1) On the motion, the res judicata claim fails for want of mutuality. This makes quite a bit of sense when a class litigant is attempting to claim identity of interest between the representative member(s) of that class and some essentially unrelated third party on the basis of distinct issues framed in a distinct way. Abuse of process fails not so much for inconsistent results, which occupies very little of the verbiage, but because abuse of process (as extended from its sibling, res judicata) is not strongly operative when testing the constitutionality of a statute.

2) Between when this matter was litigated at the BCCA and when that court’s judgment was handed down, the SCC substantively rebooted all s.15 jurisprudence in R. v. Kapp by taking the cathedral-like formalism of the Law factors and shoving them back into the framework from Andrews. Rowles’ decision was very obviously written before Kapp came out: she says “yeah, I know! Kapp!” at paragraph 13 and then proceeds to write something like 140 paragraphs of Law-derived formalism of just the type Kapp was designed to get rid of.

As the leading case and one in which our chief justice again engaged in her distressing recent tendency to blow up the law without telling anyone how to put it back together again (cf. Grant -> Suberu, in which the rather troublesome issue of whether or not Mr. Suberu needed counsel and how one would get it to him in a parking lot is brushed aside as ka-zam, it’s not a detention), Kapp probably deserves a mention here. Whatever comes out of this case will be interesting because no one really knows how s.15 works any more: Kapp’s “down with formalism!” thrust is left rather incoherent as Bev decides the case by saying that s.15(2) saves the program so no 15(1) analysis is needed. But of course this also means that discussing the appeal decision is somewhat of a non-starter.

3) As a consequence of Kapp’s slightly flimsy 15(2) innovation, a bunch of academic commentators have already advanced what your major criticism is in a slightly different context: now that 15(2) precludes even thinking about 15(1) and pretty much anything can be an ameliorative program, the state will call many things ameliorative programs. Or big, friendly programs that are so big and so friendly that no one could ever be made to feel bad by their operation.

4) Obviously the case you really want to jam with is Gosselin v. Quebec, which while pre-Kapp is basically the same thing as what’s litigated here, albeit on the opposite end of the age spectrum.

I approve of your hearty argument from first principles, but it seems a bit light on the law side.

I thought you might like to know that Philip Slayton has dared to go where no other author has, and is writing a book called Mighty Judgment: How the Supreme Court Governs Canada. Penguin will publish it in April 2011.

Best wishes,

Diane Turbide
Publishing director
Penguin Group Canada

Ask Eugene Meehan, at Lang Michener. We just presume he knows everything. Not to mention his weekly SCC reports are good writing (usually).

This is an excellent post, which raises a number of ethical issues for lawyers in government. I have noted your observations and discussed those issues over at Legal Ethics Forum:http://www.legalethicsforum.com/blog/2010/03/a-lawyer-provides-bad-advice-and-it-works.html

Alice Woolley

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.