If I were now a Quebec broker… Implications of Societe en commandite Place Mullins v Services immobiliers Diane Bisson Inc.

It is not every Supreme Court of Canada (“SCC”) case that deals with situations which thousands of Canadians encounter daily, and it is not every decision that has the potential to have immediate implications. Societe en commandite Place Mullins v Services immobiliers Diane Bisson Inc, [2015] SCC 36 [Place Mullins], however, is just such a decision.

Quebec brokers – take note. To start, bear with me as I recount the stirring events that led to this important decision. Read the rest of this entry »

[filed: Contracts]

R v Kokopenace: Missed Opportunity for Action

Overrepresented in Jails, Underrepresented in Juries

Since the 1970s, Grassy Narrows First Nation reserve has become synonymous with mercury poisoning and the associated health effects. By any measurement, the residents of the reserve have had a rough deal handed to them. In 2007, Grassy Narrows was also the site of a murder, the details of which are not particularly noteworthy. A trial took place in Kenora in 2008 and Clifford Kokopenace, a resident of Grassy Narrows, was convicted of manslaughter. During the trial, it emerged that, not only were there no on-reserve Aboriginal people on the jury that convicted Mr. Kokopenance, but only 4.1% of the jurors on the jury roll for the district were of Aboriginal descent.

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[filed: Aboriginal Law Constitutional Law Criminal Law]

Strategizing in the Shadow of Precedent: Another look at Henry v British Columbia

An earlier post provided a summary of Henry v British Columbia, 2015 SCC 24 [Henry]. Unanimously overturning a decision of the British Columbia Court of Appeal (“BCCA”), the Supreme Court of Canada (“SCC”), held that the plaintiff, who was wrongfully convicted and consequently spent twenty seven years in prison for crimes he did not commit, could sue the government for a violation of his Charter rights. The legal basis for such a claim is found in s. 24(1) of the Charter, which states that “[a]nyone whose rights or freedoms…have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

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[filed: Charter Criminal Law Henry v British Columbia (2015) Remedies Torts]

Clearing the fog? St. Cloud and the Reinterpretation of Bail Procedure

The death of Bridgett Takyi, a 27-year-old mother, represents the worst nightmare of any Justice of the Peace. In Ontario, justices make critical decisions, such as whether an accused should be released from jail pending trial. While out on bail for charges including assault and uttering death threats against Ms. Takyi, Emmanuel Owusu-Ansah, Ms. Takyi’s ex-boyfriend, stabbed her 25 times and set her remains on fire. Owusu-Ansah was convicted of second-degree murder in June 2015, but questions still remain concerning the decision to release him on bail in the first place.

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[filed: Criminal Law]

R v Tatton: The Confounding Distinction between Specific and General Intent

The Supreme Court of Canada’s (“SCC”) recent decision in R v Tatton, 2015 SCC 33 [Tatton] takes place in the context of a larger and more protracted debate about the defence of intoxication. In what cases, if any, can a self-induced state of intoxication negate intent, and provide an accused with a full acquittal?

Courts have been grappling with this question since the Exchequer Court’s decision in Reniger v Fogassa, 75 ER 1 (Ex) nearly 500 years ago. In Tatton, the SCC took the opportunity to review and clarify its earlier decision in R v Daviault, [1994] 3 SCR 63 [Daviault], which outlined the approach to classifying crimes as either “general” or “specific” intent. However, this decision exposes a weak-point in the criminal law, and has more fundamental implications on the application of the defence of intoxication, generally.

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[filed: Criminal Code Criminal Law Uncategorized]

SCC Denies Charter Protection to Tax Adviser Hit with a Huge Monetary Penalty

The Supreme Court of Canada’s (“SCC”) decision in Guindon v Canada, 2015 SCC 41 [Guindon] has been eagerly awaited by lawyers in the area of taxation. It deals with a relatively new provision in the Income Tax Act, RSC 1985, c 1 (5th Supp), s. 163.2, that allows third parties, such as tax advisers or promoters of tax deduction schemes, to be penalized for helping a taxpayer make “a false statement.” Bogus charitable donation schemes, in particular, have been a growing problem for the tax authorities.

Julie Guindon is a lawyer who was also the head of a small charity in the Ottawa area. She signed charitable donation receipts totalling nearly $4 million (many of them to her friends and relatives) in a scheme that the Canada Revenue Agency concluded was false. Penalties totalling $565,000 were imposed on her personally. She appealed to the Tax Court where she successfully argued that a penalty this large was a criminal penalty. That would make it invalid, as she had not been accorded the procedural safeguards that are constitutionally required for a person charged with a criminal offence.

The SCC unanimously rejected Guindon’s appeal, affirming the earlier reversal of the Tax Court’s decision by the Federal Court of Appeal (“FCA”) in Canada v Guindon, 2013 FCA 153 [Guindon, FCA]. The SCC has provided clarity on the validity of the specific penalties found in s. 163.2. However, the decision is somewhat disappointing as the SCC did not use the opportunity to provide any new insights into the complex issue of how to distinguish between civil and criminal penalties.

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[filed: Charter Tax]

R v Barabash: Resolving the Debate Surrounding the Private Use Exception

On May 22, 2015, the Supreme Court of Canada (“SCC”) in R v Barabash, 2015 SCC 29 [Barabash], unanimously concluded that a new trial was necessary since both the trial judge and majority at the Alberta Court of Appeal (“ABCA”) erred in law in their analyses of the role of exploitation in the “private use exception” for the private recordings of sexual activities involving a young person.

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[filed: Criminal Law]

Henry v British Columbia: Defending Rights, or the State?

The Sorry Tale of Mr. Henry

Mr. Henry is an average person with an average life. Then one day, he is convicted of 10 sexual offences, declared a dangerous offender and sentenced to indefinite imprisonment. He spends the next 27 years in prison, writing dozens of appeals and requests, and, presumably, spending the rest of his time thinking about the cosmic unfairness of the universe and what he has done to deserve all this (which is nothing really).

27 years later, the British Columbia Court of Appeal, finally confirms that our protagonist is entirely innocent. It turns out that his trial was badly botched because the prosecution somehow failed to provide him with 30 inconsistent victim statements, forensic and medical evidence, and information concerning the existence of another suspect, twice arrested in the vicinity of the attacks (who knew all that would be important).

Unfortunately, this was not the plot summary of an amateur’s first play, but real events that led to the May 1, 2015 decision of the Supreme Court of Canada (“SCC”) in Henry v British Columbia (Attorney General), 2015 SCC 24 [Henry]. Read the rest of this entry »

[filed: Charter Criminal Law Henry v British Columbia (2015) Remedies]

R v Nur: The Battle of Two Approaches to Challenging a Mandatory Minimum Sentence Under s. 52 of the Constitution Act, 1982

At the heart of the debate surrounding mandatory minimum sentences in Canada lies the insular but simple fact that Parliament, rather than the judiciary, dictates the application of such sentences to ensure that all offenders convicted of a specific crime receive at least a minimum term of imprisonment, regardless of the circumstances which surround the offence and the offender.

However, on April 14, 2015, the Supreme Court of Canada (“SCC”) came one step closer to regaining its control over sentencing with the release of its split decision in R v Nur, 2015 SCC 15 [Nur], on whether or not the mandatory minimum sentences of three and five years for possession of a loaded prohibited firearm, contrary to s. 95(1) of the Criminal Code, RSC 1985, c C-46, contravened the right not to be subjected to any “cruel and unusual punishment” under s. 12 Canadian Charter of Rights and Freedoms.

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[filed: Charter Constitutional Law Criminal Law]

Hired Guns or Participating Witnesses? The Westerhof Appeal Shapes Expert Report Rules

In Westerhof v Gee Estate, 2015 ONCA 206 [Westerhof], the Court of Appeal for Ontario (“ONCA”) determined that experts who give opinions based on their participation in the events of a proceeding (a “participant expert”) may not need to comply with Rule 53.03 of the Rules of Civil Procedure, RRO 1990, Reg 194.

Rule 53.03 requires that experts provide a detailed report with a signed acknowledgement. Compliance with this Rule normally extends to all experts “engaged by or on behalf of a party.” However, this wording indicates that such a rule only applies to “litigation experts.” While there are compelling policy reasons for litigation experts to comply with Rule 53.03, these reasons do not extend to participant experts and other non-party experts. As a result, the Court of Appeal concluded that compliance with the rule is dependent on the type of expert, and not on the type of the evidence as claimed by the Divisional Court.

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[filed: Civil Procedure]