⚖️ Language of choice

SCC goes all-in on Charter values. Plus BC's first Indigenous chief justice, EU artificial intelligence legislation, and lawyers behaving badly.

Good morning.

Donald Trump was supposed to testify again today in his civil fraud trial, but he changed his mind. Having had time to reflect, Trump notes that he "VERY SUCCESSFULLY & CONCLUSIVELY" testified last month and has “NOTHING MORE TO SAY”.

Jeez — must be nice to have your perception of past work product improve over time. I’ll be trying to take that page out of Trump’s book this week (just that one though).

— Dylan Gibbs

TODAY’S DOCKET

  • SCC bolsters minority language education and unwritten Charter values

  • BC’s first Indigenous chief justice

  • Lawyers behaving badly

  • EU’s shiny new AI law

SCC

Full steam ahead for Charter values

Business man with Doré nametag holds scales of justice. Money on one side of the scale and Charter of Rights and Freedoms on the other.

Do administrative decision-makers need to consider unwritten Charter values? In a big decision for administrative law and minority language rights, the Supreme Court answered that question on Friday with an emphatic, “yes”. The Court breathed new life into its controversial Doré decision, which some thought was headed toward extinction before this case.

What happened: Five parents in the Northwest Territories wanted to send their kids to a French first language school. Section 23 of the Charter guarantees some parents the right to educate their children in whichever official language is the linguistic minority where they live, but these parents were non-rights holders who didn’t qualify. The parents did have some things going for them though. They were active in the Francophone community and had the support of the NWT’s French Language School Board. It sure seemed like admitting their children would be a net positive for French language in the NWT.

But that didn’t matter to the NWT’s Education Minister. Instead of looking at the individual circumstances of each family, the Minister relied on a general government policy about the types of students eligible for French schools and denied each of the admission applications.

On appeal: The parents argued the Minister should have considered the values underlying section 23 of the Charter — even though the parents didn’t qualify as rights holders themselves. The Supreme Court agreed.

  • Administrative decision makers need to strike a proportionate balance when their decisions implicate the Chartereven if the decision engages Charter values without actually limiting Charter rights.

  • It should be pretty obvious when Charter values are in play, either from the nature of the decision or because one of the parties mentions it.

  • If the decision maker doesn’t consider the relevant Charter values, or doesn’t balance them properly against the government’s objectives, the decision will be unreasonable.

The upshot for the parents was that the Minister got it wrong. The admission decisions touched on the Charter values of preserving and developing minority language communities. And the Minister didn’t meaningfully consider those values when making the admission decisions. That doesn’t mean the government needs to accept every single person who applies to a French school, but they at least need to give it some thought.

HEARSAY ROUNDUP

Canadiana

👨‍⚖️ The Honourable Leonard Marchand is now the first Indigenous person to serve as chief justice of British Columbia. Before Friday’s promotion, Chief Justice Marchand served as a judge at every level of court in the province. He’s the son of Len Marchand, Canada’s first cabinet minister of First Nations descent.

🥾 The Law Society of British Columbia disbarred a lawyer for sexually assaulting a prospective client. During a preliminary meeting about getting the client’s husband out of jail, the lawyer touched the client inappropriately before saying, “Nicer you are to me now, the sooner we get your husband home.”

💸 The Crown wants a 3-year sentence for the former New Brunswick deputy attorney general who stole $481,148 from his clients while working as a private lawyer.

🙅 A Winnipeg-based immigration law firm is boycotting legal aid work and calling for Manitoba to raise the amount it pays for immigration files.

💨 Plaintiffs filed a proposed class action lawsuit against a cement plant in Exshaw, Alberta. The plaintiffs say the plant emits foul odours, loud noises, and carcinogenic dust.

🏥 Claims against a nurse and a hospital in New Brunswick don’t have enough in common to proceed together as a class action. Eight plaintiffs allege the nurse improperly administered the drug oxytocin, forcing each of them to have an emergency c-section. A judge said that each claim will require separate expert evidence on whether the nurse breached the standard of care and what caused the emergency c-section.

Beyond the border

🤖 The European Union reached a provisional agreement on comprehensive regulations for artificial intelligence. The proposed law would restrict the use of AI for things like emotion recognition in the workplace, manipulating human behaviour to circumvent free will, and exploiting human vulnerabilities like age or disability. The draft legislative wording hasn’t been published yet, but the European Parliament’s press release gives an overview of what it covers.

🇺🇸 Kate Cox is fighting to get an abortion in Texas — she’s the first person to ask for a court-ordered exemption from state abortion laws since the US Supreme Court overturned Roe v. Wade last year. Because of a genetic defect, Cox’s baby won’t survive her pregnancy and carrying the baby to term poses a risk to Cox’s future reproductive health. A district court judge granted an order on Thursday permitting Cox to get the abortion, but the state’s Supreme Court temporarily halted that order the next day.

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