Constitutional rewrites

The Supreme Court is officially back in full swing. The Court published its first decision since July this week (covering whether corroborative evidence can boost the reliability of hearsay). And the first hearings of the fall session kick off on October 8.

Next week, I’ll be doing an SCC-focused special edition. What has the Court accomplished this year and what should you expect from the upcoming hearings?

For now, here’s a quick update on the latest legal news.

— Dylan Gibbs

• Backdating constitutional changes

• Streamlined study permit reviews

• The results of last week’s survey

• A travelling court

• Drip pricing

• Freedom

DECISION SPOTLIGHT 🔦

Rewriting Canada’s constitutional history?

CPR v. Saskatchewan, 2024 SKKB 157

You don’t see constitutional amendments every day — especially retroactive ones. It might sound a bit dystopian, but the Saskatchewan Court of King’s Bench said there’s nothing wrong with backdating a constitutional rewrite.

A bit of context: Building a transcontinental railway comes with perks. In 1880, Canada promised not to tax the Canadian Pacific Railway Company’s (CP) main line through the prairies. And it bound the prairie provinces to the same deal when they joined Confederation —the founding documents for Manitoba, Saskatchewan, and Alberta enshrined CP’s tax immunity in the Constitution.

The prairies started taxing CP in 1966 when the company agreed to trade its preferred tax status for new legislation. But no one ever amended the Constitution.

At least, not until CP sued everyone for tax refunds.

The amendment: Saskatchewan drafted a constitutional amendment to avoid a massive repayment. The amendment gives Saskatchewan the power to tax CP — retroactive to 1966 — which kills the basis for CP’s lawsuit.

• This isn’t one of those (arguably unlawful) unilateral amendments. It passed with support from Saskatchewan legislators, the Senate, and the House of Commons — the only support needed for a Saskatchewan-specific change.

• But CP still challenged the amendment, arguing that governments can’t change the Constitution retroactively.

The Court’s decision: Justice Kilback said there’s nothing wrong with retroactivity. As long as the federal and provincial governments follow the Constitution’s amending procedures, they have the same power to change the Constitution that the UK Parliament had before patriation. And the Brits were no strangers to retroactive amendments.

CP argued retroactive amendments violate the rule of law. But Justice Kilback disagreed. He said the Constitution’s amending procedure provides all the protection needed to uphold our legal norms.

Are retroactive amendments fair? Maybe not. But fairness isn’t the measuring stick for applying the law.

FROM THE READERS

Punishing lawyers for their choice of client?

Last week I asked about the Manitoba NDP’s recent decision to kick Mark Wasyliw out of its caucus, and Queen City Pride’s decision banning MLT Aikins from its parade earlier this year.

Here’s how the answers shook out:

Here are a few reader comments capturing the essence of the top two responses.

Neither should have happened:

• “No lawyer should suffer any criticism, or restriction on their participation elsewhere in society, for performing [their ethical obligation to represent and advocate for clients]. This is a fundamental tenet of our justice system and the rule of law.”

Banning MLT was okay:

• “Every accused, no matter how loathsome the allegation, has a right to a vigorous defence. [But] MLT Aikins' choice to support the Saskatchewan government actually helps them take away trans kids' Charter rights. [B]anning them from the Pride parade was entirely legitimate.”

• “Does MLT have a right to participate in a pride parade? … If the organizers have to accept anyone regardless of their view as to how the relevant person/organization has impacted the LGBTQ community, they'd have to accept the Westboro Baptist Church, for example.”

BY THE NUMBERS

$38.9M: the size of Canada’s first drip pricing sanction. According to the Competition Tribunal, Cineplex misrepresented the cost of movie tickets with “contradictory and incomplete information” about online booking fees. It’s the first decision applying the Competition Act’s new drip pricing provisions. But those wondering how the Tribunal interpreted the legislation need to sit tight — the full decision is expected next week, after the parties sort out redactions. Cineplex already said it plans to appeal.

24,000: the number of immigration filings the Federal Court expects to review this year — four times its pre-COVID yearly average. Given the staggering increase, the court is piloting a streamlined process for reviewing study permit refusals. Starting October 1, the Court will resolve cases that qualify for the pilot in 5 months (cutting down the typical timeline of 14–18 months).

450–600: An estimate of the households adopting a restrictive covenant to fight Calgary’s zoning choices. Like many other Canadian municipalities, Calgary adopted a permissive stance on fourplexes to get a slice of federal funding. Disgruntled residents are appealing the zoning decision in Court. But some are also choosing a less conventional form of protest — neighbours are registering restrictive covenants against title to stop future owners from building multifamily housing.

HEARSAY ROUNDUP

• Albertans’ legislated rights will soon include property protections, the right to refuse vaccinations, and the right to own legal firearms. Alberta Premier Danielle Smith announced the changes by high-fiving children.
   

• The Nova Scotia Court of Appeal sat outside of Halifax for the first time this week. The Court held a special sitting on Cape Breton Island to promote transparency and accessibility. (More on Law360)

   

• The Canadian Judicial Council is developing guidelines for federally appointed judges on AI and social media use.

   

• Disability rights groups are challenging MAiD. They say assisted dying violates the Charter by pushing people with disabilities towards premature death.

   

• A lawsuit in Manitoba wants to extend Charter rights to Lake Winnipeg. The Southern Chiefs’ Organization says the Lake deserves to be protected like a living being with the right to life, liberty, and security of the person.

THINGS NOT TO DO 😤

Don’t sexually assault your moot team. The Law Society of Manitoba suspended a lawyer for 30 days who got blackout drunk at a moot tournament and inappropriately touched one of the students he was coaching.

Don’t pretend to be in a different city when you’re really in the courthouse library. A lawyer who relied on an out-of-province scheduling conflict to adjourn a BC disciplinary proceeding had a bad day in court.

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