ABlawg will be taking a break from Christmas Day to New Year’s. We’d like to take this opportunity to thank all of our followers for your readership and support this year. We are honoured to have received so many Clawbie nominations from so many diverse sources. When we return in the new year, you can look forward to a series of posts on the NEB’s Northern Gateway Pipeline decision, amongst other commentary. We wish all of our readers a wonderful holiday season.
By: Jennifer Koshan
PDF Version: Teaching Bedford: Reflections on the Supreme Court’s Most Recent Charter Decision
Case Commented On: Canada (Attorney General) v Bedford, 2013 SCC 72
Much commentary has already been written on the Supreme Court’s decision in Bedford and the implications the case has for the regulation of prostitution in Canada. My interest in this post is to reflect on how to approach Bedford when teaching constitutional law next term. I think Bedford brings some clarity to the case law on section 7 of the Charter, and as Sonia Lawrence has noted here, the decision helps dispel some of the problematic thinking around “choice” and causation in constitutional cases, though I would have liked to see the Court go further here. The Court also could have done more by way of taking a contextual approach in its consideration of the prostitution laws. The evidence presented in the case clearly provided a compelling enough picture of the harms of these laws for the Court to find a violation of section 7, but it is disappointing to see no explicit references to the gendered and racialized nature of prostitution nor to the rich and diverse literature in this area, some of which was cited in the submissions of interveners (see e.g. here, here and here). Finally, the case can also be seen as an example of the relative success that section 7 claims have had of late at the Supreme Court, especially in comparison to the lack of success of section 15 claims.
PDF Version: A Rare Public Challenge to a Municipal Water Franchise Agreement
Decision considered: Rocky View County – Water and Wastewater Franchise Agreement with Harmony Advanced Water Systems Corporation (29 November 2013), Decision 2013-424
This decision is significant because, in this rare instance of a public objection to a municipal utility franchise agreement, the Alberta Utilities Commission took a progressive approach and granted public interest standing to an objector who did not have a statutory right to standing.
By: Joshua Sealy-Harrington
PDF Version: Should Homelessness be an Analogous Ground? Clarifying the Multi-Variable Approach to Section 15 of the Charter
Case Commented On: Tanudjaja v Canada (Attorney General), 2013 ONSC 5410
This post discusses a decision from the Ontario Superior Court which rejected “homelessness” as an analogous ground under section 15 of the Canadian Charter of Rights and Freedoms. I divide the analysis into two sections: (1) a discussion of the analytical flaws in the court’s approach to analogous grounds, and (2) an application of a multi-variable approach to the potential ground of homelessness to demonstrate its apparent viability as an analogous ground. This case should be of concern to ABlawg readers interested in section 15 jurisprudence as well as those advocating for the interests of the homeless.
PDF Version: The Difference Between a Duplex and a Semi-Detached House
Case commented on: Deagle v 1678452 Alberta Ltd., 2013 ABQB 708
Does permission to construct a semi-detached dwelling allow the building of a secondary suite? That was the essence of the controversy in Deagle v 1678452 Alberta Ltd., which involved the interpretation of a 1911 restrictive covenant registered against the title to homes in the Glenora community in Edmonton. In deciding the matter, Justice Donald Lee reviewed a large number of cases concerning restrictive covenants that, in one way or another, limited construction to one dwelling house per lot. While each of those many cases ultimately depended on the exact wording in each restrictive covenant, the distinction that Justice Lee made between a “duplex” and a “semi-detached” house goes beyond the particularities of each case in the absence of evidence as to what the parties to any one restrictive covenant intended by their use of those terms at the time the covenant was entered into.