⚖️ Judicial activism

The notwithstanding clause can't silence the court. Plus Saskatchewan takes the reins on natural gas, CanLII expands AI summaries, Ontario gets it done, and the lawsuit against ArriveCAN’s improper quarantine orders

Imagine winning the lottery. In the literal sense. Or at least thinking you’ve won — right up until Powerball tells you they posted the wrong numbers on their website. That’s the situation that led John Cheeks to sue Powerball for the total jackpot amount of US$340 million, plus interest and other damages.

The full prize amount seems like a stretch, but you can’t blame Cheeks for claiming some emotional distress. I’d sure be ticked if my net worth briefly visited the moon only to plummet back down to earth a few days later.

— Dylan Gibbs

TODAY'S DOCKET

6 min read

  • Is the notwithstanding clause all it’s cracked up to be?

  • Saskatchewan takes the reins on natural gas

  • CanLII expands AI summaries

  • Ontario gets it done

  • The lawsuit against ArriveCAN’s improper quarantine orders

CHARTER

Dialogue or judicial activism?

Judge sitting at bench in courtroom holds sign with the word activist crossed out

Classroom pronoun policies and alleging that branches of government aren’t staying in their lanes. Name a more iconic duo.

The latest? On Friday, Justice Megaw of the Saskatchewan Court of King’s Bench said UR Pride can still challenge Saskatchewan’s parental consent policy — even though the province invoked the Charter’s notwithstanding clause. The result itself is noteworthy, but Justice Megaw also stirred up controversy with pointed comments about Saskatchewan’s handling of the case.

How we got here: Saskatchewan’s policy requires parental consent before schools use the preferred name or pronouns of a student under the age of 16. Justice Megaw granted an interim injunction suspending the policy last fall, but Saskatchewan invoked the notwithstanding clause. The Parents’ Bill of Rights — which the government enacted before the litigation even made it to a full hearing — prioritizes the parental consent requirement over all of the Charter sections mentioned in UR Pride’s initial court application (sections 2, 7, and 15).

UR Pride argued the Court should still make a ruling (notwithstanding the government’s notwithstanding use). The organization also added a new argument, relying on a section of the Charter not covered by the Parents’ Bill of Rights.

No silencing the court: Justice Megaw agreed with UR Pride — the Court still has jurisdiction to rule on the Charter challenge. The Court can’t strike the law down using sections of the Charter the Parents’ Bill of Rights overrides, but it can still tell the government — and the public — whether Saskatchewan’s policy violates the Charter:

[Issuing a declaratory judgment despite the notwithstanding clause] has purpose and meaning beyond necessarily interfering in the operation of legislation validly passed and enacted by the legislative branch of government. It is an "effective and flexible" remedy to provide legal comment on the actions taken by government. It permits the citizenry to continue to participate in the democracy and to challenge that which a government has done.

Para 165

That doesn’t mean the Court will decide the issues — Justice Megaw said the Court needs to hear the parties’ evidence at a full hearing. Once the evidence is in, the Court will decide whether it’s worth making a Charter ruling, and if UR Pride’s application is moot.

But the prospect of the Court treating UR Pride’s lawsuit as moot down the road didn’t make Saskatchewan any happier about the result. Saskatchewan’s Attorney General issued a statement saying she “plans to immediately write to other Attorneys General across the country regarding this potential precedent.” She called it historic for a Canadian court to proceed with a court case despite a government invoking the notwithstanding clause.

Don’t call it activism: One of Saskatchewan’s arguments was that Justice Megaw would be engaging in judicial activism if he ruled in UR Pride’s favour. That one didn’t go over too well.

Justice Megaw said it’s “misplaced and inappropriate” for litigants to accuse a court of engaging in inappropriate conduct. It’s not that Courts are immune from criticism, but activism accusations should be left to the commentators. In other words, don’t educate the Court about its job description in your factum.

Suggesting that a court should refrain from acting in a legitimate dispute between two parties on the basis that to do so would be judicial activism does little more than attempt to dissuade a court from doing precisely that which it is both constitutionally charged to do, and which fulfils its function in a free and democratic society. It might further suggest to the general public that by engaging in a review of fundamental rights pursuant to the Charter, the court is doing something wrong, or at least beyond its purview.

Para 27

HEARSAY ROUNDUP

Canadiana

⛽️ The Saskatchewan government is now the official distributor of natural gas for the province, positioning Saskatchewan to withhold carbon tax payments from the federal government. The province already stopped collecting carbon tax on natural gas in protest of the federal government’s exemption for home heating oil. But sending the payment to Ottawa is where the rubber really hits the road. If Saskatchewan withholds payment, it will likely tee up a legal battle over the home heating oil exemption and Saskatchewan’s response.

🧑‍⚖️ The federal government made judicial appointments in Nova Scotia and Nunavut.

  • In Nova Scotia, Justice Robin Gogan was elevated to the Court of Appeal. Terrance G. Sheppard, K.C. and Christine Doucet were appointed to the Supreme Court (Family Division). The Prime Minister also appointed Justice R. Lester Jesudason as the new Associate Chief Justice of Nova Scotia’s Supreme Court (Family Division).

  • Fun fact: Justice Sheppard fills a position that’s been vacant for 2.5 years.

  • In Nunavut, Faiyaz Alibhai was appointed to the Nunavut Court of Justice.

🤖 CanLII is expanding its AI-generated summaries. CanLII started generating AI summaries of Saskatchewan law last fall (like this one). Thanks to additional funding, CanLII also plans to summarize cases and legislation from Alberta, Manitoba and Prince Edward Island.

💵 The federal government is improving free legal services for Ukrainians looking to temporarily relocate to Canada. The government is expanding an existing legal advice hotline and website by investing in Pro Bono Ontario.

🚦 Ontario tabled the Get It Done Act. The Act will make it easier for the government to proceed with major infrastructure projects (like two proposed highways) without getting hung up on pesky environmental assessments. Among other changes, it also bans tolls on provincial highways and ensures that any new carbon tax in the province would require a referendum.

🙅 The Alberta Court of Appeal penalized a criminal appellant who let their appeal lapse three times in a row. According to Justice Slatter, “[it] might be the first time in which a penalty has been imposed for the failure to meet filing deadlines in a criminal appeal.”

😷 The blows keep coming for ArriveCAN. There’s now a proposed class action brought on behalf of plaintiffs the app wrongly instructed to quarantine.

📉 New Brunswick whittled its backlog of child protection cases from more than 120 down to zero.

Dylan Gibbs

That’s all for today.

You can also find me on LinkedIn and X/Twitter @DylanJGibbs.

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