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

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

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

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?

 

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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The Court comes to the defence of solicitor-client privilege – Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20

On June 3, 2016, the Supreme Court of Canada yet again upheld the constitutional principle in support of professional secrecy between legal advisors and their clients. Justices Wagner and Gascon, rendering reasons for the Court in Canada (Attorney General) v. Chambre des notaires du Québec, 2016 SCC 20, underscored the importance of solicitor-client privilege, not only in the judicial system, but also in the legal system. Accordingly, in Chambres des notaires, as well as in Canada (National Revenue) v. Thompson, 2016 SCC 21, released contemporaneously, the Court held that the right to professional secrecy trumped the need of the government to be able to obtain accounting records of legal advisors in so far as they related to clients.

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Alberta Court of Appeal and Ontario Supreme Court – both say Carter does not require terminal illness

In two separate decisions, the courts have made it clear that nothing in Carter v. Attorney General (Canada), 2015 SCC 5 requires that the person seeking medical assistance in dying be suffering from a terminal illness or condition. And yet the government persists in pursuing Bill C-14 with its requirement of “reasonable foreseeability” of death.

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Medical assistance in dying – the Liberal government responds to the Supreme Court

More than 14 months after the Supreme Court first held that the Criminal Code provisions forbidding physician-assisted death were unconstitutional in Carter v. Canada (Attorney General), 2015 SCC 5, and almost three months to the day from the date that the Supreme Court gave a four month extension to its suspension of the declaration of unconstitutionality (see Carter v. Canada (Attorney General), 2016 SCC 4), the Liberal government has introduced its legislative response with a bill, Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying).

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