I wonder how the SCC’s decision in Slahi—denying s.7 Charter protection to a landed immigrant—can be reconciled with the recent adoption of the “forum of necessity” doctrine by the Court of Appeal for Ontario in Van Breda v. Village Resorts Limited, 2010 ONCA 84 (Ont. C.A.)?

There is a worrisome trend in the Supreme Court’s textualist approach to statutory interpretation. The phrase “Everyone” which is used in sections 2, 7, 8, 9, 12, 17 of the Charter is juxtaposed with the phrase “Every citizen of Canada” in sections 3 and 6 dealing with democratic and mobility rights. If you’re on Canadian soil, then you are subject to the laws of the Canadian state. If your rights are infringed by governmental actions, then you are entitled to the full protection under Canadian law and should be entitled to a remedy.

Where is the evidence that these two individuals were tortured at the hands of Canadian agents?

Omar Khadr was put on the ‘frequent flier’ regime prior to interrogation by Canadian agents who apparently shared the information gained with U.S. agents. This was deemed a violation of Mr. Khadr’s rights. No evidence is presented in the article that Slahi and Zeremi were subjected to similar treatment with prior knowledge of Canadian agents. A claim is not a fact. If these two persons were mistreated by American agents then their remedy will come from U.S law, not Canadian law.

It is up to Mauritania and Algeria to speak for their respective citizens. We must not allow the Charter to become a warm fuzzy blanket that tries to cover the whole earth and that tries to protect persons with increasingly tenuous connections to Canada.

The Canadian goverment obviously does not care if information obtained illegally either by themselves of by the Americans is used at Khadr’s trial. When the Canadians interviewed Khadr he was sixteen or seventeen years old and still had not had any access to a lawyer, or any aid from any adult and had been interrogated by Americans under much worse conditions.

If another submission is made to the Court on Khadr’s behalf how could it possibly consider the government’s action an adequate remedy to the violation of rights it identified?

When Harper was dealing with a case of another Canadian detained abroad he said he believed that the Canadian government should always speak out publically on behalf of Canadians mistreated in foreign countries. I think most Canadians assumed the Canadian government would do that. This case is a real eye opener on that score. Canadians should remember this should they find themselves, or their family members or friends, in legal trouble in some country that doesn’t follow normal legal procedures. Don’t count on help from the Canadian government unless they see the case is an attractive one from the political point of view. And if they don’t they just might work actively against you.

2. However, I think the most important and disappointing refusal was this one:
Canadian Bar Association v. British Columbia (A.G.), [2008] B.C.J. No. 350, 290 D.L.R. (4th) 617 (B.C.C.A.), application for leave to appeal to the Supreme Court of Canada dismissed with costs and without reasons, July 31, 2008: [2008] S.C.C.A. No. 185, File No. 32600.

**3. I realize that this was a refusal in 2008 (July 31/08), but I challenge anyone to find a more important refusal. It concerned “access to justice,” and therefore the rule of law which is an essential part of the foundation of our democracy.

4. It is ironic and sad that prominent judges such as McLaughlin C.J.C. have made speeches (before the CBA) that people should not have to mortgage their homes or otherwise cripple themselves financially to have a lawyer to go to court–particularly when asserting or protecting their constitutional rights and freedoms. I believe that Brennan, C.J.B.C. (the judge of first instance) has made speeches of the same sympathy and purport. Yet both justices, have dismissed applications seeking to prevent legal costs (fees) from getting in the way of the rule of law, and therefore democracy. Lawyers are thus the gatekeepers of access to the courts and the constitution. The rule of law should be more than only what you can pay for.
— Ken Chasse, LSUC (1966); LSBC (1978); OHLS (1964); OPD-LL.M. (2009).

I am just beginning a paper on Bill C-9 an Act to amend the Criminal Code s. 742.1 on conditional sentences. I have read the Peters case and have read many more cases that fit under s. 742.1 as serious personal injuriy offences. However, what I have found is that Peters appears to be the odd one out. Many of the other cases have concluded with a sentence of incarceration of some time. So, what I am wondering is if you had considered any other cases when discussing this topic. Also, I may be confused as to what your position is. What I am getting from your article is that in situations where there is a serious personal injury offence, judges will chose probation instead of incarceration, but had they had the opportunity to order a conditional sentence, they would have.
So, instead of being more strict and giving harsher punishments, courts are being more lenient on crimes that were seen as requiring a harsher punishment than a conditional sentence would offer.