Welcome to Rights Angle, the ACLRC blog. Here, ACLRC's lawyers and educators seek to provide insight on the human rights and civil liberties issues that are important to Albertans today.
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In Carter v Canada (Attorney General), 2016 SCC 4 (Carter 2016) the Supreme Court of Canada (SCC) granted an interesting constitutional remedy – a constitutional exemption during an extension of the suspended declaration of invalidity – which has an uncertain foundation in the text of the Constitution Act 1982. This case provides an opportunity to further explore the remedy of constitutional exemptions. In this post, I will be looking at the history of this remedy, its sources, how it operates, issues related to its unpredictable invocation and its availability in the context of present case.
Recently, the Alberta town of Taber passed a Community Standards By-Law (see: http://www.taber.ca/DocumentCenter/View/1006) that has garnered a fair bit of attention, even internationally. See: http://www.macleans.ca/news/canada/tabers-real-target-mennonites/ Some of the attention and response has been light hearted, but the passing of the by-law and the response to it actually lead to some more serious questions about the ability of municipalities to pass Community Standards by-laws, which exist in numerous places in some form or another. The issues we see as important include:
1. Is a by-law that resembles a provision of the Criminal Code intra vires (within the jurisdiction or authority of) the municipal government?
2. How do Community Standards relate to Charter rights like freedom of expression and assembly?
Last fall, the Supreme Court of Canada found a hearing fee scheme unconstitutional because it prevented people from accessing courts (see Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59 (Trial Lawyers)). In Taylor v St. Denis, 2015 SCKA 1 (St Denis), the Saskatchewan Court of Appeal was asked to extend this reasoning to exempt a self-represented litigant from the cost of mandatory trial transcripts. The Court declined this request, choosing instead to distinguish the landmark Supreme Court decision. Unfortunately, the decision in St Denis was impacted by deficits in the applicant’s evidence and arguments. Despite these shortcomings, St Denis serves as a useful indicator to highlight how the Supreme Court’s decision will function as a future precedent.
In Pridgen v University of Calgary, 2012 ABCA 139, one member of the Alberta Court of Appeal, Justice Paperny, came to the conclusion that the Canadian Charter of Rights and Freedoms could apply to the actions of the University of Calgary in disciplining the Pridgen brothers for non-academic misconduct (see a post on that decision here). In BC Civil Liberties Association v University of Victoria, 2015 BCSC 39 (“UVic”), the British Columbia Supreme Court ruled that the Charterdid not apply, and distinguished Pridgen on several grounds.
Pridgen involved a number of University of Calgary students in the Faculty of Communication and Culture (now Arts) who posted derogatory comments about one of their instructors on Facebook, and who were disciplined for non-academic misconduct. The discipline included writing mandatory letters of apology and lengthy periods of probation.
The Alberta Legislature has been the subject of some controversy in recent weeks. On November 20, Liberal MLA Laurie Blakeman introduced Bill 202: The Safe and Inclusive Schools Statutes Amendment Act, 2014, 3rd Sess, 28th Leg, Alberta, 2014. A week later, in an abruptly called press conference, Premier Jim Prentice described Bill 202 as “unnecessarily divisive” and announced that his government would introduce its own bill dealing with the issues raised by Bill 202. On December 1, Bill 10: An Act to Amend the Alberta Bill of Rights To Protect Our Children, 3rd Sess, 28th Leg, 2014 was introduced by the Progressive Conservatives. After being subjected to widespread public scrutiny, Bill 10 was amended on December 3, 2014. By the next day, it was clear that the amendment did not quell the rising tide of opposition and on December 4, Premier Prentice announced he was deferring Bill 10’s Third Reading until 2015.
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