ABLawg

December 6 is the National Day of Remembrance and Action on Violence Against Women in Canada. This date marks the anniversary of the murders of fourteen women at the École Polytechnique massacre in Montreal. A memorial service is being held at the University today, and people may also wish to visit the moving sculpture by artist Teresa Posyniak, Lest We Forget, in the Faculty of Law across from the law library.

ABlawg has published several posts on gender-based violence this year, which we have gathered below. These posts analyze the treatment of gender-based violence by the courts and legislatures, in criminal, constitutional and other contexts, drawing to attention those bodies’ varying levels of understanding of and commitment to preventing violence. It is worth noting that the Inquiry Committee of the Canadian Judicial Council into the conduct of Justice Robin Camp recently stated as follows with respect to the role of judges in cases involving gender-based violence:

The Intervener Coalition submitted that, conceptually, the reasonable person “must include the perspective of survivors of sexual assault, and marginalized women generally, as they are entitled to a judiciary that rejects sexual myths and stereotypes and understands and respects equality.” We agree. A judge performs a unique role in society and his or her capacity to continue in the execution of that role cannot be judged without regard to the perspective of those who would most likely be affected by the Judge remaining in office. That is not to say that such a perspective is the sole or the dominant one in evaluating public confidence, but it is one that should be included, and must be understood. (at para 252)

With that in mind, we encourage our readers to reflect on the various approaches to gender-based violence captured here:

No Offence, But I Hate You: American Freedom Defence Initiative v Edmonton (City)

By Ola Malik

On December 5, 2016

In Constitutional, Municipal Law

By: Ola Malik, Jeff Watson and Holly Wong

PDF Version: No Offence, But I Hate You: American Freedom Defence Initiative v Edmonton (City)

Case Commented On: American Freedom Defence Initiative v Edmonton (City), 2016 ABQB 555 (Can LII )

Our Canadian courts are jealous guardians of the freedom of expression, which the Canadian Charter protects in section 2(b). The rationale for protecting freedom of expression is that society should be free to discuss and decide what is true, what is right and what is good. As with most things Canadian, we have accepted that the way in which we speak to one another should be politely regulated. Our courts have accepted that for expression to be truly valued, our public square must provide everyone with the opportunity to speak as equals, where no one is made to feel marginalized or devalued. How very Canadian, indeed! To a large extent, how we speak to one another is as important as what we say, and that, in our view, is a good thing. Defining the limits of appropriate speech isn’t just an exercise in legal abstractions, nor does it just involve lawyers. Rather, it goes to the heart of how all of us live together in a peaceful community with our neighbours and what we, together as a community, aspire to be.

Those of us who practice municipal law and who are interested in freedom of expression issues have been eagerly awaiting the case of American Freedom Defence Initiative v Edmonton (City), 2016 ABQB 555 (AFDI). Indeed, we were so intrigued by the issues this case raises that we commented on them long before trial, here, and in a companion piece titled “Controversial Advertising on City Buses – Are Municipalities Ready for What’s To Come?” (2015) 7:5 DMPL (2d) 1-6.

Arbitrations Added to the PPA Soup

By Nigel Bankes

On December 2, 2016

In Arbitration, Energy, Utility Regulation

By: Nigel Bankes

PDF Version: Arbitrations Added to the PPA Soup

Case Commented On: TransCanada Energy Ltd v Balancing Pool, 2016 ABQB 658 (CanLII)

The power purchase arrangements (PPA) dispute in the Province continues to evolve along a number of different tracks. As noted in a previous post, the negotiation track seems to be producing some positive results with a number of tentative settlements announced. As a second track, ENMAX has its application to determine the effective date of termination of the Battle River PPA (this application is discussed at para 5 of the current decision). This application had been adjourned sine die but ENMAX has recently applied to have the application set down for a hearing. As a third track, the Province, through the Attorney General (AG), continues to maintain its judicial review application. The decision that is the subject of this post reveals a fourth track, that of arbitration actions commenced by some of the PPA buyers (although perhaps some of these arbitrations might be withdrawn under the terms of the tentative settlements referenced above). This decision of Chief Justice Neil Wittmann deals with whether or not the arbitrations were properly commenced (i.e. had a dispute crystallized?) and the interaction between the judicial and arbitral tracks.

Bill S-3: A rushed response to Descheneaux

By Elysa Darling

On December 1, 2016

In Aboriginal, Constitutional, Human Rights

By: Elysa Hogg

PDF Version: Bill S-3: A rushed response to Descheneaux

Matters Commented On: Bill S-3 “An Act to amend the Indian Act (elimination of sex-based inequities in registration); Descheneaux c Canada (Procureur General), 2015 QCCS 3555 (CanLII)

*Note on terminology: “Indian” is used to describe a person defined as such under the Indian Act, and is not intended to carry any derogatory connotations.

In the early days after the 2015 election, Prime Minister Trudeau was honoured by the Tsuut’ina First Nation with a traditional headdress and an indigenous name which translates to “the one that keeps trying.” Trudeau and the Liberals will have to keep trying, as they made an extraordinary commitment to address First Nations issues during the campaign, and set multiple deadlines for action within the next few years. One of the first deadlines to come due is an amendment of the Indian Act, RSC, 1985 c. I-5 necessitated by a recent Quebec Superior Court ruling.

In Descheneaux c Canada (Procureur General), 2015 QCCS 3555 (CanLII) (Descheneaux) the court held that several provisions of the Indian Act surrounding who is considered a ‘Status Indian’ violated the principles of equality protected by Section 15 of the Charter of Rights and Freedoms.

After withdrawing an appeal of the decision in February 2016, the federal government has commenced a two-stage response to this ruling. Stage one is Bill S-3 “An Act to amend the Indian Act (elimination of sex-based inequities in registration)”, while stage two is a collaborative process between the government and First Nations leadership to identify and implement further reforms.

This post will briefly summarize the issues and findings in Descheneaux, and assess how these are impacted by Bill S-3. It will also examine some of the testimony given at the Senate’s Standing Committee on Aboriginal Peoples meetings held last week on these issues. Finally, it will briefly look at how Deschaneaux fits into the Liberal government’s progress on implementing the many campaign promises it made to First Nations’ people.

The Constitutional Limits of the Sex Offender Registry

By Erin Sheley

On November 30, 2016

In Constitutional, Criminal

By: Erin Sheley

PDF Version: The Constitutional Limits of the Sex Offender Registry

Case Commented On: R v Ndhlovu, 2016 ABQB 595 (CanLII)

It has become conventional wisdom in public discourse that sex offenders are uniquely likely to repeat their crimes. This assumption, combined with the heinous nature of sex offences (particularly those involving child victims), has motivated law enforcement and legislators to adopt unique measures to solve and prevent sex offences. In the United States the FBI maintains a searchable sex offender database compiled from the data of the various state jurisdictions. A user may conduct a geographic search to quickly access the name, photograph, and rap sheet of any sex offender living in their neighborhood. (Eligibility for the database varies substantially by state, both in terms of seriousness of the triggering offence (in some states public urination qualifies), duration of time on the database (in many jurisdictions it is for life), and existence of judicial discretion to require registration (in most jurisdictions it is automatic upon conviction for a triggering offence)).

Canada’s approach has been somewhat more moderate.

Commemorating the National Day of Remembrance and Action on Violence Against Women

No Offence, But I Hate You: American Freedom Defence Initiative v Edmonton (City)

Arbitrations Added to the PPA Soup

Bill S-3: A rushed response to Descheneaux

The Constitutional Limits of the Sex Offender Registry