Author: Ahsan Mirza


R. v. Cunningham = old law

Last week my colleague Benjy Radcliffe commented on the Supreme Court’s decision in R. v. Cunningham (2010 SCC 10) as being one where the Court, “in considering the scope of [its] jurisdiction, bites off its nose to spite its face.” I would argue that this is too hasty and critical a view of the Court’s decision. Cunningham is a well-reasoned, prudent, and measured decision in light of systemic problems of lack of access to justice, legal underrepresentation, and faulty provincial/territorial legal aid schemes that scar the criminal justices system of Canada. First, it is important to repeat what Justice Rothstein’s...


R v Morelli: Understanding Criminal Possession of Digital Property

In R v Morelli, 2010 SCC 8, the Supreme Court of Canada (“SCC”) was faced with a number of complex and intertwined legal issues. The child pornography case turned on the validity of a search warrant obtained on a faulty and problematic ITO (Information to Obtain a Search Warrant). The majority and the dissent had dueling interpretations of Canadian and US case law on the reliance on evidence of propensity of behaviour and issues related to stale evidence in ITOs. The validity of the search warrant in turn informed the constitutional question of whether the appellant’s s. 8 right to be free...


Official (and Unofficial) Supreme Court Statistics, 1999-2009

The Supreme Court of Canada (“SCC”) recently released official statistics on its work in 2009 along with comparisons with the previous ten years: Bulletin of Proceedings: Special Edition, Statistics 1999 to 2009 (26 February 2010). The official statistics are interesting and insightful. In light of recent, flavourful posts by my friend James Yap (“Judgment of the Decade,” “the First Annual Ozzy Awards”) I decided to add to the official statistics by compiling some judge-specific statistics of my own, included in the second half of this post.


Mandatory(?) Minimums: R v Nasogaluak

Friday’s equivocal Supreme Court of Canada (“SCC”) decision in R v Nasogaluak, 2010 SCC 6 [Nasogaluak], can be viewed both as upholding mandatory minimum sentences and as “a noteworthy chink in the previously impenetrable wall” of mandatory minimums. The Court held that, despite conclusive evidence of a Charter violation emanating from police violence, the sentencing judge had no discretion to reduce the accused’s sentence below the statutorily mandated minimum. However, the Court also noted that for some “particularly egregious” forms of state misconduct, sentence reduction below a mandatory minimum may be appropriate under s. 24(1) of the Charter.


HMT v Mohammed Jabar Ahmed (UKSC): Limiting Executive Power in the Post-9/11 World

On January 27, 2010, the UK Supreme Court struck down two UK Orders in Council that formed the entirety of the country’s terror financing and asset-freezing law (Her Majesty’s Treasury v Mohammed Jabar Ahmed and others; Mohammed al-Ghabra; Hani El Sayed Sabaei Youssef, [2010] UKSC 2; [2010] UKSC 5. The Court held the laws to be ultra vires the executive; the serious violations of human rights at the centre of such laws could only be justified when enacted by Parliament or subject to Parliamentary oversight. On February 4, 2010, the Court further went on and denied the Government’s motion to suspend its...


MiningWatch Canada v Canada and Multi-jurisdictional Environmental Assessments

On January 21, 2010, the Supreme Court of Canada (“SCC”) released its judgment on MiningWatch Canada v Canada (Fisheries and Oceans), [2010] 1 SCR 6 [MiningWatch]. MiningWatch deals with the level of discretion that federal ministries have in determining the scope of a given project for the purposes of undertaking an environmental assessment. Writing for the unanimous Court, Justice Rothstein held that the federal authorities erred in minimally scoping the project in a manner that required only a fast-tracked “screening” rather than a full-scale “comprehensive review.”


Grant v Torstar Corp: Responsible communication on matters of public interest

On December 22, 2009, the Supreme Court of Canada (“SCC”) issued its judgment in Grant v Torstar Corp, [2009] 3 SCR 640 [Grant v Torstar] establishing a new “responsible communication” defence to the tort of defamation. Much has already been said about the decision in media and journalistic circles and the decision has been hailed as a win for public interest journalism and freedom of press (see ie. “Supreme Court enables ‘productive debate’ in Canada“; “News Media Given Wider Protection,” The Montreal Gazette (23 Dec 2009); and “Rewriting our libel laws“).


Recent Proliferation of Empirical Research on the SCC – A Literature Review

Since the advent of the Charter of Rights and Freedoms, a growing number of Canadian academics have delved into empirical, and especially quantitative, research on Supreme Court of Canada judicial decision-making. A flurry of articles and literature on the subject has been published in the past few months. Below is a sample of some such research. A quick foreword: the increase in empirical research has not yet resulted in an increase in academic literature criticizing the empirical findings or discussing the shortcomings and challenges of such research projects. On the flip-side, the research findings from such projects have not yet resulted...


R v Basi: (I) The Sanctity of Informer Privilege; (II) Preliminary Appeals in Criminal Trials

The Sanctity of Informer Privilege “Informer Privilege” or “Informant Privilege” – the protection of the identity of a confidential informant—is one of the most prohibitive and absolute privileges in the Canadian legal system. The Supreme Court of Canada reiterated its importance last week by unanimously overturning both lower court decisions in R v Basi, [2009] 3 SCR 389 [Basi].


Caisse Populaire Desjardins de Montmagny: Crown Does Not “Own” Unremitted GST Amounts

The only surprising thing about the recent Supreme Court of Canada (“SCC”) decision in Quebec (Revenue) v Caisse Populaire Desjardins de Montmagny, [2009] 3 SCR 286 [CP Desjardins de Montmagny] is that the Quebec Superior Court (“QCSC”) at first instance found in favour of the Crown in all three cases from which the appeals arose. The issue in CP Desjardins de Montmagny was determining the status of collected but unremitted GST and QST amounts where a business later filed for bankruptcy, and determining the priority as between the government, the trustee in bankruptcy, and secured creditors in claiming the amounts in question....