Freedom of Association and Collective Bargaining Rights Face Legislative Challenge: British Columbia Teachers’ Federation v British Columbia

The government of British Columbia (BC) recently filed an appeal challenging the decision by the Supreme Court of British Columbia (“BCSC”) in British Columbia Teachers’ Federation v British Columbia, 2014 BCSC 121 (“BCTF”) which found in favour of the provincial teachers’ union. The leader of the governing BC Liberal Party, Christy Clarke, has signalled the province’s readiness to fight the teachers up to the Supreme Court of Canada (“SCC”), so this appeal will likely not resolve the legal and political issues in question between the teachers and the government anytime soon. BC governments have historically had a conflictual relationship with BC teachers, resulting in several instances of failed legislation, court cases, and teacher strikes—sometimes, at the same time. In addition, the neoliberal economic context has presented the opportunity for governments to pass legislation challenging the collective bargaining regime in regions across Canada.

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[filed: Charter Constitutional Law Labour and Employment]

Carter v Canada: Highlights from the Supreme Court of Canada Hearing

Early on a rainy morning, I arrived to the Supreme Court of Canada and was lucky enough to be able to watch the Carter v Canada (Attorney General) [Carter] appeal. In this case, several plaintiffs challenged the Criminal Code provisions prohibiting physician assisted suicide and voluntary euthanasia under sections 7 and 15 of the Charter. This case is notable, as in Rodriguez v British Columbia (Attorney General), [1993] 3 SCR 519 [Rodriguez], a case with almost the same circumstances as this one, the Court upheld the impugned legislative provisions in a split decision. Justice Sopinka, writing for five members of the Court, held that the laws infringed Ms. Rodriguez’s right to security of the person, but that the infringements did not contravene the principles of fundamental justice.

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[filed: Charter Criminal Law]

Minority Language Education for Majority Students: CS Francophone du Yukon v Yukon Territory

On  26 June 2014, the Supreme Court of Canada (“SCC”) agreed to hear an appeal of Commission Scolaire Francophone du Yukon v Attorney General of the Yukon Territory, 2014 YKCA 4 [CS Francophone]. The case concerns a dispute over the control and management of the Territory’s French language education system and is the first time in over a decade that the SCC will render a decision on the scope of minority language education rights in English Canada.

The issue in the appeal is whether sections 2, 5, and 9 of the French Language Instruction Regulation, YOIC 1996/099, infringes section 23 of the Charter by limiting admission to minority language school boards to students whose parents are members of the linguistic minority community.

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[filed: Constitutional Law]

Torture and the Limits of Sovereign Immunity: Kazemi Estate v Islamic Republic of Iran

In Kazemi Estate v Islamic Republic of Iran, 2014 SCC 62, the Supreme Court of Canada (SCC) looks at whether Canadians have the right to sue foreign governments for damages resulting from acts of torture. The SCC ultimately denied the victims’ claim for a civil action, finding that acts of torture are not exceptions to the general rule of sovereign immunity, as codified in the State Immunity Act, RSC 1985, c S-18 [SIA]. The SCC also entertained — but ultimately set aside — arguments challenging the constitutionality of certain provisions of the SIA, clearly stating that efforts to restrict sovereign immunity should be decided on by Parliament, not the courts.

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[filed: Charter Constitutional Law International Law]

Martin v Alberta, Federal Employees, and Workplace Injuries: Just Like the Rest of Us

In Martin v Alberta (Workers’ Compensation Board), 2014 SCC 25, the Supreme Court of Canada (“SCC”) resolved a statutory overlap that had been treated inconsistently by appellate courts across Canada. The SCC held that workplace compensation claims of federal employees, who are subject to the Government Employees Compensation Act, RSC 1985, c G-5 [GECA], are generally governed by the compensation regime of the province wherein they usually work.

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[filed: Labour and Employment]

Banks Forced to Repay Added Charges Plus Punitive Damages: Bank of Montreal v Marcotte

On September 19, 2014, the Supreme Court released its decision in Bank of Montreal v Marcotte, 2014 SCC 55 [BMO v Marcotte], and its two companion cases, Amex Bank of Canada v Adams, 2014 SCC 56, and Marcotte v Fédération des caisses Desjardins du Québec, 2014 SCC 57. The case in BMO v Marcotte was based on major banks charging undisclosed fees for credit card transactions made in foreign currency. The Supreme Court found a group of major banks liable for repayment of those undisclosed charges, plus punitive damages.

In rendering its decision, the Supreme Court addressed many fundamental features of consumer protection laws that apply to Federally regulated businesses in Canada. In particular, BMO v Marcotte (1) establishes new standards for the authorization of class actions in Quebec; (2) emphasizes co-operative federalism as the dominant approach to issues arising from overlapping Federal and Provincial jurisdiction; and (3) affirms the significance of business transparency and accountability to the determination of punitive damages. On the whole, BMO v Marcotte may constitute a game-changer for how Federal firms assess risk and the costs of doing business in Canada.

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[filed: Class proceedings Constitutional Law Consumer Protection]

Aboriginal Status, Mandatory Minimums, and Prosecutorial Discretion: R v Anderson

Back in June, the Supreme Court of Canada (SCC) dealt with the issue of whether Crown prosecutors are constitutionally required to consider the Aboriginal status of accused persons when deciding to pursue a mandatory minimum sentence in R v Anderson, 2014 SCC 41.

The respondent, Frederick Anderson, was charged with impaired driving pursuant to section 253 of the Criminal Code of Canada (the Code), which was his fifth driving-related offence. Because of Anderson’s history of driving-related offences, the Crown, exercising its prosecutorial discretion, decided to seek a mandatory minimum sentence of 120 days.

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[filed: Aboriginal Law Criminal Law]

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 TheCourt.ca 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.

History

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]