The third branch bends a knee to the Charter: Vancouver Aquarium v. Charbonneau, 2017 BCCA 395

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Photo of beluga from CTV News

Last week, the Court of Appeal for British Columbia overturned an injunctive order of the Supreme Court that had required a film-maker to remove certain segments of his film because they had been filmed in the Vancouver Aquarium subject to certain restrictive conditions and then used in the film without the Aquarium’s consent. The film sought to advance the case that cetaceans ought not to be kept in captivity, a thesis that ran counter to the Aquarium’s business objectives. In reversing the Supreme Court, the appellate court called upon the Charter and its protection of freedom of expression to justify its decision. To me, what was interesting about this decision (Vancouver Aquarium Marine Science Centre v. Charbonneau, 2017 BCCA 395) was the fact that the Court used the Charter to limit the scope of discretionary power that the judge of first instance could exercise  in issuing such an injunction.

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Medical Assistance in Dying – Part 3, 4?? Lamb v. Canada (Attorney General), 2017 BCSC 1802

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A recent decision of Chief Justice Hinkson of the British Columbia Supreme Court in Lamb v. Canada (Attorney General), 2017 BCSC 1802 has underscored the fact that Canada is not done with the medical assistance in dying portfolio. As we know, in 2016, the Liberal government pushed through Bill C-14 over the objections of many who asserted that the Bill did not comply with the Supreme Court of Canada’s ruling in Carter v. Canada (Attorney General), 2015 SCC 5. Indeed, in a previous post, I predicted that if the legislation passed “as is”, we would see “yet another challenge (and more people suffering unnecessarily) in the not too distant future”. Unfortunately, this prediction has come to pass.
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The Minister and the Grizzly Bear Spirit: Another Indigenous People Loses to “Reasonable Consultation”

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BC’s Selkirk Mountains as seen from space: NASA

On November 3, 2017, the Supreme Court of Canada confirmed that, yet another part of a First Nation’s claimed traditional territory could be subject to permanent development because the government had conducted “reasonable consultation”. In Ktunaxa Nation v. British Columbia (Minister of Forests, Lands and Resources), 2017 SCC 54, the Court delivered a double blow to the Indigenous Nation. Not only did the Court hold that the Indigenous Nation’s freedom of religion was not infringed by the government’s decision to approve a year-round ski resort development on their claimed sacred grounds but the Court also found that the Minister had reasonably consulted the Indigenous Nation and that, therefore, the governmental approval was upheld. There are a number of perspectives to this case so this blog post will actually be considering:

1. Freedom of religion;
2. Reasonable consultation and accommodation; and
3. Supreme Court of Canada appointments.

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Québec’s Religious Neutrality Act – Neither Neutral Nor Accommodating

Last week, the Québec National Assembly passed the Religious Neutrality Act, also known as Bill 62. Aside from the Indian Act which I
continue to believe is Canada’s most discriminatory legislation (it is pretty hard to argue that the Indian Act’s legislative purpose was anything other than to contain and control the Indian peoples of Canada – of course, this is a conversation for a different day), I can think of no other provincial or federal legislation that is as overtly discriminatory as Bill 62.

While the Act proclaims the secular nature of the organs of state of the Québec government, its central provisions deal with, of all things, face covering. And not just for the personnel of the Québec government. For anyone receiving services from the Québec government. So to be clear, the rule is that to provide or receive services, one’s face must be covered.

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“Rule of Law” – Is it under Siege?

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This last year has seen surprising developments throughout the Western world. Probably none is more surprising than the changes that have been the consequences of the election of American President Donald Trump. His daily Tweets (his preferred means of communicating White House policy it would seem) are often confusing, contradictory, and,…, well…, frankly concerning. Like many, I have found many of President Trump’s pronouncements troubling. They demonstrate to any who have the most basic comprehension of the proper functioning of western democracies that he does not understand or appreciate the importance of basic constitutional norms. Like freedom of the press. Or worse, like rule of law.

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Constitutional surgery gone awry or lessons in how to make the cut? Cambie Surgeries Corporation v. British Columbia (Medical Services Commission)

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For about nine years here on Canada’s West Coast, a constitutional battle has been fought over the future of public health care. The opening shots were fired in 2008 by some individual patients against a private surgery clinic, Cambie Surgeries Corporation (“Cambie”), claiming that Cambie was illegally extra-billing and that the Medical Services Commission (the “MSC”) was not properly enforcing the law. Cambie then responded by launching its own action in early 2009, challenging the constitutionality of provisions of the provincial Medicare Protection Act claiming that they caused undue delay in access to health care resulting in a violation of the patients’ rights to life, liberty and security of the person as guaranteed by s. 7 of the Charter (amongst other challenges). Since 2009, there have been over thirty reported decisions of the Supreme Court of British Columbia dealing with procedural issues. Over twenty of those reported decisions have been issued since the commencement of trial (I am sure that there are many more unreported decisions).

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The Supremes give a lesson on the duty to consult and accommodate

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On July 26, 2017, the Supreme Court of Canada rendered two much awaited decisions respecting the duty of the National Energy Board to consult and accommodate the aboriginal rights of two distinct Indigenous peoples for two distinct projects. In one, Clyde River (Hamlet) v. Petroleum Geoservices Inc., 2017 SCC 40, a tiny Inuit community from Nunavut convinced the Court that it had not been deeply and meaningfully consulted or reasonably accommodated and therefore, the National Energy Board’s approval of the petroleum-testing project was overturned and quashed. In the other, Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41, the Court held that the NEB had appropriately and sufficiently consulted and then accommodated the southwest Ontarian Indigenous nation and upheld the NEB’s approval of Enbridge’s project. Of note, the Court ordered that the Chippewas of the Thames pay Enbridge’s costs.

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Decision of Indigenous Groups to Boycott Council of the Federation Meeting Underscores the Need for Constitutional Reconciliation and Inclusion

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The headline on today’s CBC News website says “Indigenous leaders to boycott Monday’s meeting with premiers”. The article outlines how three Indigenous groups, namely, the Assembly of First Nations, the Metis National Council and Tapirit Kanatami, have decided to withdraw from the Council of the Federation meeting where the leaders of the provinces and territories will be meeting because they (the indigenous leaders) are not being recognized as full and equal participants. In my opinion, this article demonstrates the pressing need for Canada’s reconciliation process to recognize the governments of Indigenous peoples in a more formal and constitutional manner.

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The Google decision – lessons to learn for future cyber-speech litigants: Google Inc. v. Equustek Solutions Inc., 2017 SCC 34

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A recent decision of the Supreme Court of Canada regarding the Internet giant, Google, has delivered some very important lessons for future litigants in the field of cyber-speech. In Google Inc. v. Equustek Solutions Inc., 2017 SCC 34, the Court has delivered two two principal lessons:

1. If you are going to allege constitutional values or arguments, such as the importance of freedom of expression, ensure that you develop a full evidentiary record in support of your position;

2. The Court may well understand that there is a distinction between those who provide technology such as search engines and those who use it for the purposes of breaking the law.

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The birthday of Canada’s Constitution and the British Columbian lesson

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Today marks the 150th anniversary of the date that Canada’s constitution came into effect. While many are saying that today is Canada’s 150t birthday, it is more accurate to say that it is the “150th birthday” of Canada’s written federal constitution. On July 1, 1867, the British North America Act, now named the Constitution Act, 1867, came into force and the fledgling federation known as Canada was created. But Canada and her constitution existed long before that, Even in the political and legal sense of the word, “Canada” was a concept or an entity in one form or another well before 1867. There was the united Province of Canada, Upper and Lower Canada, and, of course, the indigenous nations that spanned the territories of what is now Caanda for long before 1867. But today, I would like to commemorate the 150th anniversary of Canada’s BNA Act (let’s use the former name today for old time’s sake). I would also like to take notice of what transpired recently in British Columbia to underscore that Canada and her constitution are much, much older than 150 years.

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