Much of what governments do in Canada is ruled by secondary legislation.  These regulations fill thousands of pages, often dealing with complex technical issues.   Parliament passes statutes with general principles, which authorize government bodies to write the more detailed regulations.  The Supreme Court of Canada’s (“SCC”) decision in Katz Group Canada Inc v Ontario (Health and Long-Term Care), 2013 SCC 64, provides a very clear message on how courts should decide whether regulations are consistent with the primary legislation.

In the hope of lowering provincial health care costs, the Ontario government enacted regulations so that generic drugs from manufacturers owned by pharmacies would not be eligible for the provincial drug plan.   The two largest retail chains, Shoppers Drug Mart and Rexall Pharma Plus (the latter operated by the Katz Group, the named plaintiff) challenged these regulations on a wide variety of grounds.  In a unanimous decision delivered by Justice Abella, the SCC decisively rejected every one of their arguments. Read the rest of this entry »

Further to my bulletin posted here, on November 12, 2013, the Court of Appeal for Ontario (ONCA) has struck down the three-year mandatory minimum sentence for possession of prohibited or restricted firearm (with ammunition either loaded or easily accessible; s. 95 of the Criminal Code) in a series of six decisions. The unanimous decisions come nine months after oral arguments were heard by a five-judge panel. The political backlash was immediate, and it seems that the issue of mandatory minimum sentences may be a factor in the next Canadian federal election. Not surprisingly, the cases reflect the constant struggle between the elected Parliament and the non-elected judiciary.

The decisions can be found as follows: R v Nur, 2013 ONCA 677; R v Smickle, 2013 ONCA 678; R v Rocheleau, 2013 ONCA 679; R v Chambers, 2013 ONCA 680; R v Charles, 2013 ONCA 681; and R v Meszaros, 2013 ONCA 682. While a Crown appeal to the Supreme Court of Canada is likely, the decisions provide some guidance for trial courts in the interim. Read the rest of this entry »

Almost four years since President Obama endorsed the so-called “Volcker Rule,” five US regulatory agencies are still debating its precise formulation. The rule, which is designed to prohibit banks from making risky, speculative bets, was passed into law as Section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) on July 5, 2010. Since its proposal by former Federal Reserve Chairman Paul Volcker, it has been the most hotly contested provision of Dodd Frank, and its implementation will be seen as an indicator of the strength and effectiveness of the legislation as a whole. Further, as the signature element of President Obama’s financial reforms, the vigor with which the Volcker Rule is formulated will inevitably come to be seen as emblematic of the administration’s relationship with Wall Street.
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In a pair of recent decisions, the Supreme Court of Canada upheld sniffer dogs searches that trial court judges had ruled unconstitutional. The use of sniffer dogs engages section 8 of the Charter of Rights and Freedoms, which protects against unreasonable search and seizure. In the first case, R v. Chehil, 2013 SCC 49, the court unanimously held that the sniffer dog search did not violate section 8. In the second case, R v. MacKenzie, 2013 SCC 50, the court was divided, with a narrow majority holding that there was no section 8 violation.

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These days, the pen (or, perhaps, the keyboard) is truly mightier than the sword. Pens shape public perception, and that power endures beyond borders and beyond lifetimes in our digital age of information.

But as the adage goes, with great power comes great responsibility. The international media frenzy surrounding the Rob Ford saga has intensified over the past week to levels never before seen by Torontonians, and the power of the pen in this sordid affair has become ever more prominent.

By now, the video of Rob Ford’s reply to allegations of sexually harassing a female staffer – which he has denied because he’s got “enough to eat at home” – has been seen around the world. Television personalities were left speechless, social media was set aflame, and U.S. talk show hosts, such as Jon Stewart on the Daily Show, concluded their Rob Ford updates last night by simply playing the clip of the Toronto mayor’s impromptu media scrum. The video itself was the punchline, and that punchline spoke volumes. Read the rest of this entry »

In a decision released last month, the Supreme Court of Canada unanimously dismissed Pierino Divito’s appeal to serve his American prison sentence in Canada. Divito, an infamous mobster linked to organized crime in Montreal has had his fair share of legal trouble. In fact, the Supreme Court decision itself cites convictions going as far back as 1962. Here, well into his eighteen year Canadian sentence for conspiring to traffic 5400 kg of cocaine, Divito also pled guilty to drug offences in the United States and was sentenced to seven and a half years in prison. Following this, Divito applied to serve his American sentence in Canada under ss. 8(1), 10(1)(a) and 10(2)(a) of the International Transfer of Offenders Act (ITOA). For a transfer to occur, the statute requires consent of the inmate, the foreign jurisdiction and the Canadian government. While the American government agreed to Divito’s transfer, the Canadian Minister of Public Safety and Emergency Preparedness did not. In both the Federal Court and the Federal Court of Appeal, Divito also challenged the Minister’s decision as unreasonable in administrative law. However the only issue litigated at the Supreme Court was the constitutionality of the impugned provisions of the ITOA. It is interesting to note that the Court decided this case despite Divito finishing his American sentence. While the Court unanimously dismissed this appeal, it was divided on whether Divito’s s. 6(1) Charter rights to mobility are engaged. Read the rest of this entry »

In a unanimous decision, the Supreme Court of Canada in Alberta v United Food and Commercial Workers, Local 401 2013 SCC 62 declares Alberta’s Personal Information Protection Act (PIPA) to be unconstitutional, as it breaches a union’s freedom of expression, protected under s. 2(b) of the Charter of Rights and Freedom, and cannot be justified under s. 1. Despite finding PIPA to be unconstitutional solely in the labour relations context, the court declares the entire statute invalid. However, a 12 month reprieve is granted, allowing the Alberta legislature time to enact legislation that is constitutionally compliant.

The case centres around the extent of a union’s right to film individuals crossing a picket line, Read the rest of this entry »

Yesterday, Toronto city council voted in favour—37 to 5—on a largely symbolic motion to request Mayor Rob Ford both to apologize to the people of Toronto for misleading them about the now infamous “crack video” and to take a leave of absence to sort out the personal problems that appear to plague him. Council, though, does not have the power to force Ford to accede to their urges. A symbolic demonstration of concern over Ford’s ability to perform is no doubt important, but it lacks the political teeth necessary to force change upon an unwilling participant.

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In a news conference at 2:30pm today, Ontario Premier Kathleen Wynne said that she would consult with the other party leaders on how to assist Toronto City Council with the growing Ford crisis. She laid out a path for potential provincial intervention and signaled to council that the province would act if requested: “If council were to clearly indicate that they lack the ability to function as a result of this matter, the province would respond to a request from council to be provided new tools depending on what that request might be.”

Council has no legal authority to remove Ford. The only potential avenues for removing Ford would be his incarceration, council not holding a meeting for two months, Ford himself missing three months of council meetings, or a change in provincial law. Premier Wynne would be in a position to affect the latter avenue if her potential proposal received enough votes at the Ontario legislature.

As yesterday’s City Council proceedings were crawling towards a close, Justice Ian Nordheimer of the Ontario Superior Court ordered that certain previously redacted sections of the now infamous Project Brazen 2 ITO be unsealed. (Note: the entire ITO, which is a document filed to obtain a search warrant, with yesterday’s unsealed information, can be viewed here and here.)

Most of the new revelations–which detail the Mayor’s alleged marijuana, cocaine and OxyContin use, his alleged association with escorts, his alleged racist and sexist slurs and his now-confirmed propensity to drink and drive–were brought to light by statements given to police by Ford’s ex-staffers in the context of a criminal investigation.  Read the rest of this entry »