Category: Constitutional Law

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R v. Vassell: Reasonableness and Systemic Flaws in the Legal System

In R v Vassell, 2016 SCC 26, the accused, Mr. Vassell, was charged with possession of cocaine for the purpose of trafficking. However, Mr. Vassell’s trial was delayed by over three years, and because of this, he applied for a stay of proceedings and claimed that the delay violated his s. 11(b) Charter right. Under s. 11(b) of the Charter, “any person charged with an offence has a right to be tried within a reasonable time.” At the trial level, the judge dismissed the application and convicted the accused. The majority at the Court of Appeal of Alberta agreed (see...

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Overthrowing Precedent: R v Jordan’s Impact on the Crown and the Right to a Trial Within a Reasonable Time

On July 8, 2016, the Supreme Court of Canada released R v Jordan, 2016 SCC 27 [Jordan], a decision that fundamentally changed the framework that determines whether an accused has been tried within a reasonable time under s 11(b) of the Charter. While the impact of explicitly overthrowing a well-established framework with years of precedent remains to be seen, it is clear that this decision has already begun to have a radical impact on the Crown.

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Matsqui First Nation v Canada (AG): The Dangers of Mandatory Mediation

Mediation is an invaluable tool which, when used correctly, can help parties avoid the procedural obstacles and inefficiencies of the legal system through a third party mediator. However, when used incorrectly, mediation itself can become an unnecessary obstacle. In Matsqui First Nation v Canada (AG), 2015 BCSC 1409 [Matsqui], the Department of Fisheries and Oceans (DFO) infringed the Matsqui “domestic salmon fishing” right under s. 35(1) of the Constitution Act, 1982 by failing to issue certain fishing licenses to the Matsqui. The Crown applied for exemption from mediation because the unique circumstances of the case made it a “test case”...

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Prosecuting Crime at Home Secures Respect for Human Rights

The Government of Canada is acutely aware of the cost of litigation. Those costs, along with the policy and legal implications of litigation, are now the subject matter of a new Cabinet Committee on Litigation Management, chaired by Minister Dominic LeBlanc. This committee will advise federal Justice Minister Jody Wilson-Raybould, who recently suggested in a speech to the Canadian Bar Association that the Government of Canada would be reconsidering its “litigation position” in several cases so as to ensure that its overall legal strategy comports with Canada’s Charter of Rights and Freedoms. We support this goal, with the Government’s predecessor...

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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...

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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...

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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...

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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...

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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].

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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...