“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 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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Limiting Charter Damages – Ernst v. Alberta Energy Regulator, 2017 SCC 1

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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

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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

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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

The Senate says “’nuff”… Bill C-14 approved by the Red Chamber

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This is just a quick post to note that Bill C-14 in the more restricted format passed by the House of Commons – for the second time – was just approved by the Senate by a 44 to 28 vote. Earlier, the Senate had returned the Bill to the House of Commons with a substantial majority of Senators agreeing that the House of Commons’ version was too restricted, especially considering the requirement that a person seeking medical assistance in dying (“MAID”) be at the point where his or her natural death was “reasonably foreseeable”. Constitutional experts had testified before the Senate to the effect that this version of the Bill was unconstitutional because it stripped away rights from a group of persons that the Supreme Court of Canada had expressly determined were theirs. So what next?

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Henry v British Columbia (Attorney General), 2016 BC 1038 – $7.5 million in Charter damages

 

Today, in Henry v. British Columbia (Attorney General), 2016 BCSC 1038 Chief Justice Chris Hinkson of the BC Supreme Court awarded Ivan Henry Charter damages of $7.5 million for the violation of his Charter rights resulting in his wrongful conviction and imprisonment for 27 years. He also awarded about half a million dollars for compensation as compensation for past loss of income and special damages of about $50,000. But after considering the “cap” on non-pecuniary damages and deciding that it was not applicable in this case, the Chief Justice sought to “vindicate” the wrongs of the British Columbian government.

Bearing in mind the direction of Chief Justice McLachlin in Ward that just as private law damages must be fair to both the plaintiff and the defendant, so s. 24(1) damages must be fair — or “appropriate and just” — to both the claimant and the state, and weighing the social burden of a large award to Mr. Henry against his suffering and loss of amenities, I find that an appropriate award to vindicate the violation of Mr. Henry’s Charter rights is the sum of $7.5 million. 

I will expand on this case in a later post. In the interim, I wanted to let you know of this important decision.  Click here to go directly to the decision.

Constitutionally yours,

 

Arthur Grant

BC Supreme Court certifies Charter claims by penetentiary inmates as a class action

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In a recent decision of the Supreme Court of British Columbia, Ewert v. Canada (Attorney General), 2016 BCSC 962,  Mr. Justice Blok certified as a class action certain aspects of a lawsuit brought by an inmate for, amongst other things, damages for violations of Charter rights. The inmate in question, Jeffery Ewert, claimed that, during a lockdown at the Kent Correctional Institution that occurred between January 7 and 18, 2010, his rights and the rights of other inmates under ss. 7, 8 and 12 of the Charter were violated and that they were accordingly entitled to damages.

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The deadline has passed. What is the status of physician-assisted death in Canada today?

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The extended deadline set by the Supreme Court of Canada in Carter v. Canada (Attorney General), 2016 SCC 4 expired last night, June 6, 2016, at midnight. The constitutional exemption created by the Court in granting the extension to its original deadline of February 6, 2016, would have logically expired as well. So what is the state of the law today in Canada insofar as it relates to medical assistance in death?

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