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.
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?
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.
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?
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.
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.
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.
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.
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 Continue reading →