At the Court  is a biweekly feature profiling appeals that are scheduled to be heard at the Supreme Court of Canada.

R v DC and R v Mabior: Revising Cuerrier?

The Supreme Court will be revisiting the highly contentious Cuerrier decision on February 8 when it hears R v DC and R v Mabior together. Given the tremendous progress in the medical field in the treatment of HIV since 1998, the Court must address the meaning of “significant risk of harm” as the legal test in R v Cuerrier, [1998] 2 SCR 371.

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A Long-Awaited Departure

Twenty years after arriving in Canada, and seventeen years after his initial deportation order, Leon Mugesera is back in Rwanda to face a slew of charges stemming from comments he made that allegedly sparked the beginning of the Rwandan genocide in 1994.  Mugesera sought refuge in Canada in 1992 after being charged with inciting hatred in Rwanda for a speech he made suggesting that the Hutu majority exterminate the Tutsi minority in the country.

Mugesera’s exhaustive legal battle illustrates the expansive nature of the appellate system in Canada–he managed to avoid deportation for nearly two decades despite a Minister of Citizenship and Immigration ruling that he be deported in 1995. During this time, the initial ruling was overturned by the Federal Court of Appeal and subsequently appealed to the Supreme Court of Canada.

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In many ways, to ask a question is to answer it. That is to say, by framing a problem in one way instead of another, an adjudicator sets out on a line of inquiry that from the outset cannot be ideologically neutral, conditions the scope of possible answers, and defines the realm of possible results. Often in judgments, crucial but unstated analytical premises are taken for granted or pushed below the surface. On March 22, 2012, the Supreme Court of Canada (SCC) will hear an appeal from the British Columbia Court of Appeal in British Columbia (Minister of Education) v. Moore, 2010 BCCA 478, a case in which the majority and dissent diverged precisely because of how problems were framed, groups defined, and conclusions drawn.

In this case, Moore appeals a decision quashing the findings of the Human Rights Tribunal that the Ministry discriminated against him by failing to accommodate his learning disabilities in the provision of educational services, contrary to s. 8 of the B.C. Human Rights Code. The appellant suffered from severe dyslexia, requiring a specialized one-on-one remediation program that had been closed by the Ministry for financial reasons. As a result, Moore’s only remaining alternative was to enrol in a private school specializing in learning disabilities.
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Mrs. Penner was on trial for the weighty offense of not properly displaying two valid license plates. Mr. Penner, her husband and the appellant in a juicy case before the SCC this month, sat in the very back of the courthouse, wearing sunglasses and chewing gum. Cst. Koscinski sat directly behind Mr. Penner, awaiting an unrelated matter.

Cst. Parker was testifying against Mrs. Penner when the court became aware of what the prosecutor termed a “chirping” noise from the back of the courtroom, a sort of “running commentary” on the proceedings:

“That’s your f***ing opinion”!! (para 9) Mr. Penner audibly added to Cst. Parker’s testimony. Read the rest of this entry »

Between 2000 and 2008, under Chief Justice McLachlin’s oversight, the Supreme Court of Canada (SCC) was unanimous in its disposition of division of powers issues in 25 rulings or reference opinions. Then, after the 2009 division in Fastfrate, 2009 SCC 53, the SCC divided sharply in all six federalism rulings released in 2010. In 2011, it seemed the SCC would likely continue this trend of division on federalism issues; this was particularly expected in Canada (A.G.) v. PHS Community Services Society, 2011 SCC 44 (hereafter Insite) in regards to the interjurisdictional immunity (IJI) doctrine, as it seemed likely the apparently ‘decentralist’ bloc of Deschamps and Lebel JJ. would side with the application of provincial IJI and be opposed by the apparently ‘centralist’ bloc of McLachlin C.J.C., Binnie J. and Fish J. However, the SCC was not only unanimous in Insite, but also unanimous in the recently released Reference re Securities Act, 2011 SCC 66 decision regarding the federal government’s s. 91(2) general power to regulate trade and commerce.

It appears a ‘return to unanimity’ may be occurring in the Court under Chief Justice McLachlin’s oversight of division of powers jurisprudence in 2011, especially since four of the six federalism rulings divided upon in 2010 split regarding the role of the IJI doctrine. While these rulings split on how to apply IJI after Canadian Western Bank v. Alberta, 2007 SCC 22 [Canadian Western Bank] the SCC ruling in Insite unanimously reaffirmed the previous decision to apply IJI with restraint by restricting it to existing precedent that has only protected federal powers. Also, in stating that “before applying the doctrine of interjurisdictional immunity in a new area, courts should ask whether the constitutional issue can be resolved on some other basis,” [at para. 65] the Insite ruling confirmed the doctrinal ordering conclusion of Canadian Western Bank that an analysis of paramountcy should precede application of IJI.

However, this development in 2011 comes after much controversy over the unreciprocal test for IJI articulated by McLachlin C.J.C. in Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39 [COPA] in 2010, and may be a significant factor as to why the court has achieved unanimity in its two most recent, major cases relating to federalism issues.

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Appeal Watch is a new feature that profiles cases that have been recently granted or denied leave to appeal at the Supreme Court of Canada.

SCC Refuses to Revisit Murder Mens Rea Standard

In the years following the adoption of the Canadian Charter of Rights and Freedoms, the courts in Canada used their new-found power under section 7–the right to life, liberty and security–to scrutinize objective standards of mens rea. This resulted in a push for more subjective standards, under the premise that objective standards threatened to punish the morally innocent, as they did not require the accused to possess a positive state of mind such as intention or foresight.  This scrutiny was particularly intense in the context of high-stigma crimes such as murder.

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Gay Marriage Blame Game

In a very quick turn of events, the same sex marriage debate closed just about as quickly as it was reopened last week. The Department of Justice (DOJ) filed a legal argument stating that a lesbian couple who married in Canada in 2004 could not get the divorce they were seeking because they were never technically married. The DOJ argued that because the marriage was not legal in UK and Florida, where the couple is from, the marriage is not valid in Canada.

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The patentability of business methods has been a major source of controversy in Canadian patent law. While the Federal Court of Appeal (FCA) had the opportunity to clarify the patentability of business methods in Canada (Attorney General) v. Amazon.com, Inc, 2011 FCA 328, it left many questions unanswered, only affirming that business methods were not automatically excluded from patentability. After directing the Commissioner of Patents to re-examine the patent, the Canadian Intellectual Property Office (CIPO) has finally granted the business method patent to Amazon. This decision is interesting, not only because it raises a significant question of law, but also because it will stand as precedential authority for the viability of business method patents in the future.

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If you’ve read a newspaper in the past two months, you’ll know that Canada’s right-to-die debate has come back to life. Leading the revival is B.C. resident Gloria Taylor, a 63-year-old grandmother—and reported motorcycle enthusiast—who was diagnosed with ALS (aka Lou Gehrig’s disease) in 2009. As is often the case for people suffering from this currently incurable neurodegenerative disease, Gloria’s condition deteriorated rapidly. In June of 2011, she decided to add herself as a plaintiff in the BCCLA’s constitutional challenge of Canada’s criminal prohibition on assisted suicide, which had been filed with the B.C. Supreme Court (BCSC) two months earlier.

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Only two weeks into the New Year, 2012 is already shaping up to be a watershed year for corporate citizenship in Canada. This week, the Ontario Superior Court of Justice will hear the case of the biggest corporate flameout in Canadian history, starring Nortel Networks Corp [Nortel]. Pre-trial motions started last week in the criminal trial against three former Nortel executives: Frank Dunn, the former chief executive officer; Douglas Beatty, the former chief financial officer; and Michael Gollogly, the former controller. The charges include fraud affecting a public market, falsifying books and documents and issuing a materially wrong prospectus. The RCMP alleges that their crimes cost shareholders billions of dollars and contributed to the downfall of other Canadian corporations. Media spectacle aside, this case may be a pivotal moment in how the Canadian legal system tackles commercial crimes. Much to the chagrin of former investors and the public at large, these executives may be responsible for the demise of Nortel, but they may not be held accountable for it in the eyes of the law.

Nortel was once an industry leader in optical networking technology. Now, it may be at the centre of one of the biggest financial scandals in Canada – possibly in the world. Frank Dunn took the reigns of Nortel in 2001 following a period in which its stock price plunged and profits dwindled. Essentially, the RCMP charge him with ‘cooking the books,’ so as to make the situation seem less dire and ultimately to assuage the fears of investors. Specifically, they allege that in 2003 and 2006 Nortel egregiously misstated its early earnings. Not only did it force Nortel to ultimately seek creditor protection, but it also cost Canadians billions of dollars.

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