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Does the Punishment Fit the Crime?

On May 20, 2022

By: Lisa Silver

Appeals commented on: R v Hills (SCC Case No 39338), R v Hilbach and the companion appeal, R v Zwozdesky (SCC Case No 39438)

PDF Version: Does the Punishment Fit the Crime?

The week of March 21 was a momentous occasion for criminal law. In that week, over the course of three days, four Supreme Court of Canada appeals were heard that may change our sentencing principles and subsequently our entire conception of a fit and proper sentence. All four cases evoke the Charter in their drive to clarify, confine, and restrain punishment. The Alberta trilogy of R v Hilbach (argued with the companion case R v Zwozdesky), 2020 ABCA 332, and R v Hills, 2020 ABCA 263 all focus on the interpretation and application of s 12 of the Charter in challenging the mandatory minimum penalties of firearm offences. Bissonnette v R, 2020 QCCA 1585 from the Quebec Court of Appeal, on the stacking of the twenty-five-year parole ineligibilities for multiple convictions of first-degree murder under s 745.51, turns to ss 7 and 12 of the Charter. Finally, in R v Sharma, 2020 ONCA 478, ss 7 and 15 are applied to question the unavailability of conditional sentences for certain offences, particularly for Indigenous offenders. This comment will focus on the trilogy of Alberta cases in Hilbach, Zwozdesky, and Hills, which give us a snapshot of those trending issues that the Supreme Court of Canada will be grappling with when writing their decisions for all these appeals. For further ABlawg reading on the concerns with mandatory minimum sentences, see Erin Sheley, “The Next Shot in the Constitutional Debate Over Mandatory Minimum Sentences for Firearms Offences”; and Daphne Wang, “R v EJB: Another Unconstitutional Mandatory Minimum Sentence”.

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

By Kerry Wilkins

On May 17, 2022

In Aboriginal, Constitutional, Family, Indigenous, Provincial Court

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).

Red Flags with Bill 15 – Education (Reforming Teacher Profession Discipline) Amendment Act

By Shaun Fluker

On May 10, 2022

In Administrative Law, Rule of Law

By: Shaun Fluker

Legislation Commented On: Bill 15 – Education (Reforming Teacher Profession Discipline) Amendment Act (30^th Legislature, 3^rd Session, Minister of Education)

PDF Version: Red Flags with Bill 15 – Education (Reforming Teacher Profession Discipline) Amendment Act

One day the Supreme Court of Canada will revisit its 2001 decision in Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52 (CanLII), [2001] 2 SCR 78, because the Court will eventually have to address its failure in Ocean Port to give adequate consideration to the importance of real independence in the administrative process established by the executive branch, both in matters generally and more particularly in disciplinary proceedings. The disciplinary process for Alberta teachers, recently added to the Education Act, SA 2012, c E-0.3 by Bill 15, is a case in point. The Minister of Education stated at the beginning of second reading for the bill that the Commissioner in charge of the disciplinary process “would operate at arm’s length from the ministry.” (Alberta Hansard, April 21 2022 at 767) This post examines Bill 15 to assess the accuracy of the Minister’s claim, and concludes that not only is the Commissioner not sufficiently independent of the Minister, the disciplinary process as a whole exhibits very little indicia of being independent.

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

By Jennifer Koshan

On May 5, 2022

In Ethics and the Legal Profession, Provincial Court

By: Jennifer Koshan

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

The Inherent Indigenous Right of Self-Government

By Kent McNeil

On May 4, 2022

In Aboriginal, Indigenous, Provincial Court

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.