Category: Constitutional Law


A Brief Look at Osgoode’s 2015 Constitutional Cases Conference

Osgoode’s Constitutional Cases Conference is the leading constitutional law conference in Canada and a much anticipated annual event. The Conference, now in its 19th year, brings together constitutional law experts and practitioners for insightful analysis of the past year’s Supreme Court of Canada (“SCC”) constitutional judgments. There were a few novelties to this year’s event that made it even more unique. First, the Conference took place on the Osgoode Hall Law School campus, a symbolic but important shift. The new venue gives an opportunity for students to engage with scholars and re-affirms Osgoode’s role as a catalyst for important legal...


AB v Canada (Attorney General): A Clash of Open Court Policy and Privacy

An Ontarian has successfully sought a constitutional exemption from sections 241(b) and 14 of the Criminal Code RSC, 1985, c C-46, allowing him to access physician assisted-suicide (“PAS”). The applicant, A.B., was an 80-year-old gentleman with advanced-stage aggressive lymphoma. Interestingly, this case raised the competing values of privacy and the open court principle. In AB v Canada (Attorney General), 2016 ONSC 1571 [AB], the applicant brought a motion for an order that would ensure the privacy of himself, his family, and his physicians. The Attorney Generals for Canada and Ontario took no position. However, the Globe and Mail, the Canadian...


Ontario Court of Appeal Holding on Spousal Incompetency Now Moot: R v Nguyen

The recent decision of the Ontario Court of Appeal in R v Nguyen, 2015 ONCA 278 [Nguyen] on the spousal incompetency rule has now been rendered largely moot as a result of changes to the Canada Evidence Act [CEA] brought in by the previous Harper government. At issue in Nguyen was whether the spousal incompetency rule could be extended to common law spouses. Following a jury trial Bao Quoc Nguyen (“Bao”) and Kien Binh Tu (“Binh”) were convicted of first-degree murder, and Bao Tri Nguyen (“Tri”) was found guilty as an accessory after the fact to murder. The victim, Quang...


Sailing in Uncharted Waters: The Duty to Consult for Administrative Tribunals

The duty to consult is a constitutional obligation grounded in the honour of the Crown and entrenched in section 35 of our Constitution. This duty arises whenever conduct may adversely affect Aboriginal rights or title. The content of this duty has continued to be fleshed out since its articulation in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 [Haida]. One question that has remained unanswered, however, is how boards and administrative tribunals are meant to engage with this duty. It is the Crown’s exclusive obligation to consult with affected Aboriginal parties, but the law has yet to...


Allen v Alberta: The Sound and Fury of Section 7 and Health Care

Canada has an enviable public health care system, providing health care coverage to all Canadian citizens regardless of personal income. What this public system invariably leads to, though, is delays in getting medical treatment. And while those who want or even need to get treatment faster can seek private health care, they may find their insurance coverage for this service barred. This was the issue in Allen v Alberta, 2015 ABCA 277 [Allen].


R v Rogers Communications: Some Guidelines for Big Brother

In R v Rogers Communications, 2016 ONSC 70 [Rogers], Justice John Sproat of the Ontario Superior Court of Justice provided some much needed guidance to police and issuing justices when handling production orders for “tower dumps.” Sought by investigators through a court order, tower dumps occur when a telecom company is compelled to provide the names and numbers of cellphone users that have used a particular cellphone tower. So why should you care if you did not commit a crime? What are the police going to do with that information? There is a good chance that if the information is...


Live from the SCC: Extending Time to Respond to Carter v Canada

On February 6, 2015, the Supreme Court of Canada (“SCC”) handed down its decision in Carter v Canada (Attorney General), [2015] 1 SCR 331 [Carter] – a historic ruling wherein the criminal prohibition on physician assisted suicide was declared unconstitutional, inconsistent with section 7 of the Charter.  The declaration of invalidity was suspended by one year, and is presently set to expire on February 6, 2016 – at which point sections 14 and 241(b) of the Criminal Code, RSC 1985, c C-46 will be void, in accordance with the following framework:


Yukon Francophone School Board v Yukon: the School Board’s Powers

There exists within the territory of the Yukon only one French-language school, École Émilie-Tremblay, which is governed by the only school board in the Yukon, the Francophone School Board (“Board”). In 2009, this lone Board sued the Yukon government for what it claimed were deficiencies in the provision of minority language education. In 2015, the Board had the opportunity to argue its case at the Supreme Court of Canada (“SCC”) in Yukon Francophone School Board, Education Area #23 v Yukon (Attorney General), 2015 SCC 25 [Yukon]. The main issue at hand, as discussed below, revolves around whether it is the...


Remedying Hypothetical Charter Breaches: Lessons from R v Appulonappa

The newest member in the illustrious “class of section seven” Charter jurisprudence is R v Appulonappa, 2015 SCC 59 [Appulonappa], a recent Supreme Court of Canada (“SCC”) ruling on the constitutionality of a federal human smuggling offence. The decision is not only noteworthy for its political significance (stemming from a refugee controversy taking place several years ago), but also because of the SCC’s use of reasonably foreseeable hypotheticals in assessing the effect of the legislation. Below, I seek to analyze and question the application of the “reasonable hypothetical” doctrine in section seven (and twelve) litigation. I also explore the remedial...


Second Class Citizenship in Canada: through the Eyes of a Second Class Citizen

“It’s official – second class citizenship goes into effect.” – British Columbia Civil Liberties Association (“BCCLA”), regarding Bill C-24 (now law). Strong words. I am always skeptical of strong words. More than half the time, they are hyperbole intended to deceive. I was skeptical of these words, too. So I went straight to the source: the Citizenship Act, RSC, 1985, c C-29 [Citizenship Act]. It turned out that, in my humble opinion, at least, the BCCLA is right to call the new regime dual class citizenship, and it is right to, together with the Canadian Association of Refugee Lawyers (“CARL”), launch...