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Should be interesting times in New Brunswick ahead, challenging a blatantly unconstitutional regulation the singles out the inherently gendered service for differential treatment. https://twitter.com/travisfortnum/status/1347173323982180354
As @regjohnstone's work shows, in the past New Brunswick has successfully stalled and evaded litigation against its restrictive abortion policies. I'm skeptical the government will be as successful this time around.
I'm reading the CCLA Statement of Claim, which can be found here: https://ccla.org/cclanewsite/wp-content/uploads/2021/01/2021-01-06-Statement-of-Claim-CCLA-v.-New-Brunswick-served-on-Jan-6th1.pdf
I don't think their argument that Regulation 84-20 is ultra vires on division of powers grounds will hold up. 3/n
I don't think their argument that Regulation 84-20 is ultra vires on division of powers grounds will hold up. 3/n
Unlike the restrictions brought in by Nova Scotia that were struck down by the SCC in 1993, Regulation 84-20 is a funding decision. Harder to describe as 'criminal law' in pith and substance, even if I agree it's arbitrary and not based on medical evidence. 4/n
The Charter arguments are where the rubber meets the road. I think s7 is an uphill battle. There's no criminal penalty involved. Nothing involving anyone's treatment by the justice system. The claim here is, in effect, a positive right of access. 5/n
So I think s15 - equality rights - ought to be the focus. Simply put, NB discriminates on the basis of sex in its funding decision involving a medically necessary service. It's blatant, and unsupportable. 6/6
