Police Officers Infringed Rights with Selective Searches during G20: Figueiras v Toronto (Police Services Board)

In Figueiras v Toronto (Police Services Board), 2015 ONCA 208, the scope of common law police powers were at issue in regards to their conduct with protesters during the 2010 G20 summit in Toronto. In what has been hailed a victory for G20 demonstrators, the Ontario Court of Appeal granted Mr. Figueiras’ appeal in holding that officers had infringed his Charter right to freedom of expression and his common law liberty rights, and had committed the tort of battery.

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[filed: Charter]

More on Morin and Institutional Delay: R v Williamson

The Supreme Court of Canada (“SCC”) will have an opportunity to bring some much-needed clarity to how analyses of unreasonable delay pursuant to section 11(b) of the Charter should be approached in its upcoming decisions in the appeals of both R v Williamson, 2014 ONCA 598 [Williamson], and R v Jordan, 2014 BCCA 241 [Jordan].

This piece will focus on the appeal of Williamson.

The guidelines for approaching section 11(b) claims were set out in R v Morin, [1992] SCR 771. Generally, a claim may merit section 11(b) scrutiny eight to ten months between committal and trial and a further six to eight months of delay following a preliminary inquiry.

After considering the length of the delay, any waivers of time periods, the reasons for the delays, and if and how the accused was prejudiced by the delay, courts need to consider whether the delay is justifiable while balancing the interests of the accused with the societal interests of hearing the trial on its merits.

The contrasting court of appeal decisions in Williamson and Jordan, however, illustrate the need for further guidance from the country’s top court.

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[filed: Charter]

Benchers Must Reconsider Lawyer’s Disbarment: The Law Society of British Columbia v Zoraik

In The Law Society of British Columbia v Zoraik, 2015 BCCA 137 [Zoraik], the British Columbia Court of Appeal (“BCCA”) held that Benchers of the Law Society of British Columbia (“LSBC”) failed to consider the Appellant’s Charter argument and whether it could refer a matter back to its Discipline Committee. As such, the BCCA referred the issue of whether Malcolm Zoraik is to be disbarred back to the Benchers. This decision is a further exemplification of the ability of administrative tribunals to deal with Charter questions post R v Conway, [2010] 1 SCR 765 [Conway].

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[filed: Administrative Law]

How Long is too Long? R v Sanghera and s. 11(b) of the Charter

Pursuant to s. 11(b) of the Charter, “[a]ny person charged with an offence has the right…(b) to be tried within a reasonable time….” This case is concerned with whether or not Mr. Savdip Sanghera’s s. 11(b) Charter right was violated, and if so, whether or not such a delay was reasonable.

On March 23, 2015, the Supreme Court of Canada (“SCC”) dismissed the appeal of R v Sanghera, 2014 BCCA 249 [Sanghera], from the British Columbia Court of Appeal (“BCCA”). The majority for the SCC affirmed MacKenzie J.A.’s decision that even “if [the trial judge] erred in not attributing to the Crown responsibility the five months’ delay arising from the direct indictment,…such error does not upset the overall result, as [there are] other factors [that] weigh more heavily on the other side of the balance” (Sanghera, para 148). Karakatsanis and Côté JJ. (dissenting), however, would have allowed the appeal for the reasons of Bennett J.A.

What is most interesting about this case is that neither the justices of the BCCA nor the justices of the SCC were able to agree with one another on whether or not Mr. Sanghera’s s. 11(b) Charter rights had been violated by the delay.

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[filed: Charter Criminal Law]

In a Battle of the Doctrines, Division of Powers Trumps Cooperative Federalism: Quebec (AG) v Canada

The federal government has the right to destroy data collected for the highly contentious long-form gun registry, the Supreme Court of Canada (“SCC”) ruled late March. In a 5-4 decision, the majority in Quebec (AG) v Canada (AG), 2015 SCC 14, found that the federal government’s right to destroy data it collected is based on authority granted in the Constitution Act, 1867 to legislate on criminal law matters. The three Quebec judges, joined by Justice Abella, formed the dissent. The minority held that the destruction of the data was unconstitutional, citing the doctrine of cooperative federalism.
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[filed: Constitutional Law Criminal Law]

Loyola v Quebec, Part II: Freedom of Religion for Religious Organizations

This is the second of a two-part comment on the Supreme Court of Canada (“SCC”) decision in Loyola High School v Quebec (Attorney General) 2015 SCC 12 [Loyola]. It will summarize the judgment of Chief Justice McLachlin and Justice Moldaver, which partially concurred with the majority judgment of Justice Abella.

As described in Part I, Loyola involves a decision by Quebec’s Minister of Education, Recreation and Sport to deny Loyola High School (“Loyola”) an exception from a provincially-mandated Ethics and Religious Culture (“ERC”) program. Loyola is a private English-language Catholic secondary school for boys, established by Jesuits in 1848. For the facts and judicial history of the case, please see Part I.

The central difference between the majority judgment and the judgment of McLachlin and Moldaver is the treatment of Loyola’s argument that, as a religious organization, the school itself was entitled to religious freedom under section 2(a) of the Charter. While the majority avoided the issue, finding it was not necessary to dispose of the appeal, McLachlin and Moldaver answered it directly. They found religion’s communal character means that protecting individuals’ religious freedom requires protecting the religious freedom of religious institutions, including religious educational bodies such as Loyola.

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[filed: Constitutional Law]

A Prosecution “Littered With Errors”: Drugs and Guns in R v Shia

In R v Shia, 2015 ONCA 190 [Shia], the Court of Appeal for Ontario considered an appeal from a finding of guilt and an absolute discharge from a drug-related offence. Interestingly, the prosecution included a number of errors, with some attributable to every party involved, including the presiding justice. In a short and incisive decision, the Court of Appeal resolved the matter, setting aside the conviction and ordering a new trial.

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[filed: Criminal Law Criminal Procedure]

R v Belcourt : Privacy and Punishment When the Safety Is Off

The British Columbia Court of Appeal (“BCCA”) decision in R v Belcourt, 2015 BCCA 126 [Belcourt], weighed the constitutional underpinnings of two different issues—privacy, and instructions on mens rea requirements—in a second-degree murder charge.

The BCCA concluded that the privacy rights of Belcourt, the accused, were not infringed by the production of text messages under a general warrant. However, they did conclude that the trial judge did not clearly explain the mens rea requirement of the notoriously tricky section 229(c) of the Criminal Code, RSC 1985, c C-46 [Code] to the jury, and thus ordered a new trial.

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[filed: Constitutional Law Criminal Law Privacy]

Police Chief’s Decision Returned for Review: Toronto (Police Association) v Toronto (Police Services Board)

In Toronto (Police Association) v Toronto (Police Services Board), 2015 ONCA 188 [Toronto v Toronto], the Ontario Court of Appeal (“ONCA”) considered the interaction between the collective agreement that governs the employment of police officers (“CA”), and the Police Services Act, RSO 1990, c P15 [PSA]. The question was whether a particular decision of the Chief of Police fell within the ambit of the CA. The arbitrator found that the order did not fall within the CA’s scope. The ONCA found this decision unreasonable. In so doing, the ONCA took part in the ongoing debate surrounding collective bargaining in the public sector.

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[filed: Administrative Law Labour and Employment]

“Persistent Discord” and the Standard of Review in Dismissal Cases: Wilson v Atomic Energy

In Wilson v Atomic Energy of Canada Limited, 2015 FCA 17 [Wilson], released January 22, 2015, the Federal Court of Appeal (“FCA”) dismissed an appeal relating to a dismissal from employment under the Canada Labour Code, RSC 1985, c L-2 [CLA]. This judgment covers a broad range of administrative law issues, clarifying the permissibility of dismissal without cause and indicating the standard of review to be used when addressing cases with persistent discord in adjudicator opinions.

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[filed: Administrative Law Labour and Employment]