ABLawg

By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: Assisted Suicide and Adverse Effects Discrimination: Where Will the Supreme Court Go in Carter?

Case Commented On: Carter v Canada (Attorney General), 2012 BCSC 886, rev’d 2013 BCCA 435, leave to appeal to SCC granted 2014 CanLII 1206 (SCC)

We recently posted a paper on SSRN that is forthcoming in the Review of Constitutional Studies, dealing with the Supreme Court of Canada’s approach to adverse effects discrimination under section 15(1) of the Charter. Adverse effects discrimination occurs when laws that are neutral on their face have a disproportionate and negative impact on members of a group identified by a prohibited ground of discrimination. Although the Court has recognized adverse effects discrimination as key to the Charter’s guarantee of substantive equality, it has decided only 8 such cases out of a total of 66 section 15(1) decisions released since 1989, none since 2009. Only 2 of the 8 claims were successful (see Appendix I in our paper). Our analysis shows several obstacles for adverse effects discrimination claims, including burdensome evidentiary and causation requirements, courts’ acceptance of government arguments about the “neutrality” of policy choices, narrow focusing on prejudice and stereotyping as the only harms of discrimination, and failing to “see” adverse effects discrimination, often because of the size or relative vulnerability of the group making the claim.

In light of the very small number of successful adverse effects claims and the problems in the case law, it is interesting to note that in October 2014 the Supreme Court heard 2 section 15(1) appeals involving adverse effects discrimination: Carter v Canada (Attorney General) and Taypotat v Taypotat, 2012 FC 1036, 2013 FCA 192; leave to appeal to SCC granted 2013 CanLII 83791 (SCC). This post will focus on Carter, a challenge to the ban on assisted suicide under the Criminal Code, RSC 1985, c C-46, and the adverse effects discrimination arguments the Supreme Court is considering in that case. We acknowledge that the Court is far more likely to decide Carter on section 7 grounds—much of the Court’s focus during oral arguments was on whether the ban violates the rights to life and security of the person in ways that are arbitrary, overbroad or grossly disproportionate, contrary to the principles of fundamental justice (see Webcast of the Carter Hearing, October 15, 2014). Nevertheless, Carter raises important equality issues as well.

Supreme Court of Canada grants Leave to Appeal in Daniels

By Admin

On November 21, 2014

In Aboriginal, Constitutional

Case commented on: Harry Daniels et al. v. Her Majesty the Queen as represented by The Minister of Indian Affairs and Northern Development et al, 2013 FC 6, varied 2014 FCA 101; leave granted November 20, 2014 (SCC) (35945)

Yesterday the Supreme Court of Canada (Chief Justice McLachlin and Justices Cromwell and Wagner) agreed to hear Daniels, a case that raises the issue of whether Métis and non-status Indians fall within the scope of federal powers under section 91(24) of the Constitution Act 1867. For an ABlawg comment on the Federal Court and Federal Court of Appeal decisions, see here.

The panel’s decision reads as follows:

The motion of the intervener Métis National Council for an extension of time to serve and file a response to the application for leave to appeal and for leave to file a response to the application for leave to cross-appeal is granted. The application for leave to appeal is granted with costs in any event of the cause. The application for leave to cross-appeal is granted. A party having intervened in the Federal Court of Appeal and wishing to intervene before this Court shall seek leave to intervene.

Bill 1, Respecting Property Rights Act: A Damp Squib and a Good Thing Too

By Nigel Bankes

On November 20, 2014

In Property

By: Nigel Bankes

PDF Version: Bill 1, Respecting Property Rights Act: A Damp Squib and a Good Thing Too

Bill Commented On: Bill 1: Respecting Property Rights Act

The good news about Bill 1 for those with communitarian views is that Bill 1 does not change the law of Alberta one iota. The bad news about Bill 1 for those of a more libertarian persuasion is that Bill 1 does not change the law of Alberta one iota.

Here is the entire text of Bill 1 from its bizarre preambular provisions to its single operative clause:

Preamble

WHEREAS private ownership of land is a fundamental element of Parliamentary democracy in Alberta;

WHEREAS the Alberta Bill of Rights recognizes and declares the right of the individual to the enjoyment of property and the right not to be deprived thereof except by due process of law;

WHEREAS the Government is committed to consulting with Albertans on legislation that impacts private property ownership;

WHEREAS the Land Assembly Project Area Act was enacted by the Legislature in 2009 and was amended in 2011 but has not been proclaimed in force; and

WHEREAS the repeal of the Land Assembly Project Area Act reaffirms the government’s commitment to respect individual property rights;

THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows:

Land Assembly Project Area Act Repeal

The Land Assembly Project Area Act, SA 2009 cL-2.5, is repealed.

This post addresses two questions. First, how is it that despite all the pomp and circumstance surrounding the introduction of this Bill, legally, it changes nothing? And second, why, at least in the opinion of this author, is that a good thing?

Trinity Western… Again

By Alice Woolley

On November 19, 2014

In Ethics and the Legal Profession

By: Alice Woolley

PDF Version: Trinity Western… Again

I can’t stop thinking about the law society decisions on Trinity Western University (TWU). Part of the reason for that is the complexity and difficulty of the substantive issue raised by TWU’s proposed law school: the proper resolution of an irreducible conflict between equality rights and freedom of religion (I discuss that here). But as I spent the last few weeks teaching administrative law procedural fairness, I realized that the other thing bothering me about the law society decisions is the process used to reach them.

As far as I can tell, each law society that has independently considered TWU’s application for accreditation (or is likely to; Alberta delegated its decision to the Federation of Law Societies) has proceeded by way of a quasi-legislative process: TWU and other interested parties make submissions to a meeting of benchers, who then debate the question and vote. In April British Columbia benchers voted 20-6 against a motion barring TWU graduates from admission – a decision the benchers reversed in October following a referendum of its members. In Ontario benchers voted 28-21, with one abstention, to reject TWU’s application for accreditation (its process is discussed here). In Nova Scotia benchers voted 10-9 to make accreditation conditional on TWU withdrawing the community covenant which precludes LGBT students from attending.

Ernst v Alberta Environment: The Gatekeeper Refuses to Strike or Grant Summary Judgment

By Shaun Fluker

On November 17, 2014

In Civil Procedure, Environmental

By: Shaun Fluker

PDF Version: Ernst v Alberta Environment: The Gatekeeper Refuses to Strike or Grant Summary Judgment

Case Commented On: Ernst v Alberta Environment, 2014 ABQB 672

This short comment adds to the recent posts on ABlawg by Professor Martin Olszynski (here and here) and myself (here) on the Ernst litigation against Alberta Environment, the Alberta Energy Regulator (AER) and Encana Corporation concerning allegations of groundwater contamination from hydraulic fracturing. Readers interested in more details on the substance of the litigation will find it here. My focus in this comment is on how Chief Justice Neil Wittmann applies the law on a motion to strike under Rule 3.68 and for summary judgment under Rule 7.3 of the Alberta Rules of Court, Alta Reg 124/2010 (the Rules) to dismiss Alberta’s application. I also ask how we reconcile this decision from the motion to strike initiated by the AER/ERCB and the decision by Alberta courts to grant that application.

Recall that Ernst alleges that Alberta Environment and the AER owe her a duty of care and were negligent by failing to meet that duty. The AER successfully applied to have the Ernst proceedings struck for failing to disclose a reasonable cause of action (Ernst v Alberta (Energy Resources Conservation Board), 2014 ABCA 285 (Ernst II)). Ernst has applied to the Supreme Court of Canada for leave to appeal this Court of Appeal decision (See here).