R v Moriarity: Reconfirming the Jurisdiction of Court Martial in Canada

In R v Moriarity, 2015 SCC 55 [Moriarity], the Supreme Court of Canada (“SCC”) looked at whether certain provisions of the National Defence Act, RSC 1985, c N-5 [NDA] are overbroad and contrary to section 7 of the Canadian Charter of Rights and Freedoms [Charter]. The practical consequences of the case have to do with the ability of military courts to adjudicate offences committed by members of the military under civilian circumstances. In a thirty-five page decision, Justice Cromwell quickly dismissed the Charter arguments of the appellants, effectively affirming the jurisdiction of military courts.

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[filed: Criminal Law Jurisdiction]

Paramountcy Problems in Alberta (Attorney General) v Moloney

As a federal state, there is a plurality of legislative bodies in Canada with the constitutional authority to make law. Part IV of the Constitution Act, 1867 sets out the manner in which law-making power is divided between the Federal government and the provinces, designating respective spheres of exclusive jurisdiction. Contrary to what the framers of the Constitution may have thought, however, the different heads of power are not “water-tight compartments,” and may on occasion butt heads with one another.

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[filed: Constitutional Law]

Live from the Supreme Court: Andelina Kristina Hecimovic v Her Majesty the Queen

The Supreme Court of Canada (“SCC”) has handed down another decision on dangerous driving in Andelina Kristina Hecimovic v Her Majesty the Queen. Hecimovic was charged with two counts of dangerous driving causing death. The British Columbia Supreme Court acquitted her. The BC Court of Appeal allowed an appeal from the acquittal and ordered a new trial. The SCC, in a surprising decision, sent the case back for a new trial.

The appellant, Ms. Hecimovic, was driving back from a late night shift at Eagle Ridge Hospital in Port Moody, where she worked as a nurse. She had a particularly hard shift that night dealing with a suicidal young patient, and testified that she was emotionally distraught. She could not wait to get home to her boyfriend and have the night be over.

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[filed: Criminal Code Criminal Law Evidence Law]

Holland v Hostopia.com: The Importance of Fresh Consideration when Implementing Conditions of Employment in More than One Document

In the recently released decision Holland v Hostopia.com Inc., 2015 ONCA 762 [Holland], the Ontario Court of Appeal reaffirms the importance of fresh consideration where the employer seeks to amend the employment agreement.

Where a basic offer of employment includes a requirement to sign a full employment agreement at a later time, that full employment agreement will not be enforceable if its terms are inconsistent with the terms of the basic offer of employment, unless there is fresh consideration.

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[filed: Contracts Employment Law]

R v Noureddine: The Impact of Imposing Static Triers

In R v Noureddine, 2015 ONCA 770 [Noureddine], the trial judge misunderstood how juries are selected by appointing static triers, rather than rotating triers per section 640(2.1) of the Criminal Code, RSC, 1985, c C-46.


The appellants, Mr. Noureddine and Mr. Sheridan, were both charged with first degree murder. Both were acquitted, but subsequently found guilty of second degree murder.

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[filed: Criminal Law]

The Challenges of Regulating Technological Innovation and the Obsolescence of the Regulatory State: City of Toronto v. Uber Canada Inc.

City of Toronto v Uber Canada Inc., 2015 ONSC 3572 [Uber] is a recent decision of the Ontario Superior Court of Justice (“ONSC”) dealing with the legal status of Uber, an interactive ride-sharing service that is disrupting the regulated taxi industry in Toronto. Justice Sean F. Dunphy ruled that Uber is neither a “taxicab broker” nor a “limousine service” within the meaning of the City of Toronto Municipal Code and thus cannot be prohibited from operating without a license. As the ongoing saga of Disruptive Technological Innovation (“DTI”) continues to unfold not only in Toronto but in the 260 other urban centres where Uber is present, the substantia et forma of Uber from a regulatory standpoint is far from clear. In this article, I suggest that Uber, rather than being viewed as an elusive regulatory subject, can be understood simultaneously as a market-enabling framework and a market regulator that not only challenges—but also, in many ways, surpasses—the public interest function performed by a municipality in its regulation of the taxi industry. While Toronto’s defeat at the ONSC does not foreclose the possibility for Toronto to amend its Municipal Code to capture some aspect of what Uber players actually do, Uber as a collective entity poses a larger challenge—namely, that the existing municipal regulatory apparatus is increasingly rendered obsolete by DTIs like Uber.

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[filed: Municipal Law]

R v Riesberry: A Job for the Highest Court in the Land

So far, in R v Riesberry, the Supreme Court of Canada (“SCC”) was uncharacteristically laconic – in an oral judgment on the day of hearing, it “dismissed the appeal with reasons to follow.” As of now, the SCC has yet to release its reasons.

Having mulled over the Ontario Court of Appeal (“ONCA”) decision that precipitated the appeal, I, at first, had only one question: “this is a job for the highest court in the land?”

All legal complexities aside, the facts of the case intuitively lend themselves well to a relatively simple logical chain:

  1. Man dopes horse before race;
  2. Doping is cheating;
  3. Ergo, man cheats;
  4. Cheating harms people and should be punished.

I maintain that my surprise at the fact that this syllogism was tested at every level of court in our country is at least partially justified. Why this protracted saga?

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[filed: Criminal Law]

TheCourt.ca Update: Sentencing for the Murder of Officer Garrett Styles

Sentence Handed Down

Recently, TheCourt.ca published an analysis of how the court might rule in the case of R v SK. On November 16, 2015, Superior Court Justice Alex Sosna rendered his sentence for the now 19-year old man who was convicted for the first-degree murder of York Regional Police Officer Garrett Styles.

Justice Sosna sentenced S.K. to 9 years of conditional supervision, which essentially means that S.K. will not have to spend any time within the confines of a correctional facility. S.K. will serve his sentence at home.

It is too early to gauge public reaction toward the sentence but we can anticipate various arguments by both those opposing and supporting Justice Sosna’s decision.

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[filed: Charter Constitutional Law Criminal Law Human Rights]

Approaching Minority Language Educational Rights Differently: Association des parents de l’école Rose-des-vents v British Columbia (Education)

The case Association des parents de l’école Rose-des-vents v British Columbia (Education), 2015 SCC 21 [Rose-des-Vents] represents an interesting example of a new generation of issues related to minority language educational rights that Canadian courts are brought to resolve on the basis of s.23 of the Charter. This provision is “designed to correct and prevent the erosion of official language minority groups so as to give effect to the equal partnership of Canada’s two official language groups in the context of education” (Rose-des-Vents, para 27). The petition judge’s approach regarding the course of the proceeding and the legal issues – both approved and confirmed by the Supreme Court of Canada (“SCC”) – brings a new light on the protection of these rights.

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[filed: Charter Official Languages]

Live from the Supreme Court of Canada: The Significance of Animal Advocates in the Court in R v DLW

On November 9, 2015, in assessing the scope of the prohibition on bestiality under s. 160 of the Criminal Code, RSC 1985, c C-46 in Her Majesty the Queen v DLW, the Supreme Court of Canada was asked, for what is believed to be the first time in Canadian history, to consider a piece of legislation which implicates the interest of animals to be free from harmful practices (Intervener’s Notice of Motion to Intervene, para 3). The intervener, Animal Justice, Canada’s only national organization dedicated to advancing the interests of animals in the law, also became one of the only groups of animal welfare advocates to have made submissions on behalf of animals in any court in the country. Animal Justice’s purpose in the court was to provide a perspective rejected by the other parties at the appeal: the perspective of the animals and that the offence in question, as one which necessary involves animals, is an offence that exists, at least in part, to protect them.

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[filed: Animal Rights]