In R v Babos, 2014 SCC 16 [Babos], the issue was whether the Crown misconduct, in the form of intimidation and threats, was severe enough to warrant a stay of proceedings for the accused. A 6-1 majority of the Supreme Court of Canada (SCC) has held that prosecutorial misconduct or abuse of process must be particularly egregious to warrant a stay of proceedings when the criminal charges are serious. In this case, a prosecutor repeatedly threatening to have extra charges brought if the accused did not plead guilty to the charges as laid was not enough to meet the high threshold for abuse of process warranting a stay of proceedings, as it was not found to outweigh society’s interest in a trial. Read the rest of this entry »

Ajitpal Singh Sekhon attempted to drive a pickup truck across the border from Washington State into British Columbia on January 25, 2005. He was flagged for secondary inspection by Canadian customs officials, which led to the discovery of 50 one-kilogram bricks of cocaine – valued over $1.5 million – hidden inside a secret compartment in the pickup truck. After Mr. Sekhon was detained and advised of his rights, he produced a key fob from his pocket. The police later found out that when the key fob’s buttons were pressed in a particular sequence, it opened and closed the hidden compartment.

Mr. Sekhon claimed that he did not know there was cocaine in the vehicle – he had merely agreed to drive his friend’s truck back to British Columbia. Thus, he argued, he lacked the requisite knowledge to be found guilty of importing cocaine and possessing cocaine for the purpose of trafficking. Read the rest of this entry »

On 20 February 2014, the Federal Court of Canada (FCC) ordered (2014 FC 161) that Teksavvy Solutions Inc. (Teksavvy), an Internet Service Provider, must release the names and addresses of 2,000 customers who allegedly downloaded copyrighted films. Voltage Pictures LLC (Voltage), a film production company that produced the Oscar-winning film The Hurt Locker, sought this order on a motion to the FCC. Arguing that the customers who are alleged to have downloaded the films are prima facie liable under the Copyright Act for infringement, Voltage made this motion to the FCC with the intention of pursuing claims against these customers once the information is released.

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Since 2001 there has been considerable turmoil at the Supreme Court of Canada (“SCC”) surrounding collective bargaining rights under the Charter. During this period, two significant decisions have appeared to shift the Court towards recognizing a constitutional right to collective bargaining. As a result, a trial judge in Saskatchewan took the audacious step of assuming that the SCC would no longer abide by its earlier position that the Charter does not protect the right to strike. The Court of Appeal overruled him in R v Saskatchewan Federation of Labour, 2013 SKCA 43 [Saskatchewan Federation], taking a principled stand that the lower court ruling violated the doctrine of stare decisis.

The SCC has given leave to appeal in Saskatchewan Federation, and its decision may push the boundaries of collective bargaining rights even further. Conversely, the Court may vacillate and add to the confusion that has been created by its latest decisions in this area. Regardless of the outcome of the appeal, Saskatchewan Federation is an excellent piece of judicial writing and worth reading for its own sake. Read the rest of this entry »

Google, as part of a settlement with European competition regulators, has conceded some ground in the European search market by agreeing to display competitor results in its search results. These concessions will be the most significant that Google has made in response to an antitrust inquiry to date. The proposed settlement still requires approval from the European Commission (the “Commission”). However, it has nonetheless done little to quell the concerns voiced by Google’s competitors that sparked the inquiry.

The inquiry investigated the extent to which, if any, Google abused its ninety percent market share in Europe. As part of the settlement, Google will avoid EU fines and any finding of discrimination against competing sites, much in the same way it did a year earlier following a settlement with the United States Federal Trade Commission (the “FTC”).

In Kozel v The Personal Insurance Company, 2014 ONCA 130 [Kozel], a decision released on February 19, 2014, the Ontario Court of Appeal considered the scope of relief from forfeiture pursuant to section 98 of the Courts of Justice Act, RSO 1990, c C.43, in the context of an automobile insurance claim.

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Last November, the Supreme Court of Canada decided that Alberta’s Personal Information Protection Act, SA 2003 c P-6.5, which, inter alia, had the effect of preventing unions from filming individuals crossing a picket line, was an unjustifiable violation of the constitutional right to freedom of expression (for more, see the commentary by Avnish Nanda and Brock Jones).

The SCC’s recent decision in Bernard v Canada, 2014 SCC 13 (“Bernard“), dealt with the relationship between a union’s representational duties under the Public Service Labour Relations Act, SC 2003 c 22, and restrictions on disclosure of government-held personal information under the Privacy Act, RSC 1985 c P-21.

The SCC upheld the decision of the Public Service Labour Relations Board. Disclosure of employee home contact information by the employer to the union was necessary for the union to effectively discharge its representational duties under the Public Service Labour Relations Act. Information disclosed for this purpose is exempt from the general ban on disclosure of government-held personal information pursuant to the “consistent use” exception.

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After finding the mandatory minimum sentence for drug possession for the purpose of trafficking (contrary to s. 5(2) of the Controlled Drugs and Substances Act [CDSA]) violated s. 12 of the Charter (R v Lloyd, 2014 BCPC 0008 [Lloyd]) in January 2014, Galati J. of the Provincial Court of British Columbia has found that the law is not saved by s. 1 of the Charter (R v Lloyd, 2014 BCPC 0011). As such, the law was deemed of no force based on its unconstitutionality.

As written, s. 5(3)(a)(i)(D) of the CDSA imposes a mandatory minimum sentence of one year imprisonment for anyone convicted of drug trafficking (under s. 5(1),) or possession for the purpose of trafficking (under s. 5(2),) if the offender was previously convicted of a designated substance offence, or had served a term of imprisonment for a designated substance offence in the previous 10 years. This mandatory minimum sentence is one of many that took effect in 2012, following the enactment of Bill C-10, The Safe Streets and Communities Act.  Read the rest of this entry »

Late last year, the United States Supreme Court agreed to hear two cases challenging the constitutionality of the Patient Protection and Affordable Care Act’s (“Obamacare”) contraception mandate, with oral arguments to take place in March. At issue in Sebelius v Hobby Lobby Stores, Inc. (Hobby Lobby) and Conestoga Wood Specialties Corp. v Sebelius (Conestoga Wood), which will be consolidated at the Supreme Court, is whether provisions of Obamacare requiring companies with more than 50 employees to provide insurance that includes coverage for contraception violates those corporations’ right to religious freedom under the First Amendment and Religious Freedom Restoration Act (“RFRA”). The most interesting issue raised by this case is whether a corporation is capable of religious belief. However, as Chief Justice Dickson wrote in R v Big M Drug Mart, [1985] 1 SCR 295, this is the wrong question to be asking.

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Ever since the Supreme Court of Canada (“SCC”), in Dunsmuir v New Brunswick 2008 SCC 9, developed a “more coherent and workable” framework for judicial review of administrative decisions, lower courts have had difficulty applying the SCC’s standard of review analysis. Misapplication generally involves a lower court undertaking a correctness review where a reasonableness standard is required. To remedy this, the SCC has released a series of decisions clarifying the deference to be afforded to administrative actors. McLean v British Columbia (Securities Commission) 2013 SCC 67, released on 5 December 2013, is the most recent of these decisions. In it, the SCC clarified the presumption of deference given to tribunals when they are interpreting their home or a closely related statute. Read the rest of this entry »