Category Archives: Charter of Rights and Freedoms

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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Secularism and the Canadian State – Where do we go from here? Mouvement Laique Quebecois v. Saguenay (City), 2015 SCC 16

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The Supreme Court of Canada recently pronounced on the appropriateness of a municipal council insisting on a prayer before holding its meetings. In Mouvement Laique Quebecois v. Saguenuay (City), 2015 SCC 16, Justice Gascon for the majority (Abella J dissenting on the question of the variable test for judicial review of administrative tribunals) held that City of Saguenay’s bylaw which provided for the use of such a prayer, even if it did not derive from any particular denomination, nonetheless offended the freedom of religion of atheists and agnostics (the freedom not to believe) and was therefore inoperative.

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For the record… the Supreme Court underscores the need for evidence in s. 15 discrimination claims: Kahkewistahaw First Nation v. Taypotat

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The Supreme Court of Canada has made it clear – if you are going to raise a s. 15 Charter discrimination claim, make sure that you have the evidence to substantiate your claim. Making claims on the basis of intuition, presumed facts or innuendo will not suffice. In Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, released on Thursday, May 28, 2015, Justice Abella, speaking for the Court, reinstated the judgment of the trial judge, Mr. Justice de Montigny of the Federal Court, Trial Division. She rejected the claim of former Chief Taypotat of the Kahkewistahaw First Nation that the First Nation’s Election Code’s education requirement that candidates for office hold a Grade 12 diploma or equivalent discriminated against him on the basis of his age and residence on the reserve. Her judgment focussed principally on the utter lack of evidence of the alleged discrimination as well as the fact that the grounds had not been expressly pled, at least not in the manner developed by the Federal Court of Appeal on its own initiative.

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A Tale of Two Cases: the Long Gun Registry case, Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14 and the Mandatory Minimum Sentence for Prohibited Firearms Case, R. v. Nur, 2015 SCC 15

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By a 5 to 4 margin, in Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14 (referred to as the Long Gun Registry case in this post), the Supreme Court of Canada ruled on March 27, 2015 that the Quebec government had no right to insist that, before destroying all data in the now defunct federal long gun registry, the federal government hand over to it the data relating to Quebec resident long gun owners. Two and a half weeks later, by a 6 to 3 margin, in R. v. Nur, 2015 SCC 15, the Court held that the mandatory minimum sentence for possessing prohibited firearms was contrary to s. 12 of the Charter and was not justified under s. 1. What is of interest, besides the result in these two cases, is how the Court divided and the basis for its division.
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A mediated collision between freedom of religion and state secularism: Loyola High School v. Quebec (Attorney General), 2015 SCC 12

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[Photo of religious educators in pre-Quiet Revolution Quebec]

Yet again, the Supreme Court of Canada wrestled with the thorny issue caused by the intersection of religious freedom and the secular state. In Loyola High School v. Quebec (Attorney General), 2015 SCC 12, the Court conceded some measure of victory to both sides of the equation. In a 4:3 majority decision, Justice Abella (LeBel, Cromwell and Karakatsanis JJ concurring) held that a private denominational school could be required to teach a state prescribed curriculum on world religions, religious cultures and their respective religious ethics from a neutral and secular perspective with the exception of the school’s own denomination. For that particular religion (here, Catholicism), the school was entitled to an exemption to teach its students from a Catholic perspective, an exemption that the provincial Minister had refused to provide.

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How technology and freedom of expression are inextricably intertwined – and how the iRevolution takes it another step further

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Paintings found on wall of Chauvet Cave – made circa 30,000 BCE

Recently, last Friday March 6th in fact, I had the privilege of speaking about freedom of expression to the Association des juristes d’expression française de la Colombie britannique. Normally, I would take my speaking notes and just convert them into a blog post. This is not possible here because first, my notes were “en français” and second, I undoubtedly butchered that otherwise beautiful language. This is part of the reason why there has been a bit of a lull between posts – I have been too busy reactivating old French language brain cells to prepare a new post.

This post is another in the series of posts in which I have explored the new Internet Age realities that exist for freedom of expression (for the other posts see “Freedom of expression and copyright in the Internet – The new realities of a cyberspace inhabited by copycats” (January 24, 2014), “The Internet Turns 25 Years Old – the Courts and the World Wide Web” (March 19, 2014) and, “The iRevolution revisited: when you share, are you expressing?” (November 13, 2014). In this blog post, I advance the thesis that the protection of freedom of expression must include not only the protection of the things expressed but the modalities and, specifically the technological modalities, by which human expression is transmitted and received.

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The legal profession’s ability to advocate in the public interest is upheld: Canada (Procureur general) v. Barreau du Quebec, 2014 QCCA 2234

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In a decision made in late 2014, the Quebec Court of Appeal affirmed the legal profession’s unique role in undertaking constitutional challenges. In a unanimous decision (Vezina, Savard, and Vauclair JJA), the Court upheld Justice Roy’s decision to reject the Government of Canada’s application to strike the claim of the Barreau du Quebec for want of standing. The relatively short decision, Canada (Procureur general) v. Barreau du Quebec, 2014 QCCA 2234, was released on December 4, 2014 and was a judgment “par la Cour”.

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Solicitor-client privilege – the Supreme Court finds that it is protected under the Charter: Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7

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Today, in Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7,the Supreme Court confirmed that one of the hallmarks of the legal profession, namely, solicitor-client privilege is one of the fundamental principles of justice worthy of constitutional sanction under s. 7 of the Charter. In reviewing the federal government’s anti-terrorism and anti-money laundering legislation, the Court also ruled that, to the extent the legislation required lawyers to obtain and keep information about their clients for the government, it constituted an unreasonable search and seizure contrary to s. 8 of the Charter.

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The Supremes “Charter” a new course in the waters of physician-assisted death in Canada

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Today, in its fifth decision of the year, the Supreme Court overturned yet another decades old precedent and found the Criminal Code provisions prohibiting physician-assisted death in end-of-life situations unconstitutional and contrary to s. 7 of the Charter. This is the third time this year that the Court has overturned one of its previous decisions on constitutional matters. In Carter v. Canada (Attorney General), 2015 SCC 5, the Court spoke with one voice and in its own name (the headnote states that the precedent was “distinguished” but make no mistake, it no longer applies to these same statutory provisions against assisted death). No one justice was accredited with the authorship of the reasons.

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Nova Scotia Supreme Court slams Barristers’ Society for its decision on Trinity Western University Law School

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(Photograph from trunews.com)

Last week, Justice Jamie Campbell of the Nova Scotia Supreme Court delivered a scathing indictment of the decision of the Nova Scotia Barristers’ Society (the “Society”) to recognize law degrees for the proposed law school at Trinity Western University (“TWU”) only if TWU changes its “community covenant” against sex outside the confines of a legal marriage between a man and woman. The focus of the Society’s concerns is that the Community Covenant would have the effect of discriminating against members of the LGBT community. His judgment (Trinity Western University v. Nova Scotia Barristers’ Society, 2015 NSSC 25) is the first of what will no doubt be a series of judicial pronouncements on the various provincial law societies’ decision to accredit or not to accredit TWU’s proposed law school. Challenges in British Columbia and Ontario are also well on their way to being heard. Yet again, the collision between equality rights and freedom of religion finds itself on the center stage of Canada’s judicial arenas. The last time this issue went to the Supreme Court of Canada was in 2001 in yet another TWU case, Trinity Western University v. British Columbia College of Teachers, 2001 SCC 31. While the Court held that the Charter was not directly applicable in that case, it did determine that any concerns of the College of Teachers respecting the discriminatory effects against homosexuals were to be subject to the respect for the principles of the religious faith professed by TWU. Justice Campbell does not consider that the time is nigh for that 2001 judicial determination to change.

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