Monthly Archives: November 2017

A new appointment to the Supreme Court of Canada: congratulations (and some unintended consequences)

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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.

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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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