A TheCourt.ca Exclusive Interview: R v Spencer One Year Later

A New Hurdle To Protecting Our Children? A Perspective from the Toronto Police Internet Child Exploitation Unit

Last year, TheCourt.ca published two key articles about the Supreme Court of Canada’s landmark ruling on Internet privacy. See Jordan Casey’s summary here and Stuart Wood’s analysis here.

After its release, R v Spencer[2014] 2 SCR 212 [Spencer] was hailed by privacy advocates as a monumental shift toward establishing meaningful protection of informational privacy and fundamental notions of liberty and human rights. However, strong views expressing the detrimental effect of Spencer are more pronounced as the impact of the ruling sets in.

In an exclusive interview, TheCourt.ca speaks with a representative of the Toronto Police Internet Child Exploitation (“ICE”) section.   Detective Sergeant Kim Gross is Officer in Charge of this section, and describes the ramifications of Spencer and the frustrating lack of public awareness of new challenges to protecting potential child victims.

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[filed: Access to Information Constitutional Law Criminal Code Criminal Law Criminal Procedure Evidence Law]

A Reluctant Justification: R v Michaud Uses Bedford Approach to Justify Section 7 Infringement

In R v Michaud, 2015 ONCA 585 [Michaud], the Court of Appeal for Ontario (“ONCA”) reluctantly followed the precedent set in Canada v Bedford, [2013] 3 SCR 1101 [Bedford]. Justice Lauwers of the ONCA found that a highway speed regulation did infringe section 7 of the Charter, but found it to be justified under section 1. The Supreme Court of Canada (“SCC”) has never found a section 7 infringement justified under section 1, and has indicated that it would be difficult to do so. The Bedford framework may change this long-lasting hesitancy—Michaud marks the first case where a section 7 infringement is found justified under section 1, and provides an interesting example of the deficiencies of the Bedford framework when put into practice.

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[filed: Charter]

Revisiting Expert Evidence: The New Test for Bias in Burgess

In White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23 [Burgess], the Supreme Court of Canada (“SCC”) established a test for assessing the impartiality of expert witnesses.

The issue arose when shareholders of a company obtained a new accounting firm, Grant Thornton LLP, which discovered errors in the previous auditors’ work. The shareholders brought a professional negligence action against the previous auditors, the defendants—the appellants in the present action—who responded by bringing a motion for summary judgment. The shareholders retained Susan MacMillan, a forensic accountant and partner at Grant Thornton LLP, to prepare a report on the errors made by the previous auditors. The appellants brought a motion to strike Ms. MacMillan’s affidavit; they submitted that Ms. MacMillan was biased as she had a financial interest in the outcome. The appellants maintained that there were conflicting auditor’s opinions. If the appellant auditors were successful in their claim, then Grant Thornton LLP could be exposed to liability, and Ms. MacMillan could be found personally liable as a partner of Grant Thornton LLP.

In Burgess, the SCC held that past business relations between a litigant and a proposed expert does not automatically render the expert biased.

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[filed: Evidence Law]

Establishing Discrimination in Quebec v Bombardier Inc

Human rights law is one of the most fast-evolving and dynamic areas of law. With the fabric of Canadian society evolving at a rapid pace, legislators and decision makers are grappling with increasingly nuanced and socially sensitive human rights disputes. The need for a clear, concise, and coherent approach to discrimination is therefore paramount.

The Supreme Court of Canada (“SCC”) recently took the opportunity to address some of these issues in Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Centre), 2015 SCC 39 [Bombardier]. This case is first and foremost an important decision in the field of human rights law, clarifying a number of procedural points for the benefit of tribunals across the country. However, what makes this decision curious from an administrative law perspective is the way in which the SCC engaged with the facts and evidence at play in dismissing the complainant’s appeal.

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[filed: Human Rights]

Face-Coverings and the Canadian Citizenship Oath: The Federal Court of Appeal Decides Ishaq v Canada

Few legal disputes have the potential of being as deeply divisive and politically polarizing as Canada v Ishaq, 2015 FCA 194 [Ishaq Appeal]. In addition to its potential cultural, social, political, and religious implications, this case underscores the tension between fair, democratically enacted legislation, and fundamental freedoms protected in the Charter. Although the Federal Court of Appeal (“FCA”) ruled in favour of the Applicant, Ms. Zunera Ishaq, it is hard to see this dispute ending here, and indeed, we can expect this matter to be settled on appeal to Canada’s highest court.

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[filed: Charter Constitutional Law]

Rejection of Joint Plea Deal Leaves Many Questions Unanswered: Matthew John Anthony-Cook v Her Majesty the Queen

The Supreme Court of Canada (“SCC”) has recently granted leave to appeal of the BC Court of Appeal decision in Matthew John Anthony-Cook v Her Majesty the Queen, 2015 BCCA 22 [Anthony-Cook]. The appellant, Mr. Anthony-Cook, was charged with manslaughter contrary to s. 236 of the Criminal Code, RSC 1985, c C-46. Mr. Anthony-Cook is a person who has been diagnosed with a mental illness and who also suffers from an addiction to cocaine and crystal methamphetamine.

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[filed: Criminal Law]

DCC 45 v Swan: Drawing Key Distinctions between the Duties of Loyalty and Care

Durham Condominium Corporation No. 45 v  Leslie Arthur Swan, 2015 ONCA 590 [Swan] is a brief case that raises key issues around board members’ statutory and contractual entitlements to be indemnified for legal liability and costs personally incurred in the course of duty. However, the issue that stands at the forefront of this case concerns the resulting distinction that courts must necessarily make between breaching the duty of care versus the duty of loyalty to the corporation.

Under federal and provincial incorporation statutes, board members, who are personally sued for discharging their directorial duties below the standard of care, are typically entitled to have the Board defend the actions on their behalf and to be indemnified for costs incurred against them.

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[filed: Commercial Law]

A Turn in Tide: Carter versus Rodriguez

Some months ago, the Supreme Court of Canada’s (“SCC”) ruling in Carter v Canada (Attorney General), [2015] 1 SCR 331 [Carter] made national headlines. Although all decisions of the SCC are important, this one seemed to strike a nerve or two on both sides of the playing field. In this case, as described in more detail here and here, the Court struck down a twenty-one-year-old law declaring physician-assisted dying an indictable offence. With the old law, once a person was convicted he or she could face up to 14 years of imprisonment. Although the ruling in R v Rodriguez, [1993] 3 SCR 519 [Rodriguez] was a 5:4 decision in favour of the prohibition against physician-assisted dying, the SCC in February reached a unanimous decision to the contrary.

Now, after the dust has settled and the Court’s decision has sunk deep within our legal minds, it’s important to consider why the SCC made this decision in the first place. Why was there a sudden shift after so many years of having an opposing law? Was the decision too dramatic? Was there a “happy medium” option that was overlooked? What factors might have influenced a unanimous decision after many years of not being able to successfully challenge an old law?

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[filed: Access to Information Charter Constitutional Law]

Remedy Drug Store Co Inc v Farnham: Repudiation is a Particularly Exceptional Remedy


Remedy Drug Store Co Inc v Farnham, 2015 ONCA 576, is centered on a dispute over whether the parties reached a settlement agreement arising out of the breakdown of an employment relationship.

The Ontario Court of Appeal reaffirmed its attitude to settlements: “it is in everyone’s interest that litigation be concluded by the parties’ agreement.” The decision reminds parties implementing contentious settlement agreements that it will be rare for conduct subsequent to a settlement agreement to amount to repudiation.

Repudiation or anticipatory repudiation continues to be treated by courts as a particularly exceptional remedy. When a deal is struck before the documentation is complete, the settlement will be binding if there is agreement on the essential terms. If a dispute arises after a written document setting out the terms of settlement is created, the question will seldom be one of repudiation, but rather one of an interpretive dispute. In such cases, parties who reach a settlement will usually be held to their bargains. Read the rest of this entry »

[filed: Contracts]

Hinse v Canada: Incomplete Justice?

Ignored Cries

In Hinse v Canada, 2015 SCC 35 [Hinse] an element of the Crown’s prerogative power is brought into the limelight. Hinse was exonerated approximately 30 years after his conviction for armed robbery. He served five years and ultimately received a settlement for the injustice he experienced. It was Hinse’s position that not only was the Attorney General of Quebec (“AGQ”) and Town of Mont Laurier responsible for his wrongful conviction but so was the Attorney General of Canada (“AGC”) in repeatedly denying his appeals for mercy under s.748 of the Criminal Code, RSC 1985, c C-46 [CC].

The Supreme Court of Canada (“SCC”) unanimously held that the trial judge got the legal analysis wrong in applying recent decision-making guidelines for granting mercy to past ministerial reviews. According to the SCC, the review of Hinse’s application was a policy decision and so the Crown had the benefit of “qualified immunity” (no different from, say, the protection the Finance Minister receives from potential negative fallout arising from a new tax policy).

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[filed: Constitutional Law Criminal Code Criminal Law Municipal Law Remedies Restitution and Unjust Enrichment Torts]