On April 19, 2018, in R. v. Comeau, 2018 SCC 15, the Supreme Court of Canada ruled that New Brunswick was within its rights to control the flow of beer across its provincial borders: unrestrained interprovincial free trade in Canada (at least for beer) is still a pipedream. But imbedded in the Court’s judgment were seeds that, properly fertilized and irrigated, may well grow into a more robust protection of economic union.
Mr. Comeau had decided that he wanted to bring some cheaper Quebec beer and other alcohol across the Québec/New Brunswick border. The police in New Brunswick were lying in wait for him and charged him with a violation of the New Brunswick Liquor Control Act. At trial, he challenged the constitutionality of s. 134(b) of the Liquor Control Act, arguing that it contravened s. 121 of the Constitution Act, 1867.
Two NDP premiers and two NDP governments. Two provinces side by side in the Canadian west, one – the Far West, Lotusland British Columbia. The other – just “the West”, rough and tumble oil baron Alberta. Alberta is landlocked. It needs to get its oil…. sorry, let’s be accurate here, its bitumen to markets other than the United States (currently, the world’s biggest producer of petroleum). In particular, Alberta wants access to markets where they will pay more money for its bitumen, extracted from its oil sands. British Columbia is a land of milk and honey – okay, let’s be accurate, it’s a land of mountains, rivers and fjords. British Columbians are highly protective of their environment, the ruggedness of which is only surpassed by the fragility of the eco-systems that populate it. Enter the Trans Mountain Pipeline Expansion (“TMX”).
The feds approved a massive expansion of the existing Trans Mountain pipeline that takes diluted bitumen from Alberta through British Columbia to a terminal located in Burrard Inlet that is part of Metro-Vancouver. Once built, this will mean a huge increase in freighter traffic in and out of Vancouver’s ports. The TMX will result in increased risk of bitumen spills in the port, in the Salish Sea, in the Fraser River and its estuary and all along the route of the pipeline. In short, it will dramatically boost Alberta’s access to world markets for its bitumen but it will equally raise the risk to likely do incalculable damage to British Columbia’s rivers, lands and coastlines.
Last year, the federal government announced that it was approving the twinning of the TransMountain pipeline which, once constructed and initialized, would increase multifold the volume of Alberta’s oil sand bitumen that could be shipped out of Vancouver’s Burrard Inlet. The new NDP government in British Columbia announced on January 30, 2018 that it was considering regulations to limit any increase in diluted bitumen that could be shipped through British Columbia. This announcement was met almost immediately by a warning from a stern Alberta Premier Rachel Notley that BC was acting unconstitutionally and that it was purporting to exercise powers it did not have. The constitutional battle lines are being quickly drawn. (See the news report from CBC News from that date for a quick review of what was said by the various parties).
Another chapter in the continuing saga of medical assistance in dying (“MAID”) was completed on January 31, 2018 when the Divisional Court of the Ontario Superior Court of Justice ruled on the constitutionality of the “Effective Referral Provisions” of the Human Rights Policy and MAID Policy of the College of Physicians and Surgeons of Ontario (“CPSO”). (In this blog post, I am focussed on the MAID Policy but the judgment refers to the Policies.) The Effective Referral Provisions require physicians who are unwilling to provide, amongst other matters, MAID to their patients, on moral or religious grounds to provide an effective referral to another health care provider. The Christian Medical and Dental Society of Canada and the Canadian Federation of Catholic Physicians’ Societies, and Canadian Physicians for Life, along with a number of individual “objecting” physicians had challenged the Effective Referral Policy on the basis that the Policy violated their freedom of religion and conscience protected by s. 2(a) of the Charter and their right to equality protected by s. 15. Justice Wilton-Siegel, (Justices Lococo and Matheson concurring) disagreed and dismissed the challenges: The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579.
Sheilah Martin named by Prime Minister Trudeau to the SCC
Today, the Prime Minister announced that his pick for the next justice of the Supreme Court of Canada is Sheilah Martin, currently a member of the Alberta Court of Appeal. If approved, Justice Martin will replace retiring Chief Justice Beverly McLachlin. It is hard to argue with Justice Martin’s credentials. Fluently bilingual. Schooled in both the common law and civil law traditions. Over twenty-two years of being a judge. A former dean of the University of Calgary Law School. Her appointment will ensure that the Court’s female judges remain four of the nine justices. She is eminently qualified to serve on the Court and we should all join in congratulating Justice Martin on having been selected by the Prime Minister for this most significant role.
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.
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. Continue reading →
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.
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.
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.