The Retirement of Justice Louis LeBel and the Secretive Process that Led to the Appointment of Suzanne Côté

The government has slammed the door on parliamentary and public involvement regarding the replacement of retiring Justice Louis LeBel. On November 30, 2014, Justice LeBel turned 75, the mandatory retirement age for Supreme Court judges. Most justices often depart some months before their birthdays, but LeBel decided to take his tenure right to the end. He gave his six months’ notice on May 23, 2014, and Chief Justice Beverly McLachlin’s office announced the retirement in a news release that day.

Read the rest of this entry »

[filed: Access to Information Charter Constitutional Law]

R v WH: Incorrect Assessment of a Jury’s Verdict Regarding the Credibility of a Witness

In 2013, the Supreme Court on Canada (“SCC”) in R v WH, [2013] 2 SCR 180 [WH, SCC], ruled that the Newfoundland and Labrador Court of Appeal (“NLCA”) applied an incorrect test for reviewing a jury’s decision and, in carrying out its review of the jury’s verdict, failed to give sufficient deference to the jury’s assessment of witness credibility (WH, SCC, para 35). As such, Cromwell J allowed the appeal and reinstated the conviction entered at trial (para 49).

In upholding the decision of the trial judge (Dunn J), the SCC made important assertions about the test for assessing the reasonableness of a jury verdict as well as the need to exercise great deference to the fact-finding role of the jury.

Read the rest of this entry »

[filed: Criminal Law]

Employment Law, Jurisdictional Immunity, and Access to Justice: Amaratunga v Northwest Atlantic Fisheries Organization

In Amaratunga v Northwest Atlantic Fisheries Organization, 2013 SCC 66, Justice LeBel, writing for a unanimous court, determined that an employee’s claim for wrongful dismissal against the Northwest Atlantic Fisheries Organization (NAFO) could not succeed due to the jurisdictional immunity that the international organization was entitled to as a result of an immunity order it had entered into with Canada.

Read the rest of this entry »

[filed: International Law Labour and Employment]

Forest Ethics Advocacy Assn v Canada: Barred from Charter Relief

This comment is the second part of a two-part series analyzing the Federal Court of Appeal (“FCA”) decision in Forest Ethics Advocacy Assn v Canada (National Energy Board), 2014 FCA 245 [Forest Ethics]. As outlined in part one, Forest Ethics is a judicial review of interlocutory decisions related to a proceeding on the approval of the Line 9B and Line 9 Capacity Expansion Project. The basis for the decisions is the rejection of Ms. Sinclair, an environmentalist and resident of North Bay, Ontario, as a participant in the National Energy Board (“NEB”) hearings on the Line 9 project.

Forest Ethics and Ms. Sinclair challenged the interlocutory decisions on two bases: administrative law unreasonableness and the constitutional guarantee of freedom of expression in section 2(b) of the Canadian Charter of Rights and Freedoms (“Charter”). Part one (found here) detailed the administrative law elements of the decision. Part two will discuss the FCA’s findings on the applicants’ Charter argument.

Noting that the Charter argument had not been raised before the NEB, Justice Stratas framed the issue in negative terms: “whether the applicants are barred from seeking Charter relief on the application of judicial review…” (para 26). He found that they were. The discussion begins with the court’s rejection of public interest standing for Forest Ethics.

Read the rest of this entry »

[filed: Administrative Law Charter Civil Procedure]

Aboriginal Underrepresentation in Jury Roll Construction: Her Majesty the Queen v Kokopenace

The Supreme Court of Canada’s (“SCC”) upcoming decision in Her Majesty the Queen v Kokopenace (“Kokopenace”) will clarify what steps provinces need to take in order to ensure that Aboriginal persons facing criminal charges are afforded the chance to have their cases tried by a representative jury.

Read the rest of this entry »

[filed: Aboriginal Law Criminal Law]

Wakeling v United States of America: Supreme Court Upholds Wiretap Disclosure Provision

In Wakeling v United States of America, 2014 SCC 72, the Supreme Court of Canada (“SCC”) considered the constitutionality of the legislative scheme surrounding the disclosure of information collected through wiretaps to foreign governments. In a 3-1-3 split decision, the Court dismissed this challenge to the Criminal Code, RSC 1985, c C-46. While grappling with a difficult issue, the various judgements highlighted concerns regarding the need to respect Parliament’s role in crafting legislation and the use of information once in the hands of foreign governments.

Read the rest of this entry »

[filed: Charter Criminal Law]

R v Wilis: “A Close Call” and Appellate Review of Unreasonable Jury Verdicts

Six days after hearing the appeal of R v Wilis, 2014 ONCA 178 [Wilis, ONCA], Justice Rothstein delivered the one paragraph decision of the Supreme Court of Canada in R v Wilis, 2014 SCC 73 [Wilis, SCC]. Reproduced in full, it reads:

The majority of the Court is of the view that the appeal should be dismissed for the reasons of Doherty J.A. in the Court of Appeal. Justices Cromwell and Karakatsanis, dissenting, would have allowed the appeal for the reasons of Pepall J.A.

As the Supreme Court’s decision leaves no room for analysis, this post will rehearse and comment on the reasons of both the majority and dissent at the Court of Appeal. On reflection, the Court of Appeal’s decision provides both a neat summary of the jurisprudence around appellate court review of the reasonableness of a jury’s verdict, while also demonstrating the complexity of the review task itself.

Read the rest of this entry »

[filed: Criminal Law Evidence Law]

R v Chauhan: Sexual Assault, Consent, Intoxication and Honest but Mistaken Belief (Part II)

This commentary is the second part of a two-part series detailing and critiquing the decision of Thorburn J in R v Chauhan. The first part addressed the relevant facts, rules and analysis as it related to the first complainant in the case, A.C. The second part will address the second complainant, P.W.

Unlike Thorburn J’s conclusion of the incident relating to A.C., I believe that Thorburn J made numerous errors in law with respect to her analysis of P.W.’s incident which would warrant an appeal to the Ontario Court of Appeal.

Read the rest of this entry »

[filed: Criminal Law]

R v Chauhan: Sexual Assault, Consent, Intoxication and Honest but Mistaken Belief (Part I)

This commentary is the first part of a two-part series detailing and critiquing the decision of Thorburn J in R v Chauhan. The first part addresses the relevant facts, rules and analysis as it relates to the first complainant in the case, A.C. The second part will address the second complainant, P.W.

On September 25, 2014, Thorburn J ruled that Amitabh Chauhan was not guilty of drugging or sexually assaulting A.C., and that neither Chauhan nor Suganthan Kayilasanathan were guilty of (a) drugging for the purpose of overpowering and sexually assaulting P.W., or sexually assaulting P.W.; or (b) of being a party to a sexual assault by another.

While I agree with Thorburn J that there was reasonable doubt that Chauhan sexually assaulted A.C. or that Chauhan met with A.C. in September or October 2003, I argue that Thorburn J has erred in law with respect to the sexual assault of P.W. by Chauhan and Kayilasanathan. As such, it is quite likely that the Crown will appeal Thorburn J’s ruling.

Read the rest of this entry »

[filed: Criminal Law]

Marriage and Agency: Swift v Tomecek Roney and a Statement Against Assumptions

After a custom built home was found to have significant structural defects, the homeowners (“the Swifts”) sued the designer of the home (“the Architects”). This case provides clear guidance on the law of agency in the context of matrimonial relationships. As such, Swift v Tomecek Roney Little & Associates Ltd., 2014 ABCA 49, provides invaluable insight for parties who contract with couples.

Read the rest of this entry »

[filed: Contracts]