeals is limited to the documents in the Canada Revenue Agency’s file at the time that registration is denied. Nevertheless, Church of Atheism of Central Canada v MNR raised important legal issues that affect the largest segment of Canada’s charitable sector. This post discusses several issues that are likely to re-emerge in a future case.