Heath care undertakings by a province are potentially immune from criminal law. That is the conclusion reached by a 2-1 majority in PHS Community Services Society v. Canada (Attorney General), 2010 BCCA 15 [PHS]. The case concerned Insite, a Vancouver clinic which provides a safe place for addicts to use drugs, and the applicability of federal drug laws to its activities. The Court of Appeal for British Columbia has been heralded as courageous for standing up to the Harper government’s “get tough” approach to drug addicts who make use of Vancouver’s Insite clinic, and pundits are urging the federal government to accept the ruling. However courageous, the federal government should seek leave from the Supreme Court to appeal. Both the trial and majority appellate decisions misconstrue and misapply the doctrines of paramountcy and interjurisdictional immunity. Despite the Court’s attempt to simplify these doctrines in Canadian Western Bank v. Alberta, 2007 SCC 22, and British Columbia (Attorney General) v. Lafarge Canada Inc., 2007 SCC 23, further clarity and guidance are needed.
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On January 27, 2010, the UK Supreme Court struck down two UK Orders in Council that formed the entirety of the country’s terror financing and asset-freezing law (Her Majesty’s Treasury v. Mohammed Jabar Ahmed and others; Mohammed al-Ghabra; Hani El Sayed Sabaei Youssef ([2010] UKSC 2 & [2010] UKSC 5). The Court held the laws to be ultra vires the executive; the serious violations of human rights at the centre of such laws could only be justified when enacted by Parliament or subject to Parliamentary oversight. On February 4, 2010 ([2010] UKSC 5), the Court further went on and denied the Government’s motion to suspend its judgment and give the Government an opportunity to rework the laws. By doing so, the Court indicated a strict adherence to principles of Parliamentary sovereignty and protection of human rights even in the face of grave national security risks that could result from its decision.

It is highly appropriate that Lord Hope quotes the following statement of Lord Bingham in the opening to the decision:

[W]e are entitled to be proud that even in that extreme national emergency there was one voice—eloquent and courageous—which asserted older, nobler, more enduring values: the right of the individual against the state; the duty to govern in accordance with law; the role of the courts as guarantor of legality and individual right; the priceless gift, subject only to constraints by law established, of individual freedom (at para.6, citing The Case of Liversidge v. Anderson : The Rule of Law Amid the Clash of Arms (2009) 43 The Int’l Lawyer 33 at 38).

Lord Hope goes on to recognize the unquestionable and fundamental duty of the judiciary: “Even in the face of the threat of international terrorism, the safety of the people is not the supreme law. We must be just as careful to guard against unrestrained encroachments on personal liberty” (at para.6).

Ironically, the SCC’s decision in Khadr (2010 SCC 3) was released the same week as this decision. It may be unfair to compare and contrast the two decisions in a technical-legal sense: the UKSC decision is essentially about the legal overreaching of the executive without Parliamentary oversight. Nonetheless, the politically symbolic significance cannot be overstated. Where the SCC backed down, the UKSC stepped up. Finding a clear human rights violation by the Canadian Government, the SCC decided to remain silent on any remedial order. The UKSC, on the other hand, quashed an executive order and went on to not even allow the executive the benefit of time through a suspended declaration. In terms of similarities, like Khadr, the UK case also involved foreign affairs (arguably moreso because it involved the UK Government’s obligations, not discretionary policies, as a Member-State of the United Nations).
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YouTube Lives as California Gay Marriage Trial is Re-enacted
It’s Hollywood to the rescue. The U.S. Supreme Court may have nixed District Court Judge Vaughn Walker’s plans to make video of the trial in Perry v. Schwarzenegger, the so-called California gay marriage case, available publicly on YouTube, but an enterprising group of Los Angeles-based filmmakers have decided to provide a dramatic re-enactment in its place, Simon Fodden notes over at Slaw. “For what it’s worth, I think this is a brilliant idea and something of a raspberry directed at SCOTUS,” Fodden says. “The acting is serious, the language authentic, and the setting completely believable.” There are 12 scheduled “episodes,” one for each day of the trial, are available MarriageTrial.com and are based on actual court transcripts of the proceedings, the WSJ Law Blog reports.  ”We want all Americans to have a chance to judge for themselves, based on the evidence that was presented,” filmmaker John Ireland told the San Francisco Chronicle. The series’ cast members include an Academy Award-nominee and a veteran of the hit Fox show 24. Read the rest of this entry »

If the name Umar Farouk Abdulmutallab doesn’t ring a bell, you might know him better as the “Christmas Day bomber”. On December 25, Abdulmutallab managed to avoid the “rigorous” airline security in Amsterdam and boarded Flight 253 heading to Detroit with explosives strapped to his underwear. As Flight 253 began its descent towards Detroit, Abdulmutallab managed to light his leg on fire before being tackled to the ground and doused by fire extinguishers. After being taken to the front of the plane with burns on his legs and no trousers left, airline personnel and passengers broke into a spontaneous chorus of “Pants on the Ground”.

Upon landing and being taken into custody by Customs officials, no one could quite blame Abdulmutallab for thinking he was heading to Guantanamo Yemen. Indeed, Abdulmutallab was subjected to an entire 52 minutes of question by federal agents. But then a funny thing happened. The agents were replaced by a new team of federal agents who, acting on instructions from Washington, promptly read Abdulmutallab his Miranda rights and provided him with a lawyer. Not surprisingly, Abdulmutallab instantly clammed up and refused to divulge any more top secret information (for example, Osama’s whereabouts).

On December 26, Abdulmutallab was indicted in the United States District Court in Michigan. The move drew the ire of many, with Republicans blistering in their response. Maine’s Susan Collins complained that the Obama administration made a terrible mistake to “treat a foreign terrorist who had tried to murder hundreds of people as if he were a common criminal”. In a letter to Attorney General Eric Holder, all the Republicans on the Senate Judiciary Committee questioned why Abdulmutallab was treated as a criminal suspect rather than an enemy combatant. In response, the Democrats argued that Republicans were “politicizing” the bombing, in a manner inconsistent with former President George Bush’s choice to try shoe bomber Richard Reid as a criminal back in 2001. Back when Reid was tried in federal court, Judge William Young famously said:

You are not an enemy combatant, you are a terrorist. You are not a soldier in any army you are a terrorist. To call you a soldier give you far too much stature.

Political agendas aside, what then serves as the basis for deciding whether to view a terrorist as a criminal or an enemy combatant? Read the rest of this entry »

In accepting the Criminal Lawyers’ Association’s 2009 G. Arthur Martin Medal, Justice Marc Rosenberg observed Parliament’s increasingly punitive approach to sentencing demonstrated by, in part, “the narrowing, almost to the vanishing point, [of] the circumstances in which a conditional sentence can be imposed”. Bill C-9 came into force in December 2007 and effected this “narrowing” so described by Justice Rosenberg.

Prior to the introduction of Bill C-9, Professor David M. Paciocco noted “that it would have been foolish to have prohibited absolutely the use of conditional sentences for violent offences”: Getting Away with Murder: The Canadian Criminal Justice System (Irwin Law: Toronto, 1999) at p. 61. This is, however, exactly what the minority Conservative government did by prohibiting conditional sentences for any “serious personal injury offence” (defined in s. 752 of the Criminal Code) prosecuted by way of indictment for which the maximum terms of imprisonment is ten years or more. The Liberal Party of Canada and the NDP went along for the ride (see Hansard on November 3, 2006).

The reason why Prof. Paciocco described absolute prohibitions for conditional sentences as foolish can be found in the following passage, at p. 61 of his book:

If conditional sentences were not available for violent offences, judge who were convinced that it would be best to have the offender serve a sentence in the community could simply suspend the passing of sentence and place the offender on probation, as they have always done…It would be ironic if the stricter community sentence option, the conditional sentence, was used for non-violent offenders while the less effective suspended sentence was being used for violent offencers.

Enter Ms. Holly Ann Peters. For Ms. Peters, an aboriginal offender who plead guilty to aggravated assault, Bill C-9 removed the conditional sentence as an option for her sentencing. For Justice Nordheimer of the Superior Court of Justice, who imposed a suspended sentence plus three years probation on Ms. Peters, a period of incarceration was not necessary for the purpose of expressing denunciation or deterrence in her case. For the Ontario Court of Appeal, who heard the Crown’s appeal of Ms. Peters’ case, the ‘irony’ expressed by Prof. Paciocco was front and centre.

There is no right of appeal to the Supreme Court of Canada and sentencing appeals to the Supreme Court are, in any event, rare. It is not yet known whether Ontario will even apply for leave. That said, this case clearly demonstrates uncertainty in an area of law of public importance.
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On January 11th, 2010, the Ontario Court of Appeal released its decision in Hydro One Inc. v. Ontario (Financial Services Commission), 2010 ONCA 6, permitting the Financial Services Commission of Ontario (FSCO) to order a partial wind-up of a pension plan affected by the reorganization of a business where a “significant” number of employees have been affected. The court used a contextual approach to determine the definition of “significant”, taking into consideration the circumstances surrounding the reorganization.
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A fundamental tenet of Canadian tax law, as stated in Commissioners of Inland Revenue v. Duke of Westminster, [1936] A.C. 1 (H.L.), is that a taxpayer is entitled to make any lawful arrangement that he or she sees fit in order to reduce his or her liability to tax. The General Anti-Avoidance Rule (”GAAR”), at s. 245 of Canada’s Income Tax Act, has greatly confused this once-clear principle. While “tax evasion” is the general term for efforts to not pay taxes by illegal means, what is known as “tax avoidance” is the otherwise not illegal navigation of the tax regime to reduce tax payable. The GAAR, as its name would suggest, stands as a general damper on the latter. The rule entails that, even if one follows to the letter the (other) rules as laid out, the government may feel fit to disregard such compliance and levy the tax that it deems would otherwise have been payable had such (other) rules not been taken advantage of. Specifically, the benefit of a tax avoidance transaction may be denied if, pursuant to s. 245(4), the transaction constitutes a “misuse” or “abuse” of the tax-related provisions it utilized.

Noted tax law scholar Vern Krishna related the gist of general anti-avoidance legislation at a recent lecture competition: Read the rest of this entry »

The Supreme Court handed down its decision in Canada (Prime Minister) v. Khadr (2010 SCC 3) on Friday, which may have prompted a call to Omar Khadr from his lawyers telling him, “So close, and yet so far…”

TheCourt.ca covered Khadr’s case back in September 2009, before it was argued at the Supreme Court. (See my original post here, and Ahsan Mirza’s counterpoint here). Unsurprisingly, the Court didn’t take my advice to dismiss the appeal and confirm a duty on the government to attempt to repatriate its citizens when they are held in conditions that breach international human rights norms. Disappointingly, while the judges agreed with most of Khadr’s arguments, they stopped short of granting him a remedy.
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SCC Decision in Khadr Today
Will the SCC defy, or defer to, the Harper government? Today, the SCC delivers its judgment in Prime Minister of Canada et al. v. Omar Ahmed Khadr (discussed on TheCourt.ca here, here and here). In doing so, it will also deliver its verdict on lingering issues about the government’s “duty to protect” Canadians on foreign soil and the extraterratorial reach of the Charter in light of Canada’s international legal obligations. Last November, the Court reserved judgment after hearing arguments on appeal of a Federal Court of Appeal decision upholding an order that it request the repatriation of Guantanamo detainee Khadr from the United States. Khadr first raised questions of the Charter’s extraterritorial application to the actions of the CSIS agents who interviewed Khadr at Guantanamo, and who shared their intelligence with the U.S. government, which still intends to try him before military commission. The consequent, court-ordered disclosures about Khadr’s interrogation regime, in particular his induction into the “frequent flyer” program of sleep deprivation and constant cell-rotation, compelled the FCA’s August 14, 2009 order to repatriate. Given the Court’s proven boldness as regards the government’s disclosure obligations, together with its apparent reluctance to repatriate on remedial grounds of Khadr’s past mistreatment, it’s an open question as to how the Court will decide. At Ablawg, Linda McKay-Panos adds to the discussion on the Court’s “confusing” and “il-considered” treatment of the exception provided in R. v. Hape. Read the rest of this entry »

On the afternoon of September 12, 2005, the media were more concerned with the news that Michael D. Brown—or “Brownie,” of Hurricane Katrina “heck of a job” fame—had resigned than what was happening in the Caucus Room of the Russell Senate Office Building in Washington. Inside, John G. Roberts was listening patiently as twenty one senators attempted to explain the gravity of the responsibility with which he would be entrusted if confirmed as the 17th Chief Justice of the United States.

“Your prospective stewardship of the court,” Sen. Arlen Specter told Roberts, “could last until the year 2040 or longer.” Such longevity “would present a very unique opportunity for a new chief justice to rebuild the image of the [Supreme Court] away from what many believe it has become—a super-legislature—and to bring consensus to the court with the hallmark of the court being 5-4 decisions.” Sen. Tom Coburn, apparently so overcome by emotion that he began weeping, impressed upon Roberts that “a super-legislator body … is not what the court was intended to be.” He found solace, however, in the man before him: “I believe you indicate a more proper role for that of the judiciary.”

Today, some five years later, it is difficult to square the image of Roberts as a humble moderate, a fervent advocate of judicial restraint, or, as he then described himself, an “umpire” calling “balls and strikes,” with the reality of the Roberts Court’s actual decisions. In case after case, the chief justice, together with Justices Kennedy, Scalia, Thomas and Alito, has diminished, dismantled or disavowed precedent after precedent, leaving what was once well-settled law barely recognizable. Last week’s 5-4 decision in Citizens United v. Federal Election Commission, which overturns precedent in order to remove all restraints on what corporations may spend on election advertising, appears to be only the latest salvo in a long-planned and increasingly politicized struggle by conservatives to reimagine American law. Read the rest of this entry »