Kanthasamy v Canada (Citizenship and Immigration): Is Reasonableness the Correct Standard?

The Supreme Court has recently given leave to appeal the decision in Kanthasamy v the Minister of Citizenship and Immigration, 2014 FCA 113. In that case Mr. Kanthasamy had appealed the Federal Court’s dismissal of his application for judicial review on the Minister’s denial of his application for humanitarian and compassionate relief as provided for under subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27.

The Federal Court of Appeal heard the Kanthasamy appeal together with Lemus et al v Canada (Minister of Citizenship and Immigration), 2014 FCA 114. At issue in both cases was the interpretation of subsection 25(1) of the Act given the recent amendment created by the Balanced Refugee Reform Act, SC 2010, c 8, s 4. Writing for the Court, Stratas JA dismissed Kanthasamy’s appeal, finding that the Federal Court did not err in choice of standard of review, and that the standard of review was substantially correct.

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[filed: Administrative Law Citizenship and Immigration]

R v Buzizi: Part II – Test for Air of Reality and Role of the Judge in Applying the Test

This is the second part of a two-part series discussing the Supreme Court of Canada’s decision in R v Buzizi. Part II will address the application of the test for air of reality and the role of the trial judge in applying the test for air of reality. Part I addressed the analysis of both the majority and dissenting opinions with respect to the defence of provocation.

This decision is of particular interest since the majority and dissenting judges disagree on every aspect of the case, most notably the analysis on the defence of provocation, the application of the test for air of reality and the proper role of the trial judge in applying the test for air of reality.

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[filed: Criminal Law]

R v Buzizi: Part I – The Defence of Provocation

This is the first part of a two-part series discussing the Supreme Court of Canada’s decision in R v Buzizi. Part I will address the analysis of both the majority and dissenting opinions with respect to the defence of provocation. Part II will address the application of the test for air of reality and the role of the trial judge in applying the test for air of reality. 

In May 2013, in R v Buzizi, [2013] 2 SCR 248 [Buzizi, SCC], a divided Supreme Court of Canada (“SCC”) concluded that the trial judge erred in law in refusing three requests by the defence that he put to the jury the defence of provocation raised by Didier Buzizi. However, in dissent, LeBel and Wagner JJ found that the trial judge had not erred in law.

This decision is of particular interest since the majority and dissenting judges disagree on every aspect of the case, most notably the analysis on the defence of provocation, the application of the test for air of reality and the proper role of the trial judge in applying the test for air of reality.

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[filed: Criminal Law]

Jury Instructions and Post-Offence Conduct: Her Majesty the Queen v Jason Rodgerson

On January 14, 2015, the Supreme Court of Canada will hold a hearing for the appeal of R v Rodgerson, 2014 ONCA 366.

In the criminal law context, triers of fact can use post-offence conduct as evidence of certain facts in issue. For example, the evidence of an accused fleeing from a scene of an assault is relevant to the issue of identity, as the flight supports the inference that that person was the perpetrator of the assault. Of course, post-offence conduct can be relevant to some facts in issue but not others, necessitating careful jury instructions to make clear how this type of evidence should be used.

In Rodgerson, the proprietary of the trial judge’s instructions to the jury regarding the permissible uses of the accused’s post-offence conduct was central to the accused’s appeal.

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[filed: Uncategorized]

Supreme Court Declares a New Common Law Duty of Honest Performance: Bhasin v Hrynew

The Supreme Court of Canada has declared a new common law duty that will affect contract law in all the common law jurisdictions of Canada. In a December ruling, Bhasin v Hrynew, 2014 SCC 71, the Court declared a new common law duty of honest performance and also recognized a general organizing principle of contractual good faith.

Prior to this ruling, contract law has recognized a duty of good faith in the particular areas of the law that govern employment, insurance, and franchise contracts. Other areas of the law were less clear. In Bhasin, by way of a unanimous 7-0 decision, Cromwell J writes that the finding of this new common law duty will help contract law be both fairer and more certain while still allowing business to arrange their commercial affairs as they see fit. He notes that the Court’s articulation of a duty of honest performance and the underlying principle of good faith are minute changes in the law, but says he hopes that this will help clarify a confusing area of law.

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[filed: Contracts]

Tipping the Scale for Unwarranted Arrests: R v Day

Last month, the Supreme Court of Canada (“SCC”) delivered a single-paragraph oral judgment in the matter of R v Day, 2014 SCC 74, dismissing an appeal from the Supreme Court of Newfoundland and Labrador Court of Appeal (“NLCA”), 2014 NLCA 14 [Day]. The SCC’s affirmation of the appellate court’s decision seems to indicate that it is willing to accept minimal corroboration of an informant’s tip as the basis for a lawful unwarranted arrest.

In what follows, I will look at the NLCA decision, emphasizing the reasons of Justice Hoegg that were later affirmed by the SCC.

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[filed: Criminal Law Evidence Law]

R v Fearon: Cell Phones, Privacy, and the Supreme Court in the Digital Age

In R v Fearon, 2014 SCC 77 [Fearon], the Supreme Court of Canada considered the circumstances under which police officers can justifiably conduct a warrantless search of an arrestee’s cell phone or other digital device. Fundamentally, the decision required the court to assess and balance the public purposes served by effective law enforcement against the dignity and privacy interests of individuals guarded by section 8 of the Charter.

Justice Cromwell, writing for a narrow 4-3 majority, found that the correct balance between these interests could be struck by appropriately tailoring an existing common law police power – the power to search incident to arrest. In the result, a warrantless cell phone search upon lawful arrest can comply with section 8 of the Charter where certain conditions are met.

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[filed: Constitutional Law Criminal Law]

Bhasin and Beyond: Ontario Court of Appeal Dismisses Contracts Appeal in High Tower v Stevens

In High Tower Homes Corporation v Stevens, 2014 ONCA 911, the Court of Appeal for Ontario applied numerous contract law topics in disposing of an appeal regarding an agreement of purchase and sale in relation to two properties.

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[filed: Contracts]

Reasonable Repair of Rural Roadways: Fordham v Dutton-Dunwich

On December 11, 2014, the Ontario Court of Appeal (“ONCA”) released its decision in Fordham (Litigation guardian of) v Dutton-Dunwich (Municipality), 2014 ONCA 891 [Fordham]. The issue in the appeal was whether the trial judge misapplied the standard of care that must be met by a municipality in fulfilling its duty of reasonable repair of a public roadway. In making its determination, the court provided an interesting analysis on whether local practices on rural roadways should be considered when determining a municipality’s standard of care.

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[filed: Torts]

Consent is Neither Implied Nor Retroactive: R v Wilcox

In R v Wilcox, 2014 SCC 75, a paragraph-long oral judgment of the Supreme Court affirms the judgment of Quebec’s Court of Appeal, 2014 QCCA 321. In that decision, the majority of the Court of Appeal upheld a trial decision that found James Steven Wilcox guilty of aggravated sexual assault. The charge stemmed from Wilcox’s failure to disclose his HIV-positive status to a new partner before the two engaged in two episodes unprotected sex, first at a men’s sauna and then at Wilcox’s apartment.

In determining whether the Crown had proven that the complainant would not have consented to such risky sexual activity if disclosure had been made, the Court of Appeal was divided on how to weigh the complainant’s consent to unprotected sex with Wilcox after learning of the latter’s HIV status. By assigning limited weight to this factor relative to other considerations, the Court of Appeal majority’s decision stands to have a double-edged effect: empowering future complainants to speak authoritatively on their consent to any specific sexual act while also opening the door for defendants to challenge complainants’ credibility based on their risky health-related behaviours.

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[filed: Criminal Law Evidence Law]