Who’s Social Contract? Voting Rights for Non-Residents at Issue in Frank v Canada

With the upcoming federal election scheduled for October 19, 2015, the case of Frank v Canada, 2015 ONCA 356 is particularly timely. Unfortunately, the case will not be resolved in time to allow the respondents in the case and other non-resident Canadians who have lived outside of Canada for more than five years the right to vote in this election.

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[filed: Charter]

Separation of Church and State: Mouvement laïque québécois v Saguenay (City)

The separation of church and State has long plagued Canada. The Supreme Court of Canada (“SCC”) recently revisited the scope of the duty of religious neutrality in Mouvement laïque québécois v Saguenay (City), 2015 SCC 16. The SCC, in allowing the appeal, prevented the Mayor of Saguenay from reciting a prayer in council meetings. While the SCC’s decision on the substance of the case is laudable, the majority unnecessarily complicated the standard of review in administrative law.

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[filed: Administrative Law Freedom of Religion]

Live from the Supreme Court of Canada: Canada’s Forgotten People Have Hope in Harry Daniels v The Queen

The Metis and non-status Indians of Canada have fallen through the cracks of this country. Yesterday, the Supreme Court of Canada livestreamed their hearing of Harry Daniels v The Queen [Daniels], a case that may bring some relief to Canada’s “forgotten people” (in the words of Ian Cowie, one of the appellants’ witnesses).

Daniels has only one question at its core: Does the federal government have jurisdiction over Metis and non-status Indians under section 91(24) – the section that describes the federal head of power – of the Constitution Act, 1867?

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[filed: Aboriginal Law]

The Satisfaction of a Level Playing Field: Carey v Laiken

In March of 2014, the Supreme Court of Canada (“SCC”) granted leave to hear the appeal of Sabourin & Sun Group v Laiken, 2013 ONCA 530 [Sabourin] (more about this case here). A year later, the court released its decision in Carey v Laiken, 2015 SCC 17 [Carey].

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[filed: Civil Procedure]

The Conflicting Logics of Construction Lien Law in Ontario: Should the Divisional Court in Smiley Have Turned to the SCC’s Structal Decision for Guidance?

Not even a week after the Supreme Court of Canada (“SCC”) released its precedent changing decision in Stuart Olson Dominion Construction Ltd. v Structal Heavy Steel, 2015 SCC 43 [Structal] pertaining to the proper interpretation of provincial construction lien statutes, the Ontario Divisional Court (“ODC”) released its latest construction lien decision in K.H. Custom Homes Ltd. v Smiley [Smiley], 2015 ONSC 6037 on the Ontario Construction Lien Act, RSO 1990, c. C.30 [CLA]. While the issues in each decision appear quite different, upon closer analysis, the SCC’s purported in legacy in Structal might have broader application to reasoning through the issues in Smiley.

In Structal, the Supreme Court interpreted the lien and trust provisions of the Manitoba Builders’ Lien Act, CCSM c. B91 [BLA] and provided guidance on the interaction of these provisions. The context was a subcontractor bringing concomitant lien and breach of trust claims against a project owner and general contractor respectively. The issue before the SCC was whether a contractor’s statutory obligation to hold a sub-contractor’s monies in trust was properly discharged by posting a lien bond guaranteeing payment of the entire amount to the sub-contractor. The SCC ultimately found the trust and lien provisions under the BLA to be separate and distinct remedies, simultaneously available to claimants. As a result, it held that the funds claimed to be owing were subject to a trust despite the contractor having posted a lien bond for the entire amount. Read the rest of this entry »

[filed: Commercial Law]

On Russell Brown’s Appointment to the Supreme Court of Canada

Today marks Justice Russell Brown’s official welcoming ceremony (you can watch the ceremony online here), and yet, I highly doubt Justice Brown feels welcome. His appointment has caused a flurry—no, a torrent—of public disapproval, online frustration on the politicization of the judiciary, and think-pieces on the demise of the Supreme Court of Canada (“SCC”). Some have called for a constitutional challenge to judicial appointments (if only Rocco Galati had his own bat-signal), while others have used the momentum from all the furor to explore more theoretical implications.

And yet, none of the criticisms are founded on much. Let’s look through a few:

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[filed: SCC Appointments]

BC Court of Appeal Declines to Expand Scope of Confessions Rule: R v Paterson

R v Paterson, 2015 BCCA 205 raised an evidentiary issue concerning the confessions rule that has not previously been contemplated at the appellate level: whether the voluntariness of statements made by the accused need to be proved beyond a reasonable doubt before they can be relied upon during a voir dire on a Charter issue.

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[filed: Criminal Law]

R v Crevier: Police Informants and the Balancing Act of Challenging Warrants

Police representatives often speak about the difficulties of soliciting information from the public about crimes that have taken place. Fear and a “don’t snitch” culture are common explanations for why this problem exists. In 2009, Kenneth Mark was gunned down after testifying as a witness in an attempted murder trial. His tragic story is a palpable reminder of what can happen to those who assist police in their effort to control crime. Although Mr. Mark was not a confidential informant, it is understandable why someone in his position might choose to remain anonymous.

In light of the risks involved with helping police, confidential informants are invaluable resources in police investigations, providing crucial information that may otherwise have been extremely difficult or impossible for police to obtain. Their anonymity is necessary to ensure both their safety and the integrity of their relationship with the police. In some cases, the informant may be a close acquaintance or family member of the accused.

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[filed: Charter Constitutional Law Criminal Code Criminal Law Criminal Procedure Evidence Law]

Shifting from Impartial Decision-Maker to Adversarial Opponent: Tribunal Standing on Judicial Review in Ontario Energy Board v Ontario Power Generation

In Ontario (Energy Board) v Ontario Power Generation, 2015 SCC 44 [Ontario Energy Board], the Supreme Court of Canada (“SCC”) ruled that the Ontario Energy Board (“OEB”)—a provincial statutory regulator of electricity and natural gas—properly denied Ontario Power Generation (“OPG”) its proposed rate hike on the basis that the increase was not “just and reasonable.” This result was heralded by some as a “victory for consumers,” and according to Glenn Zacher, counsel for the OEB, “reinforces the role of the Board in future appeals against its decisions.”

Although this decision is particularly noteworthy for those involved in the energy sector, it also has wider implications for administrative tribunals across the country. This article will unpack the SCC’s assessment of whether the OEB acted properly in pursuing the appeal, argue in favour of the reasonableness of its decision, and speculate as to what litigators and administrative decision-makers should expect going forward.

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[filed: Administrative Law]

A National Precedent for Securities Regulation in Theratechnologies: An Uncommon Phenomenon In Canada

It’s not often that nation-wide securities judgments are issued in Canada. Securities regulation in Canada is polycentric in nature, such that each province is governed by its own legislation and securities commission. The Supreme Court of Canada (“SCC”) decision of Theratechnologies Inc. v 121851 Canada Inc., 2015 SCC 18, [Thera] is interesting because – although the judgment related to the province of Quebec – it has implications across the board, as most provinces have similar provisions within their respective securities legislations.

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[filed: Class proceedings Corporate law Food and Drugs]