Author: Nikita Rathwell

0

Supreme Court of Canada Expands on the Honour of the Crown in Manitoba Métis Federation Inc. v Canada (Attorney General)

Back in 1869, present-day Manitoba’s Red River Settlement was a lively Métis community that was growing and developing while, further East, the country of Canada was in its infancy. After Upper and Lower Canada (Ontario and Quebec, respectively), Nova Scotia and New Brunswick combined to create Canada in 1867, John A. Macdonald set his sights on westward expansion. England agreed to turn over Rupert’s Land to Canada, making Canada the new owner of the Red River Settlement. Macdonald would quickly find that the Métis of Red River would not be willing to give up their sovereignty and land without a fight....

1

BULLETIN: SCC Grants Partial Appeal to Metis Federation in Manitoba Metis Federation Inc. v Canada (Attorney General)

On Friday, March 8, 2013, the SCC released its decision in Manitoba Metis Federation Inc. v Canada (Attorney General), 2013 SCC 14. In this landmark case, the Manitoba Metis Federation sought a declaration that in implementing the Manitoba Act, the federal government breached their fiduciary obligation to the Metis and failed to implement the Manitoba Act in a manner consistent with the honour of the Crown. The case had to do specifically with ss. 31 and 32 of the Manitoba Act, which granted Metis children 1.4 million acres of land and recognized existed landholdings. This land was not granted effectively, prompting the majority (with...

0

Lack of First Nations Representation on Ontario Juries Symptomatic of Larger Problems: Iacobucci Report

Every fall, Aboriginal students from Northern Ontario’s remote reserves leave their families and fly to Thunder Bay in order to attend high school, the trip being necessary due to the lack of suitable schools closer to their homes. Since 2000, seven of these students have died in tragic circumstances. After the death of Reggie Bushie in 2007, an inquest was called to investigate the circumstances surrounding his death and to examine the effects of sending First Nations youth to school so far away from their home communities. For those who knew Jethro Anderson, Curran Strang, Paul Panacheese, Robyn Harper, Reggie...

0

R v Mernagh: ONCA Upholds Constitutionality of “Physician as Gatekeeper” Aspect of Medical Marihuana Laws

As Simmons and LaForme JJA point out at the beginning of this decision, R v Mernagh 2013 ONCA 67 represents the third time in just over ten years that the Ontario Court of Appeal (ONCA) has been asked to rule on the constitutionality of the government’s attempts to restrict the use of medical marihuana. In 2000, R v Parker 49 OR (3d) 481, established that a blanket criminal prohibition on the possession and cultivation of marihuana was unconstitutional, as it did not provide an exemption for people who required the use of marihuana for medical purposes. As a result of...

3

Clarifying Jurisdiction Over Metis and Non-Status Indians in Canada: The Federal Court in Daniels v The Queen

The Federal Court released its decision in Daniels v The Queen 2013 FC 6 [Daniels] on January 8, 2013. This decision was the highly anticipated end to 12 years of litigation between the federal government, individual litigants and the Congress of Aboriginal Peoples on the important question of whether Métis peoples and non-status Aboriginal peoples are considered to be “Indians” under s 91(24) of the Constitution Act, 1867. The Plaintiffs in this case were asking the Court to issue a declaration that Métis and non-status Indians are “Indians” within the meaning of the expression “Indians and lands reserved for Indians” in...

0

No Right to “Know One’s Past”: The BCCA in Pratten v British Columbia (Attorney General)

In a decision released on November 27, 2012, the British Columbia Court of Appeal (“BCCA”) in Pratten v British Columbia, 2012 BCCA 480, reversed the British Columbia Supreme Court’s (“BCSC”) decision that provisions of the provincial Adoption Act, RSBC 1996, c 5 [Adoption Act] are unconstitutional as a result of their failure to take into account the rights of people conceived using sperm from an anonymous donor (“donor offspring”). The challenge was brought by Olivia Pratten, who was conceived in 1982 using sperm from an anonymous donor. As per the rules of the College of Physicians and Surgeons of BC,...

0

Are Municipalities Subject to the Duty to Consult? The BCCA in Neskonlith Indian Band v Salmon Arm (City)

In Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511 [Haida], the Supreme Court of Canada (“SCC”) set out the framework for the duty to consult, holding that this duty arises “whenever the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.” The Court further articulated that, while the Crown may delegate “procedural aspects” of consultation, the “ultimate legal responsibility for consultation and accommodation rests with the Crown. The honour of the Crown cannot be delegated” [emphasis added]. Six years later, in Rio...

0

The SCC in D.C. and Mabior Part II: Divisive Reactions and Significant Social Implications

This is the second part of a two-part post regarding R v DC and R v Mabior. Part I looked at the incremental change in the law that these cases represent and the questions that were left unanswered by the SCC. Part I can be found here.  On October 5, 2012, the Supreme Court of Canada (“SCC”) released its highly anticipated decisions in R v DC, [2012] 2 SCR 626 [DC] and R v Mabior, [2012] 2 SCR 584 [Mabior]. For many, the SCC’s decision represents a reasonable middle ground and balances the interests of people living with HIV while still appreciating the role of informed consent in sexual...

0

The SCC in D.C. and Mabior Part I: Incremental Change and Some Troubling Loose Ends

This is the first part of a two-part post regarding R v DC and R v Mabior. Part II of this post explores the reaction to the case from the media, the interveners and the public. Part II can be found here.  On October 5, 2012, the Supreme Court of Canada (“SCC”) released its highly anticipated decisions in R v DC, [2012] 2 SCR 626 [DC] and R v Mabior, [2012] 2 SCR 584 [Mabior]. The companion cases clarify the Cuerrier test (from R v Cuerrier, [1998] 2 SCR 371 [Cuerrier]) for when non-disclosure of HIV-positive status can amount to fraud vitiating consent under s. 265(3)(c) of the Criminal Code,...

0

BULLETIN: SCC Releases Decisions in R v DC, R v Mabior

This morning, the Supreme Court of Canada released the highly anticipated decisions in the cases of R v DC and R v Mabior. The release of these decisions clarifies the “significant risk of bodily harm” standard first set out in R v Cuerrier. Thecourt.ca has followed these cases extensively: the facts of the two cases and commentary can be found here and here. The crux of the decisions is this: Mabior clarifies that the Cuerrier standard of “significant risk of bodily harm” “should be read as requiring disclosure of HIV status if there is a realistic possibility of transmission of HIV”. A “realistic possibility” of...