New Test for When an Appellate Court Can Raise a New Issue: R v Mian

In R v Mian, 2014 SCC 54 [Mian, SCC], the Supreme Court of Canada (SCC) attempted to strike a balance between two competing roles for appellate courts – of neutral arbiter and of justice-doer. In the process, the SCC set a new precedent for determining when an appellate court can raise a novel legal issue.

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[filed: Charter Constitutional Law Criminal Law]

The Supreme Court Addresses the Truth in Sentencing Act and the Retrospective Application of Legislation: R v Clarke

R v Clarke, 2014 SCC 28, is part of the trilogy of cases recently released by the Supreme Court of Canada (“SCC”) addressing the issue of the Conservative government’s tough-on-crime policy expressed in the Truth in Sentencing Act, SC 2009, c 29 (the “Act”). As discussed in previous commentary from on R v Summers, 2014 SCC 26 [Summers], the Act amends the Criminal Code, RSC 1985, c C-46 by capping the amount of credit judges are able to give prisoners for time served before trial.

Although prior to the Act there was no specific formula, it was expressed in R v Wust, [2000] 1 SCR 455, that certain factors usually meant that judges would credit prisoners with two days for every pre-trial day served. In contrast, under the current legislation, section 3 of the Act limits judicial discretion in sentencing to “a maximum of one day for each day” in custody unless “the circumstances” warrant an increase to a cap of 1.5 days per day.

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[filed: Charter Criminal Law]

Prisoners Cannot Be Punished Twice: Canada (Attorney General) v Whaling

This past March, the Supreme Court issued a unanimous 8-0 decision on Canada (Attorney General) v Whaling, 2014 SCC 20. This ruling upholds the Charter right of prisoners not to be punished twice for the same offence.


In 1992, Parliament brought in a simplified process for accelerated parole review (“APR”) that would benefit non-violent first-time offenders. In 1997, the process was expanded to include early eligibility for day parole. Later, in March 2011, the Abolition of Early Parole Act (“AEPA”) came into effect. It abolished the APR, and, in provision 10(1), applied its abolition to any offenders currently serving sentences.

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[filed: Charter Constitutional Law]

Upcoming Symposium: Understanding and Taming Public and Private Corruption in the 21st Century

From ex-New Orleans Mayor Ray Nagin being found guilty of corruption in the wake of Hurricane Katrina, to a report finding that the owners of Bangladesh’s Rana Plaza were responsible for a building collapse, to Canadian Senators wrongfully claiming various travel expenses and expenditures, the problems of public and private corruption are a reality in business and politics today. To bring such problems into focus, on Thursday November 6th and Friday November 7th, the Osgoode Hall Law Journal, in collaboration with the Jack & Mae Nathanson Centre on Transnational Human Rights, Crime, and Security, will host its second bi-annual symposium, entitled “Understanding and Taming Public and Private Corruption in the 21st Century.”

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[filed: Human Rights International Law]

The Supreme Court Upholds Security Certificate Regime: Canada v Harkat

Canada has used the process of issuing a “certificate of inadmissibility,” also known as a “security certificate,” to detain and remove foreign nationals suspected of being involved with terrorist activity. That process is legislated under the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”), which has been the subject of several Charter challenges reaching the Supreme Court of Canada. In Canada (Citizenship and Immigration) v Harkat, 2014 SCC 37 (“Harkat”), the constitutional validity of the IRPA’s provisions was challenged yet again. In this case, the challenge came from Mohamed Harkat, a man suspected of being a “sleeper agent” working with terrorist organizations.

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[filed: Charter Constitutional Law]

Cabinet and the Standard of Review Analysis: Canadian National Railway Co v Canada

Since the passage of the Railway Act, 1868, the Governor in Council (“Cabinet”) has played an important administrative role in areas of the economy regulated by federal legislation. Currently, Cabinet functions as an appeal body with authority to vary or rescind decisions made by administrative tribunals established under a cluster of statutes including the Telecommunications Act, the Canada Oil and Gas Operations Act and the Canada Transportation Act (“CTA”).

Given the Supreme Court of Canada’s (“SCC”) traditional deference to Cabinet decisions (see e.g. Inuit Tapirisat, [1980] 2 SCR 735), lower courts have grappled with the issue of determining the appropriate mechanism for the review of its administrative functions. Does the standard of review analysis set out in Dunsmuir v New Brunswick, 2008 SCC 8 [Dunsmuir] apply? If so, what is the applicable standard of review?

On 23 May 2014, the SCC squarely answered these questions in Canadian National Railway Co v Canada (Attorney General), 2014 SCC 40 [CN Rail]. The unanimous decision applied the Dunsmuir framework and determined that reasonableness review applies when Cabinet interprets the regulatory legislation it administers. This comment will provide a brief summary of the analysis used by Justice Rothstein in coming to these conclusions.

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[filed: Administrative Law]

Access to Justice and the Rule of Law Principle: Trial Lawyers Association v British Columbia

In its ruling in Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59, the Supreme Court of Canada found that court hearing fees imposed by regulation in British Columbia were unconstitutional because they interfered with access to the constitutionally protected core jurisdiction of the provincial superior courts and the rule of law as a fundamental constitutional principle.

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[filed: Constitutional Law]

Safeguarding Online Anonymity: R v Spencer Revisited

Last month, senior contributing editor Jordan Casey analyzed R v Spencer, 2014 SCC 43, a case that clarifies the Supreme Court of Canada’s (SCC) position on what constitutes a reasonable expectation of privacy in the digital age. This post further explores one of the themes touched on by Casey—the nature and significance of the privacy interest associated with online anonymity.

To review, the case involves the possession and dissemination of child pornography. The SCC upheld a Saskatchewan Court of Appeal decision finding the defendant, Matthew David Spencer, guilty of possessing child pornography. The SCC also concurred in setting aside the defendant’s acquittal at trial for a separate count of “making available” child pornography. However, in coming to the same conclusion as the appeals court, the SCC followed a different line of reasoning, one that offers a more expansive understanding of the right to privacy of Internet users.

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[filed: Charter Constitutional Law Criminal Law Criminal Procedure Privacy]

Appeal Watch: “Serious” Non-Political Crimes and Refugee Protection in Febles v Canada

In late March of this year, the Supreme Court of Canada (SCC) held a hearing for Febles v Canada (Minister of Citizenship and Immigration). The case will determine how Article 1F(b) of the United Nations Convention relating to the Status of Refugees (the Convention), July 28, 1951, [1969] Can. T.S. No 6 should be interpreted and applied in Canadian refugee law.

Article 1(F)(b) and s. 98 of the Immigration and Refugee Protection Act hold that persons who have been convicted of a serious non-political crime in another country before entering Canada are excluded from refugee protection. The purpose of this exclusion is to keep people who have committed serious crimes from bringing the asylum system into disrepute.

What is at issue is what constitutes a “serious” crime for the purposes of Article 1F(b). Because of the serious consequences of denying one from having his or her refugee protection claim heard, it is important that this exclusion is not applied arbitrarily, and a fair and clear test is implemented for its application. Read the rest of this entry »

[filed: Administrative Law Citizenship and Immigration]

Can Domestic Abuse Victims Qualify as Refugees? – A Comment on Matter of A-R-C-G et al

The recently-released decision of the United States’ Board of Immigration Appeals (“the Board”) in the Matter of A-R-C-G et al., (“Matter of A-R-C-G“), 26 I&N Dec. 388 (BIA 2014) may signal the United States’ growing openness to granting asylum to women who flee from domestic abuse.  While the decision itself may be considered overdue, its reasoning takes a strong critical stance against nations that do not make reasonable efforts to protect women from violence. This reasoning stands in contrast to the more conservative approach that is usually applied by courts in both the United States and Canada.

If the Board’s reasoning in the Matter of A-R-C-G is adopted by courts in the United States and elsewhere, then the threshold for making successful refugee claims will have shifted significantly in favour of future claimants who flee from abusive relationships in nations that are unwilling or unable to offer adequate protection.

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[filed: Administrative Law Citizenship and Immigration Human Rights]