Category Archives: Provincial Court

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)

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

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 →

A Comment on Bill 14, The Provincial Court (Sexual Awareness Training) Amendment Act, 2022

By: Jennifer Koshan

Bill Commented On: Bill 14, the Provincial Court (Sexual Awareness Training) Amendment Act, 30th Legislature, 3rd Session (Alberta, 2022)

PDF Version: A Comment on Bill 14, The Provincial Court (Sexual Awareness Training) Amendment Act, 2022

On March 30, 2022, the Alberta government introduced Bill 14, the Provincial Court (Sexual Awareness Training) Amendment Act, 2022. This very short Bill imposes the requirement that new applicants for Alberta Provincial Court judicial appointments will have “completed education in sexual assault law and social context issues” before they can be appointed (see s 3 of the Bill, which will amend the Provincial Court Act, RSA 2000, c P-31, s 9.1(2)). People who are already on the appointment eligibility list when the Bill’s amendments come into force must undertake to complete this education after being appointed (s 3 of Bill 14, adding s 9.1(2.1) to the Provincial Court Act). Bill 14 passed Second Reading on April 20, 2022 and is now before the Committee of the Whole. Continue reading →

The Inherent Indigenous Right of Self-Government

By: Kent McNeil

Matter 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) [Quebec Reference, quotations from the unofficial English translation]

PDF Version: The Inherent Indigenous Right of Self-Government

In this Quebec Reference, the Attorney General of Quebec challenged the constitutional validity of the federal Act respecting First Nations, Inuit and Métis children, youth and families, SC 2019, c24. This statute acknowledges that the Indigenous peoples of Canada have an inherent right of self-government, which includes jurisdiction over child and family services and is recognized and affirmed by section 35(1) of the Constitution Act, 1982. The Quebec Court of Appeal (CA) rejected Quebec’s contention that this statute is beyond the jurisdiction of Parliament. The Act’s pith and substance, the CA said, is to ensure the well-being of Indigenous children, and this is clearly within Parliament’s jurisdiction over “Indians” in section 91(24) of the Constitution Act, 1867. The CA also decided that the Act does not amend the Constitution by acknowledging the inherent right of self-government because this right is already an Aboriginal right within section 35(1). The constitutional validity of the Act was therefore upheld, with the exception of two provisions that would have given some Indigenous laws relating to family matters absolute paramountcy over provincial laws. This decision is now on appeal to the Supreme Court of Canada.

This comment focuses on the CA’s decision on the existence and nature of the inherent right of self-government. It addresses the question of whether this aspect of the decision is consistent with Supreme Court case law, especially R v Pamajewon, 1996 CanLII 161 (SCC), [1996] 2 SCR 821, the only case in which the Court has addressed the issue of Indigenous self-government directly. Continue reading →

R v Boudreau: Senior Crown Recused Due to Hostility, “Animus” Toward Accused

By: Amy Matychuk

PDF Version: R v Boudreau: Senior Crown Recused Due to Hostility, “Animus” Toward Accused?

Case Commented On: R v Boudreau, 2021 ABPC 175 (CanLII)

In R v Boudreau, 2021 ABPC 175 (CanLII), Judge F. K. MacDonald for the Provincial Court of Alberta ordered that Mr. Mark Huyser-Wierenga, a Crown prosecutor, recuse himself from conducting a prosecution against the accused, Mr. William Boudreau. Judge MacDonald found that Mr. Huyser-Wierenga’s conduct showed “a lack of objectivity and an inappropriate hostility” to Mr. Boudreau’s defense counsel, Ms. Ellen Sutherland (at para 110). Mr. Huyser-Wierenga also put himself in a position of conflict and conducted himself recklessly or with unacceptable negligence. In this unusual decision, Judge MacDonald issues a stern rebuke to a very senior male Crown prosecutor who not only treated junior female defence counsel discourteously and unprofessionally, but also gave rise to a reasonable apprehension of bias against the accused by making himself a witness and using hyperbole and overstatement when before the court. Continue reading →

Abatement of Rent for Landlord’s Breach of the Minimum Housing and Health Standards

By: Jonnette Watson Hamilton

PDF Version: Abatement of Rent for Landlord’s Breach of the Minimum Housing and Health Standards

Case Commented On: C.V. Benefits Inc. v Angus, 2017 ABPC 118 (CanLII)

This decision is important for two reasons. First, Assistant Chief Judge Jerry LeGrandeur awarded the tenant an abatement of her rent based on her landlord’s breach of section 16(c) of the Residential Tenancies Act, SA 2004, c R-17.1 (RTA). Section 16(c) requires landlords to ensure that rented premises “meet at least the minimum standards prescribed for housing premises under the Public Health Act and regulations.” Usually abatement of rent is granted for a landlord’s breach of section 16(b) of the RTA, which is the landlord’s promise that it will not “in any significant manner disturb the tenant’s possession or peaceful enjoyment of the premises.” Relying on section 16(b) suggests that a tenant must be unable to use or possess all or a part of the rented premises. Indeed, the landlord in this case argued that there needed to be an actual loss of physical use of all or part of the premises before a court could grant an abatement of rent. Tying the abatement of rent remedy to tenants’ inability to physically occupy the premises might seem appropriate if a tenant is forced out of possession by flooding or a bedbug infestation. However, tenants need to be able to be awarded an abatement of their rent when the problems are persistent but less serious breaches of minimum housing standards that do not drive them out of possession or entitle them to terminate their lease. Judge LeGrandeur’s decision made it clear that tenants can rely on section 16(c) when seeking abatement of their rent. Second, rather than calculating the amount of the abatement based on what percentage of the square footage of the rented premises the tenant could not use, Judge LeGrandeur adopted a more contextualized approach that seems much more appropriate. Continue reading →