Centre for Constitutional Studies https://ualawccsprod.srv.ualberta.ca Thu, 09 Jul 2020 12:21:41 +0000 en-US hourly 1 Caging the Virus: Is Mandatory Isolation Constitutional? https://ualawccsprod.srv.ualberta.ca/2020/07/caging-the-virus-is-mandatory-isolation-constitutional/ Thu, 09 Jul 2020 12:21:41 +0000 https://ualawccsprod.srv.ualberta.ca/?p=7014 Introduction
Recent news articles raise concerns about how government measures to contain COVID-19 may infringe the Charter of Rights and Freedoms. One of the many measures raising concerns is mandatory isolation. While it is likely that the measures violate Charter rights, a court will likely find them constitutional. This article will explain why.
On March 17, 2020, the Government of Alberta declared a public health emergency due to pandemic COVID-19 and proceeded to implement emergency protections. These emergency protections include public health orders that restrict gatherings and services, and require mandatory isolation.

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Conversion Therapy Ban: Does Calgary’s New Bylaw Violate Religious Freedom? https://ualawccsprod.srv.ualberta.ca/2020/07/conversion-therapy-ban-does-calgarys-new-bylaw-violate-religious-freedom/ Tue, 07 Jul 2020 20:08:00 +0000 https://ualawccsprod.srv.ualberta.ca/?p=6930 On May 25th, 2020, the City of Calgary passed the Prohibited Businesses Bylaw that prohibits the practice of “conversion therapy”. Conversion therapy is any form of treatment that seeks to change someone’s sexual orientation, gender identity, or gender expression. The therapy can take the form of talk therapy, behavioural or aversion therapy, spiritual prayer, exorcism, and medical or drug-based treatments.

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Positive that the Government is obligated to support you? Think again https://ualawccsprod.srv.ualberta.ca/2020/06/positive-that-the-government-is-obligated-to-support-you-think-again/ Mon, 29 Jun 2020 17:03:25 +0000 https://ualawccsprod.srv.ualberta.ca/?p=6639 While financial struggles are not unique to times of emergency, the COVID-19 pandemic has thrown many Canadians into dire straits, such as losing their jobs, being unable to support their families, or even pay their rent. Since mid-March, the Federal Government has been providing financial support to Canadians out of work because of COVID-19.

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The Freedoms We Cannot Afford to Ignore During COVID-19 https://ualawccsprod.srv.ualberta.ca/2020/06/the-freedoms-we-cannot-afford-to-ignore-during-covid-19/ Mon, 29 Jun 2020 13:04:10 +0000 https://ualawccsprod.srv.ualberta.ca/?p=6632 One of Canada's forgotten constitutional freedoms has quickly become one of the most restricted in the era of COVID-19. In the nearly four decades since the Charter of Rights and Freedoms arrived, Canadian courts have paid almost no attention to section 2(c), which guarantees freedom of peaceful assembly.

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Are Protests Illegal in Alberta? Charter Issues with Bill 1 https://ualawccsprod.srv.ualberta.ca/2020/06/are-protests-illegal-in-alberta/ Fri, 26 Jun 2020 16:21:31 +0000 https://ualawccsprod.srv.ualberta.ca/?p=6611 In February 2020, amidst protests across the country interfering with railways and pipeline construction, the Government of Alberta introduced the Critical Infrastructure Defence Act. More commonly known as Bill 1, it outlaws interference with “essential infrastructure”. Several commentators oppose the Bill, arguing it violates the Charter of Rights and Freedoms. A group of professors from the University of Calgary called on the Government to recognize “that Bill 1 violates the Charter”. This article will summarise the Bill and analyze some of the key ways in which it may violate the Charter.

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To be Tried Within a Reasonable Time: Affirming the Jordan Ceilings https://ualawccsprod.srv.ualberta.ca/2020/06/to-be-tried-within-a-reasonable-time-affirming-the-jordan-ceilings/ Tue, 23 Jun 2020 20:41:26 +0000 https://ualawccsprod.srv.ualberta.ca/?p=6383 In October 2014, police charged a B.C. man with sexual assault against his daughter. Two years later a B.C. judge issued a stay of proceedings, dismissing the case against the man because the prosecution took too long, in the judge’s words: “the delay was excessive”. The result is that a man accused of a serious crime now walks free without a trial. This was an ordinary case, reflective of a shift in Canadian law brought about by the Supreme Court of Canada’s 2016 decision in the Jordan case. Since then, Canada’s judiciary takes the timeliness of trials more seriously than ever before. Jordan created presumptive ceilings – 18 months for provincial court trials and 30 months for superior court trials. If a trial takes longer than the ceiling, courts presume it is unreasonable.

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COVID-19 and the Exercise of Legislative Power by the Executive https://ualawccsprod.srv.ualberta.ca/2020/06/covid-19-and-the-exercise-of-legislative-power-by-the-executive/ Mon, 22 Jun 2020 14:14:11 +0000 https://ualawccsprod.srv.ualberta.ca/?p=6345 Legislation Commented On: Regulations Act, RSA 2000, c R-14 and Public Health Orders issued in relation to COVID-19

The COVID-19 pandemic has become a rare opportunity to study the widespread exercise of emergency lawmaking powers in Canada. Governments have enacted legal rules on matters such as social distancing, quarantine, economic controls, regulatory relief, employment standards, landlord-tenant, access to justice, and health care protocols. Commentators have warned that we must remain vigilant in ensuring these emergency measures do not offend the rule of law, and this message is likely to intensify as more emergency measures are used to either further the current shutdown or control our emergence from it; for example, in relation to surveillance and privacy rights as Joel Reardon, Emily Laidlaw, and Greg Hagen recently noted here. These substantive concerns are amplified by the fact that most COVID-19 emergency powers are being exercised by the executive branch of government and its delegates, using legislative power delegated to them in public health or emergency statutes. Because it is unlikely that legislatures envisioned such an extensive use of these powers for a prolonged time period, shortcomings and gaps in the lawmaking process are becoming apparent. Hallmarks such as organization, clarity, predictability, consistency, transparency, and justification – which, in normal times, provide the executive with much of its legitimacy to govern – have been impaired or are missing altogether in the exercise of legal power to contain COVID-19. This post examines how Alberta ministers and the Chief Medical Officer of Health have been exercising emergency powers so far during the pandemic, and makes some pointed observations on the hallmarks of legitimate governance and the role of the Regulations Act, RSA 2000, c R-14, in this regard.

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Alberta and its Physicians Clash Over a Right to Something Besides Striking https://ualawccsprod.srv.ualberta.ca/2020/06/alberta-and-its-physicians-clash-over-a-right-to-something-besides-striking/ Wed, 17 Jun 2020 20:40:05 +0000 https://ualawccsprod.srv.ualberta.ca/?p=6275 On 9 April 2020, the Alberta Medical Association (AMA) filed a lawsuit against the Government of Alberta alleging the Government violated the rights of the AMA and its members by unilaterally terminating a contract between the AMA and the Government.[1] The AMA represents physicians in Alberta, with one of its key roles being to negotiate with the Government on their behalf.[2] They claim the Government of Alberta violated their members’ Charter right to freedom of association.[3] This right protects employees’ ability to bargain collectively with employers – allowing employees to negotiate with employers more effectively.

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Pandemic Preparedness and Responsiveness in Canada: Exploring the Case for an Intergovernmental Agreement https://ualawccsprod.srv.ualberta.ca/2020/06/pandemic-preparedness-and-responsiveness-in-canada-exploring-the-case-for-an-intergovernmental-agreement/ Mon, 15 Jun 2020 14:17:56 +0000 https://ualawccsprod.srv.ualberta.ca/?p=6260 Canada’s lack of a coordinated response to the COVID-19 pandemic and the improvisatory nature of (at least many) individual provincial responses suggest that the Canadian approach to public health emergency preparedness and early public health emergency responsiveness remains inadequate. The federal government primarily played an advisory, spending, and/or data collating role in its “early” (though some said “late” where it followed provincial initiatives) response to the crisis. Provinces took and continue to take various approaches, some of which (like restrictions on interprovincial movement) have questionable jurisdictional bases and human rights implications.

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Call for Papers https://ualawccsprod.srv.ualberta.ca/2020/06/call-for-papers/ Fri, 12 Jun 2020 16:56:08 +0000 https://ualawccsprod.srv.ualberta.ca/?p=6198 The Review of Constitutional Studies, is now accepting submissions of manuscripts in English or French for its next two issues.

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