Category: Human Rights Page 6 of 32

The Shrinking Space for Hateful Speech in the Public Square – The Alberta Court of Appeal’s Decision in Canadian Centre for Bio-Ethical Reform v The City of Grande Prairie (City), 2018 ABCA 154

On September 13, 2018

By: Ola Malik, Sasha Best and Jeff Watson

PDF Version: The Shrinking Space for Hateful Speech in the Public Square – The Alberta Court of Appeal’s Decision in Canadian Centre for Bio-Ethical Reform v The City of Grande Prairie (City), 2018 ABCA 154

Case Commented On: Canadian Centre for Bio-Ethical Reform v The City of Grande Prairie (City), 2018 ABCA 154 (CanLII)

Introduction

Determining what limits apply to an advertiser’s freedom of expression as it pertains to the advertising of offensive messaging on the sides of municipal buses has been the subject of considerable judicial commentary both at the Supreme Court of Canada level and recently by the Alberta Court of Queen’s Bench and the Alberta Court of Appeal – see for example: the Supreme Court of Canada, in Greater Vancouver Transportation Authority v. Canadian Federation of Students, [2009] 2 SCR 295, 2009 SCC 31 (CanLII) (GVTA); the Alberta Court of Queen’s Bench decisions in American Freedom Defence Initiative v Edmonton (City), 2016 ABQB 555 (CanLII ) (AFDI), blogged about here and Canadian Centre for Bio-Ethical Reform v The City of Grande Prairie (City), 2016 ABQB 734 (CanLII) (CCBR QB) (which is the subject of this appeal) which we have previously commented upon here. (See also a decision of the B.C. Supreme Court in The Canadian Centre for Bio-Ethical Reform v. South Coast British Columbia Transportation Authority, 2017 BCSC 1388 (CanLII)).

In CCBR and AFDI, the courts examined the hateful nature of the advertising messages, their harmful impact, and the challenges which this type of messaging poses for municipalities. In many ways, both these decisions addressed novel questions of law that hadn’t been extensively canvassed elsewhere. The Alberta Court of Appeal’s decision in Canadian Centre for Bio-Ethical Reform v The City of Grande Prairie (City), 2018 ABCA 154 (CanLII) (CCBR CA) helpfully settles some of these questions and provides municipalities with useful guidance regarding the limits of freedom to advertise in municipal spaces.

Alberta’s Family Violence Death Review Committee: Recent Reports, Recommendations and Reflections

By Jennifer Koshan

On August 20, 2018

In Family, Human Rights

By: Jennifer Koshan

PDF Version: Alberta’s Family Violence Death Review Committee: Recent Reports, Recommendations and Reflections

Reports Commented On: Family Violence Death Review Committee, Annual Reports and Case Reviews, available here.

Alberta’s Protection Against Family Violence Act, RSA 2000, c P-27 (PAFVA) was passed in 1999 and has as its primary focus the provision of protection orders for persons experiencing family violence. The PAFVA was amended in 2013 to empower the government to establish a Family Violence Death Review Committee (FVDRC) with the mandate to review fatal incidents of family violence and to advise and make recommendations to the government on preventing and reducing family violence (PAFVA, s 16). The FVDRC was established in 2013, and its most recent annual report, released in May 2017, provides statistics on the 132 family violence deaths in Alberta between January 2008 and December 2015 (see Family Violence Death Review Committee, 2015/2016 Annual Report at 12). In a series of more in-depth case reviews released between May 2017 and May 2018, the FVDRC makes several recommendations related to legislation, policy and legal processes that I review in this post. For a good resource on domestic violence death review committees in other jurisdictions in Canada and internationally, see the website of the Canadian Domestic Homicide Prevention Initiative.

A Religious Belief in Inequality: No Injunction Against Bill 24

By Drew Yewchuk

On July 20, 2018

In Human Rights

By: Drew Yewchuk

PDF Version: A Religious Belief in Inequality: No Injunction Against Bill 24

Case Commented On: PT v Alberta, 2018 ABQB 496

PT v Alberta, is the decision of Justice Johnna Kubik on the interlocutory application by several parents and various private schools for an injunction against two provisions in Bill-24: An Act to Support Gay Straight Alliances (Bill 24). Their application to delay the legal effect of the challenged provisions until their constitutional challenge could be heard was denied.

Although PT v Alberta is a fairly brief decision determining an interlocutory application, it is interesting for several reasons: (1) counsel for the applicants was a non-profit entity, the Justice Centre for Constitutional Freedoms, who describes their mission as defending “the constitutional freedoms of Canadians through litigation and education” (JCCF); (2) the applicants brought experts whose evidence was in direct conflict with the legislated legal protections for sexuality and gender identity in Alberta; and (3) one of the religious beliefs that the applicants sought protection for was “that all sexual orientations are not equal” (at para 46). I begin with a summary of a decision, and then discuss these three issues in turn.

The Supreme Court of Canada’s Approach to the Charter’s Equality Guarantee in its Pay Equity Decisions

By Jonnette Watson Hamilton

On July 12, 2018

In Human Rights, Supreme Court of Canada

By: Jonnette Watson Hamilton and Jennifer Koshan

PDF Version: The Supreme Court of Canada’s Approach to the Charter’s Equality Guarantee in its Pay Equity Decisions

Case Commented On: Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 (CanLII); Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18 (CanLII)

The latest decisions of the Supreme Court of Canada on s 15 of the Canadian Charter of Rights and Freedoms are the two companion pay equity decisions rendered May 24, 2018 in Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé et des services sociaux, 2018 SCC 17 (CanLII) (APP) and Centrale des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18 (CanLII) (CSQ). The analysis of the Charter’s s 15(1) prohibition of discrimination on the ground of sex and s 15(2) protection of ameliorative programs from charges of reverse discrimination – the two-case, five-judgment spanning focus of this post – reveals a seriously fractured court reminiscent of the court that decided the so-called “equality trilogy” of the mid-1990s. It reveals the lack of consensus at the end of Beverley McLachlin’s term as Chief Justice and after a significant turnover in members in the past four years, with the three most recently appointed judges who heard these appeals dissenting. The issues this post addresses – and we address them only briefly in this forum – are: (1) What is the current legal test for discerning a breach of s 15? (2) What are the contentious points on which the current justices disagree? And (3) What might these pay equity decisions mean for the future of equality law in general? Unfortunately, there is enough disagreement about the answers to the first two questions that this lengthy post will only discuss the relevant law and not go into detail on its application to the facts in this case (except in the use of comparators).

An earlier ABlawg post by Jennifer Koshan, The Supreme Court of Canada’s Pay Equity Decisions: A Call to Action for Alberta?, explores the implications of these two decisions for the Alberta government’s pay equity obligations. The context and facts of both decisions are detailed in that post, but a brief recap to set the stage for the s 15 analysis is in order.

Protecting the Public Interest: Law Society Decision-Making After Trinity Western University

By Alice Woolley

On July 6, 2018

In Constitutional, Human Rights, Supreme Court of Canada

By: Alice Woolley and Amy Salyzyn

PDF Version: Protecting the Public Interest: Law Society Decision-Making After Trinity Western University

Cases Commented On: Law Society of British Columbia v Trinity Western University, 2018 SCC 32 (CanLII); Trinity Western University v Law Society of Upper Canada, 2018 SCC 33 (CanLII).

Introduction

Canadian law societies strive to regulate lawyers and legal services in the public interest. Courts emphasize the law societies’ broad discretion to determine what the public interest requires in governing the profession and, accordingly, defer to the law societies’ exercise of that discretion (See Malcolm Mercer’s analysis of this on slaw.ca).

Courts defer to law societies because they accept the underlying rationale for law societies’ power and responsibility. Courts recognize the importance of the independence of the bar, and view self-regulation (of lawyers by lawyers) as an appropriate mechanism for ensuring that independence (This view is problematic but widely accepted – see, e.g., Law Society of British Columbia v Trinity Western University 2018 SCC 32 (“LSBC v TWU”) at para. 37). Courts view serving the public interest as something law societies must pursue in exchange for the privilege of self-regulation (LSBC v TWU at para 32) but simultaneously identify self-regulation as likely to ensure protection of the public interest given law societies’ “particular expertise and sensitivity to the conditions of practice” (LSBC v TWU at para. 37). Briefly (albeit circularly), courts assert that they defer to law societies because independence of the bar requires self-regulation; self-regulation requires law societies to act in the public interest; and self-regulation effectively protects the public interest because of law societies’ institutional expertise.

This blog post raises questions about whether current law society policy-making structures can effectively consider and advance the public interest. In particular, and in light of the saga of Canadian law societies’ consideration of TWU’s attempt to open a law school, it considers whether law societies can fulfill their mandate to regulate in the public interest when benchers make policy decisions in hard cases.