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

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

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

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

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

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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No Electoral Reform for Canada = the Liberal Government Renegs on its Promise

Today, the new Minister of Democratic Institutions, Karina Gould, announced that the Liberal government has officially abandoning the objective of electoral reform. Thus, notwithstanding the promise that 2015 would be the “last federal election conducted under the first-past-the-post system” made during the 2015 electoral campaign, Canada will be faced with more elections which permit very small percentages of the voting public to put in place electoral majorities.

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UK Supreme Court rules – Parliament must authorize the triggering of Brexit – R. v. Secretary of State for Exiting European Union, 2017 UKSC 5

Today, in an 8:3 split ruling in R. v. Secretary of State for Exiting the European Union, 2017 UKSC 5, the United Kingdom Supreme Court held that Parliament must first authorize the exercise of Article 50’s triggering of the notice for exiting the European Union. While this blog focuses on Canadian constitutional law, what I found of interest was the discussion by the majority on the role of royal prerogative under the Constitution. Much of that discussion is applicable in the Canadian context.
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Limiting Charter Damages – Ernst v. Alberta Energy Regulator, 2017 SCC 1

In its first decision of the year, Ernst v. Alberta Energy Regulator, 2017 SCC 1, the Court released its reasons for dismissing the appeal of Jessica Ernst, an Albertan who was suing, amongst others, the Alberta Energy Regulator for breaching her Charter-protected freedom of expression and seeking Charter damages for that alleged breach. At issue before the Supreme Court was whether the immunity clause in s. 43 of the Alberta Energy Resources Conservation Act had the effect of barring her claim for Charter damages. In a strange 4:1:4 split, a majority of the Court held that it did.
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2016 – a year in constitutional retrospect

 

As 2016 fades into the distance, I thought that it might be useful to look back and see what were some of the biggest constitutional developments in the Old Year. There were many but I think that a few stand out for me. A number do not involve constitutional judicial determinations but they are major Canadian constitutional developments nonetheless.

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The Supremes give the B.C. government a lesson on freedom of association

Only rarely will the Supreme Court rule on a Charter issue of importance from the bench. And that is what has happened today. The Court has overturned the British Columbia Court of Appeal’s ruling, and reinstated the determination of the trial judge. In a previous post, I had commented on the Court of Appeal decision.

The case will no doubt be appealed to the Supreme Court where yet another discussion about the refurbished freedom of association will ensue. The careful discussion by the Chief Justice and Justice Harris (as well as by the dissenting judgment of Justice Donald), dissecting the importance of good faith consultation and discussions with collective representatives from the equally important legislative capacity to impose one or more labour provisions for the sake of public policies, including fiscal prudence, will be of great assistance to that Court when considering just how far the Charter value for associational freedom should go when faced by a government making decisions about such things as educational policy (size of classes and curriculum as examples) and the public purse.

Well, I sure was wrong: the Supreme Court evidently had enough careful discussion and wanted direct action. I will report more on this when a copy of the oral ruling becomes available.

I remain

Constitutionally yours,

Arthur Grant