Veils, Oaths, and Canadian Citizenship: Ishaq v Canada

On February 6, 2015, in the well-publicized decision of Ishaq v Canada (Minister of Citizenship and Immigration), 2015 FC 156 [Ishaq], the Federal Court ruled that it was unlawful for the Canadian Government to ban new citizens from reciting the citizenship oath with a face-covering veil. Since the decision was released, the Harper Government has announced emphatically that it will appeal the judgment.

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[filed: Charter Constitutional Law Federal Court Human Rights Religion]

R v Goleski: Who Has the Burden of Proof for “Reasonable Excuses”?

On February 11, 2015, the Supreme Court of Canada (“SCC”) dismissed the appeal of R v Goleski, 2014 BCCA 80 [Goleski], from the British Columbia Court of Appeal (“BCCA”). The SCC found that the BCCA had correctly interpreted s. 794(2) of the Criminal Code, RSC 1985, c C-46, as having imposed a persuasive burden on the accused to prove an exception, exemption, proviso, excuse, or qualification prescribed by law. In dismissing the appeal, the analysis that is now binding to all court levels in Canada is the one provided by Frankel J.A. of the BCCA.

This decision from the BCCA is of particular interest since it: (1) clarifies that the accused, rather than the Crown, bears the burden of proving on a balance of probabilities the factual foundation of a “reasonable excuse” for refusing to comply with a breathalyzer demand; and (2) distinguishes a “reasonable excuse” from other defences known to law.

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[filed: Criminal Law]

The YMCA, Taxation, and Statutory Interpretation: YMCA of Greater Toronto v Municipal Property Assessment Corporation

A recent ruling at the Court of Appeal for Ontario (“ONCA”), Young Men’s Christian Association of Greater Toronto v Municipal Property Assessment Corporation, 2015 ONCA 130 [YMCA, ONCA], held that the Toronto YMCA was not exempt from municipal property taxes on four properties to which it holds leases. The ONCA’s pithy decision rests on principles of statutory interpretation and an avoidance of the lower court’s lengthy discussion of the word “of.”

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[filed: Property Law]

Minority Language Schools Don’t Have to Be Perfect: NWT v Association des parents ayants droit de Yellowknife

Minority language rights were at the centre of a recent case heard by the Northwest Territories Court of Appeal (“NWTCA”), with the court ruling that equality does not mean perfect schooling conditions. The court, in Northwest Territories (Attorney General) v Association des parents ayants droit de Yellowknife, 2015 NWTCA 2, set aside a lower court ruling and affirmed that minority language education rights set out in s. 23 of the Charter are not automatically granted.

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[filed: Charter Constitutional Law]

Constitutionalizing Pursuit of the Client’s Cause: Canada (AG) v Federation of Law Societies

In a decision being lauded by the bar, the Supreme Court of Canada held that provisions of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, SC 2000, c 17 [PCTFA] violate sections 7 and 8 of the Charter in Canada (Attorney General) v Federation of Law Societies of Canada, 2015 SCC 7 [FLSC].

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[filed: Charter Criminal Law]

Naming Names in the FRO: Ontario (MCSS) v John Doe

The Family Responsibility Office (“FRO”) is a division of the Ministry of Community and Social Services that is responsible for collecting, distributing, and enforcing child and spousal support payments. It has broad enforcement powers for those who fall behind on their support. These include garnishing bank accounts, suspending driver’s licences and passports, and issuing writs of seizure and sale on property.

Use of these powers has made the FRO staff and individual employees the target of threats by delinquent support payors. These threats were the subject of the Ontario Court of Appeal’s (“ONCA”) recent decision in Ontario (Minister of Community and Social Services) v John Doe, 2015 ONCA 107, released on February 17.

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[filed: Access to Information]

Scott and Associates Engineering Ltd v Finavera Renewables Inc: An Illustration of Constructive Trusts and Unjust Enrichment

In Scott & Associates Engineering Ltd v Finavera Renewables Inc, 2015 ABCA 51, the Alberta Court of Appeal (“ABCA”) applied the doctrine of constructive trusts to an unjust enrichment that arose through a commercial dispute. The decision upheld the determination that the Appellant, Scott & Associates Engineering Ltd., could not receive such a remedy. In doing so, the ABCA refused to accept a liberal interpretation of the doctrine of constructive trusts.

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[filed: Restitution and Unjust Enrichment Trusts]

Morassut v Jaczynski: Property Division for Common Law Spouses by Stealth?

One of the criticisms laid against Ontario’s family law and succession law statutes is that they do not make allowance for people living in non-traditional relationships. The law provides a comprehensive formula for property division for married people when they divorce or one of them dies, but there is no similar entitlement for “common law” spouses who cohabit without being married. However, judicial decisions show more flexibility, particularly as Ontario courts are influenced by jurisprudence from British Columbia (where the statutes are also more liberal).

One provision that does exist in Ontario’s statutes is dependant’s relief, under which a common law spouse who was financially dependant on the other is entitled to make a claim for support. This was originally conceived of as a last resort for hardship cases, but court decisions have greatly increased the range of entitlement. The latest high profile decision is a case in which a common law husband who received nothing under the will of his wealthy wife received a multi-million dollar award. The original decision was Morassut v Jaczynski et al, 2013 ONSC 2856. One commentator described it as signalling that testamentary freedom is a “dying legal principle” in Ontario. It has now been affirmed on appeal by the Divisional Court, Morassut v Jaczynski, 2015 ONSC 502 [Morassut].

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[filed: Family Law Wills, Estates, and Trusts]

The Paradox of Certainty: Retrospective Application of New Self-Defence Provisions in R v Evans

Courts have often struggled to interpret the application of newly enacted law on events that occurred prior to the law’s enactment. The British Columbia Court of Appeal (“BCCA”) tackled the interpretation of retrospective application in R v Evans, 2015 BCCA 46 [Evans]. This decision marks the first consideration by an appellate court on whether the new self-defence provisions, namely, sections 34 and 35 of the Criminal Code, RSC 1985, c C-46, could apply retrospectively. In ultimately determining that the new provisions did not apply retrospectively, the court weighed the balance between legal certainty and potential unfairness for the accused in these circumstances.

Justice Frankel for the BCCA approached this balance by underscoring the importance of clarity of laws which allow citizens to “govern themselves accordingly” (Evans, para 25). If the new self-defence provision could apply retrospectively, then the lines of criminal conduct may blur into absurdity, with the punishment of a criminal act depending “on when the determination of that issue [was] made” (para 27).

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[filed: Criminal Law Statutory Interpretation]

Does Government Spying Make Us Safer? Liberty v Secretary of State

A Decision of the United Kingdom’s Investigatory Powers Tribunal (“the Tribunal”) in Liberty v Secretary of State, [2015] UKIPTrib 13 77-H [Liberty], endorsed the importance of transparency in the surveillance practices of British security agencies such as the Security Service (“MI5”), the Secret Intelligence Service (“MI6”), and the Government Communications Headquarters (“GCHQ”). The decision emphasized meaningful procedural protections for citizens as a necessary counterbalance to intrusive state powers. The Tribunal’s rationale marks an important contrast to the approach adopted by Canadian policymakers in striking a balance between state security and civil liberties in a time of expanding state surveillance powers.

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[filed: Access to Information Internet Privacy]