Does the demise of the press present a constitutional issue for our democracy?

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In today’s Globe and Mail, Lawrence Martin has underscored the “crisis in journalism”. His opinion piece, “A crisis that cries out for a public inquiry”,  presents an important question about the state of the “fourth establishment” and its role in democratic government. He describes the root of the problem as follows:

Today, we have a crisis in the journalism industry unprecedented in scope. A media implosion. Newspapers being reduced to digital editions, large numbers losing their jobs, circulation falling, ad revenues plunging, near monopoly ownership of big-city dailies, the old business model in a state of collapse.

He goes on to observe that “it’s a joke to think that a healthy democracy can be restored given the continuing depletion of the one industry that holds business and government to account”.  He asks “[i]f traditional print journalism cannot be sustained, what fills the void?” Good question.

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Nova Scotia’s Cyber-safety Act declared unconstitutional: Crouch v. Snell, 2015 NSSC 340

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[image from endcyberbullying.org]

On Friday, Justice McDougall of the Nova Scotia Supreme Court ruled that Nova Scotia’s Cyber-Safety Act is unconstitutional, violating both s. 2(b) and s. 7 of the Charter.  The Cyber-safety Act was passed in 2013 in response to the public outcry over the suicide death of a young woman, Rehtaeh Parsons, linked to her having been bullied on-line. In his 66 page judgment in Crouch v. Snell, 2015 NSSC 340, Justice McDougall held that the Nova Scotian legislature had gone too far in its attempt to address the dangers of cyberbullying.

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BC Supreme Court quashes Law Society’s decision not to accredit Trinity Western University’s law school: Trinity Western University v. Law Society of British Columbia, 2015 BCSC 2326

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Today Chief Justice Hinkson quashed the decision of the Benchers of the Law Society of British Columbia to submit the question as to whether to accredit Trinity Western University’s proposed law school or not to a referendum of the members after previously having decided to accredit the proposed law school. He found that the Benchers’ later decision was improper, was an improper fettering of the Benchers’ discretion and did not involve a proper balancing of the Charter interests as had been done by the Benchers in their earlier decision. He restored their earlier decision to accredit the proposed law school. His ruling can be found at Trinity Western University v. Law Society of British Columbia, 2015 BCSC 2326.  I will not go through the legal analysis in this post, at least not today. I will say, however, that this is obviously yet just one more step in the multi-province, multi-action process that will eventually culminate in the Supreme Court of Canada having to review its earlier decision in Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31.

I remain

Constitutionally yours

 

Arthur Grant

Homeless campers score a win in BC using s. 7’s life, liberty and security of the person: Abbotsford (City) v. Shantz, 2015 BCSC 1909

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On Wednesday, October 21, 2015, Chief Justice Hinkson of the British Columbia Supreme Court gave effect to the arguments of an association called Drug War Survivors (“DWS”) that the City of Abbotsford’s bylaws that forbade sleeping in the City’s parks or the temporary erection of shelters without permits to be contrary to s. 7’s protection of security of the person under the Charter and were therefore of no force or effect. In an 81 page reasons for judgment in Abbotsford (City) v. Shantz, 2015 BCSC 1909 that reviewed the evolving jurisprudence under s. 7 of the Charter and specifically previous British Columbian decisions respecting a similar challenge of the City of Victoria’s bylaws, Chief Justice Hinkson made it clear that, while there was not a positive obligation on the part of the municipality to provide shelter to its homeless population, so long as there was insufficient shelter available, the municipality could not prohibit the homeless from doing what they needed to do in order to ensure their own life, liberty and security of their persons.

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A Liberal majority government – what constitutional issues will it face?

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I do not think that anyone forecast a Liberal majority of the magnitude that swept the country last night. Sixty-eight and a half percent of eligible Canadian electors voted last night. Prime Minister-elect Justin Trudeau said that Canadians wanted “change – real change”. I think he is right. But what sort of change will that include and will it involve constitutional issues? The answer I think is “yes”. I will touch upon only four issues which require constitutional review or involves constitutional values.

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Election 2015 – our constitution at work…

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On October 19, 2015, Canada goes to the polls. The hurly burly of the Canadian version of democracy has been on display since early August when Prime Minister Stephen Harper asked the Governor General to dissolve Parliament and to call this election. What many of us do not appreciate is that this spectacle is probably one of the best examples of our constitution at work.

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Section 28 of the Charter – the forgotten provision – putting feminism back into gender equality

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This last week, lawyer and Ph.D. candidate and Vanier and Trudeau scholar, Kerri Froc, was interviewed by Jim Brown on the CBC program, The 180, about gender equality and the rationale behind s. 28 of the Charter. Section 28 states:

Rights guaranteed equally to both sexes

28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

Ms. Froc’s interview can be found at The 180 website and is well worth listening to.

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The niqab can stay – Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 194

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On September 15, 2015, the Federal Court of Appeal issued a short ruling from the bench in the appeal of Zunera Ishaq’s case respecting the Department of Citizenship and Immigration’s policy that requires women who wear a niqab to unveil in order to take the oath of citizenship. In Canada (Citizenship and Immigration) v. Ishaq, 2015 FCA 194, Madam Justice Mary Gleason rendered a short six paragraph oral set of reasons, issued in this manner so that Ms. Ishaq might still be able to take the oath of citizenship and vote in the upcoming election.
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Strata Corporations are not “government” for the purposes of the Charter

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A recent decision on the Supreme Court of British Columbia has dismissed a strata property owner’s constitutional challenges to certain provisions of the Strata Property Act. In The Owners, Strata Plan NW 499 v. Louis, 2015 BCSC 1487, Mr. Justice Armstrong held that, although creatures of statute, strata corporations were not “government” for the purposes of the Charter and therefore, the disgruntled Mr. Louis’ constitutional arguments were not supportable
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The British Columbia Court of Appeal puts the brakes on freedom of association – BCTF v. BC, 2015 BCCA 184

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After the Supreme Court of Canada made a number of decisions enlarging the scope of the fundamental freedom of association in the field of labour relations, in British Columbia Teachers Federation v. British Columbia, 2015 BCCA 184, the British Columbia Court of Appeal has slowed its growth and given some considered discussion of the Supreme Court’s recent pronouncements in the field. A majority of four of a five member panel led by Chief Justice Bauman and Mr. Justice Harris reviewed the law respecting freedom of association, including the recent decisions of the Supreme Court in Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 (“MPAO“)and Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 (“SFL“). Their comments provide penetrating insights as to one approach to understand the newly reconstructed freedom of association.

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