R v Nur: The Battle of Two Approaches to Challenging a Mandatory Minimum Sentence Under s. 52 of the Constitution Act, 1982

At the heart of the debate surrounding mandatory minimum sentences in Canada lies the insular but simple fact that Parliament, rather than the judiciary, dictates the application of such sentences to ensure that all offenders convicted of a specific crime receive at least a minimum term of imprisonment, regardless of the circumstances which surround the offence and the offender.

However, on April 14, 2015, the Supreme Court of Canada (“SCC”) came one step closer to regaining its control over sentencing with the release of its split decision in R v Nur, 2015 SCC 15 [Nur], on whether or not the mandatory minimum sentences of three and five years for possession of a loaded prohibited firearm, contrary to s. 95(1) of the Criminal Code, RSC 1985, c C-46, contravened the right not to be subjected to any “cruel and unusual punishment” under s. 12 Canadian Charter of Rights and Freedoms.

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[filed: Charter Constitutional Law Criminal Law]

Hired Guns or Participating Witnesses? The Westerhof Appeal Shapes Expert Report Rules

In Westerhof v Gee Estate, 2015 ONCA 206 [Westerhof], the Court of Appeal for Ontario (“ONCA”) determined that experts who give opinions based on their participation in the events of a proceeding (a “participant expert”) may not need to comply with Rule 53.03 of the Rules of Civil Procedure, RRO 1990, Reg 194.

Rule 53.03 requires that experts provide a detailed report with a signed acknowledgement. Compliance with this Rule normally extends to all experts “engaged by or on behalf of a party.” However, this wording indicates that such a rule only applies to “litigation experts.” While there are compelling policy reasons for litigation experts to comply with Rule 53.03, these reasons do not extend to participant experts and other non-party experts. As a result, the Court of Appeal concluded that compliance with the rule is dependent on the type of expert, and not on the type of the evidence as claimed by the Divisional Court.

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[filed: Civil Procedure]

Hopkins v Kay: Health Law Information Remains Protected by the Common Law

In Hopkins v Kay, 2015 ONCA 112 the Ontario Court of Appeal (“ONCA”) ensured that parties who suffer misuse of their private health information can claim common law damages against the wrongdoer. The court found that statutory damages under the Personal Health Information Protection Act, 2004, SO 2004, c 3, Sch A [PHIPA], did not create an exhaustive means of redress.

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[filed: Access to Information Torts]

Religious Organization Oppressed its Members: Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta

A landmark decision of the Alberta Court of Appeal (“ABCA”) in Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta, 2015 ABCA 101 [Sandhu], extends the oppression remedy outside of the corporate context and into the governance of religious organizations. Where governing members of religious organizations act oppressively, Alberta’s Religious Societies’ Land Act, RSA 2000, c R-15 [RSLA], permits other members to apply to a court and have the organization wound up. Members of Edmonton’s Siri Guru Nanak Sikh Gurdwara (“the Society”) made a successful claim under this provision, leaving an Alberta Chambers Judge to decide between winding up the society or fashioning a less severe remedy.

Choosing the latter option, the judge designed a remedy that restructured the religious society’s governance and internal processes.  Though intrusive, the remedy was upheld by the ABCA as an appropriate exercise of courts’ equitable jurisdiction in cases of oppression.

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[filed: Contracts Remedies Statutory Interpretation]

Police Officers Infringed Rights with Selective Searches during G20: Figueiras v Toronto (Police Services Board)

In Figueiras v Toronto (Police Services Board), 2015 ONCA 208, the scope of common law police powers were at issue in regards to their conduct with protesters during the 2010 G20 summit in Toronto. In what has been hailed a victory for G20 demonstrators, the Ontario Court of Appeal granted Mr. Figueiras’ appeal in holding that officers had infringed his Charter right to freedom of expression and his common law liberty rights, and had committed the tort of battery.

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[filed: Charter]

More on Morin and Institutional Delay: R v Williamson

The Supreme Court of Canada (“SCC”) will have an opportunity to bring some much-needed clarity to how analyses of unreasonable delay pursuant to section 11(b) of the Charter should be approached in its upcoming decisions in the appeals of both R v Williamson, 2014 ONCA 598 [Williamson], and R v Jordan, 2014 BCCA 241 [Jordan].

This piece will focus on the appeal of Williamson.

The guidelines for approaching section 11(b) claims were set out in R v Morin, [1992] SCR 771. Generally, a claim may merit section 11(b) scrutiny eight to ten months between committal and trial and a further six to eight months of delay following a preliminary inquiry.

After considering the length of the delay, any waivers of time periods, the reasons for the delays, and if and how the accused was prejudiced by the delay, courts need to consider whether the delay is justifiable while balancing the interests of the accused with the societal interests of hearing the trial on its merits.

The contrasting court of appeal decisions in Williamson and Jordan, however, illustrate the need for further guidance from the country’s top court.

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[filed: Charter]

Benchers Must Reconsider Lawyer’s Disbarment: The Law Society of British Columbia v Zoraik

In The Law Society of British Columbia v Zoraik, 2015 BCCA 137 [Zoraik], the British Columbia Court of Appeal (“BCCA”) held that Benchers of the Law Society of British Columbia (“LSBC”) failed to consider the Appellant’s Charter argument and whether it could refer a matter back to its Discipline Committee. As such, the BCCA referred the issue of whether Malcolm Zoraik is to be disbarred back to the Benchers. This decision is a further exemplification of the ability of administrative tribunals to deal with Charter questions post R v Conway, [2010] 1 SCR 765 [Conway].

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[filed: Administrative Law]

How Long is too Long? R v Sanghera and s. 11(b) of the Charter

Pursuant to s. 11(b) of the Charter, “[a]ny person charged with an offence has the right…(b) to be tried within a reasonable time….” This case is concerned with whether or not Mr. Savdip Sanghera’s s. 11(b) Charter right was violated, and if so, whether or not such a delay was reasonable.

On March 23, 2015, the Supreme Court of Canada (“SCC”) dismissed the appeal of R v Sanghera, 2014 BCCA 249 [Sanghera], from the British Columbia Court of Appeal (“BCCA”). The majority for the SCC affirmed MacKenzie J.A.’s decision that even “if [the trial judge] erred in not attributing to the Crown responsibility the five months’ delay arising from the direct indictment,…such error does not upset the overall result, as [there are] other factors [that] weigh more heavily on the other side of the balance” (Sanghera, para 148). Karakatsanis and Côté JJ. (dissenting), however, would have allowed the appeal for the reasons of Bennett J.A.

What is most interesting about this case is that neither the justices of the BCCA nor the justices of the SCC were able to agree with one another on whether or not Mr. Sanghera’s s. 11(b) Charter rights had been violated by the delay.

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[filed: Charter Criminal Law]

In a Battle of the Doctrines, Division of Powers Trumps Cooperative Federalism: Quebec (AG) v Canada

The federal government has the right to destroy data collected for the highly contentious long-form gun registry, the Supreme Court of Canada (“SCC”) ruled late March. In a 5-4 decision, the majority in Quebec (AG) v Canada (AG), 2015 SCC 14, found that the federal government’s right to destroy data it collected is based on authority granted in the Constitution Act, 1867 to legislate on criminal law matters. The three Quebec judges, joined by Justice Abella, formed the dissent. The minority held that the destruction of the data was unconstitutional, citing the doctrine of cooperative federalism.
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[filed: Constitutional Law Criminal Law]

Loyola v Quebec, Part II: Freedom of Religion for Religious Organizations

This is the second of a two-part comment on the Supreme Court of Canada (“SCC”) decision in Loyola High School v Quebec (Attorney General) 2015 SCC 12 [Loyola]. It will summarize the judgment of Chief Justice McLachlin and Justice Moldaver, which partially concurred with the majority judgment of Justice Abella.

As described in Part I, Loyola involves a decision by Quebec’s Minister of Education, Recreation and Sport to deny Loyola High School (“Loyola”) an exception from a provincially-mandated Ethics and Religious Culture (“ERC”) program. Loyola is a private English-language Catholic secondary school for boys, established by Jesuits in 1848. For the facts and judicial history of the case, please see Part I.

The central difference between the majority judgment and the judgment of McLachlin and Moldaver is the treatment of Loyola’s argument that, as a religious organization, the school itself was entitled to religious freedom under section 2(a) of the Charter. While the majority avoided the issue, finding it was not necessary to dispose of the appeal, McLachlin and Moldaver answered it directly. They found religion’s communal character means that protecting individuals’ religious freedom requires protecting the religious freedom of religious institutions, including religious educational bodies such as Loyola.

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[filed: Constitutional Law]