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]

Catching the Wolf of Bay Street: R v Shin

The Ontario Court of Appeal’s (“ONCA”) decision in R v Shin, 2015 ONCA 189, upheld a drug trafficking conviction that followed from an extensive police investigation in the Greater Toronto Area (“GTA”). Brian Shin was arrested after he entered a stash house where police were waiting for him. Although the arrest violated Shin’s Charter rights, the ONCA affirmed that the violation did not suffice to exclude key evidence. Shin nevertheless gave candid testimony about his criminal past in order to avoid conviction on some of the more serious charges against him.

The Court of Appeal’s decision clarifies the extent to which such past criminal conduct can be used by defendants for tactical advantage, while leaving the extent of some police investigatory powers unclear.

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[filed: Charter Criminal Code Criminal Law]

A Right Without a Remedy? No Redress for Wrongful Conviction in Henry v British Columbia

Henry v British Columbia (Attorney General), 2014 BCCA 15, was recently granted leave to appeal to the Supreme Court of Canada (“SCC”). In 1983, Mr. Henry was wrongfully convicted of 17 sexual offences, for which he spent more than 27 years in jail. He was declared a dangerous offender and would have been incarcerated for an indefinite period of time. However, he was finally acquitted in 2010, after Vancouver police reopened unsolved sexual assault cases from the 1980s.

Mr. Henry’s wrongful conviction resulted from a series of serious and tragic errors by the police and Crown prosecutors at the time. The police had neglected to check Mr. Henry’s alibis and never tested him against the physical evidence found at the scene.

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[filed: Criminal Law]

Foreign Sentences Served in Canada: Khadr v Edmonton Institution

Omar Khadr’s journey through this country’s various courts will continue in May when the Supreme Court of Canada (“SCC”) holds a hearing for the appeal of Khadr v Edmonton Institution, 2014 ABCA 225.

Unlike earlier legal proceedings involving Khadr, this appeal is relatively less complex. The issue essentially boils down to whether Khadr should have been placed in a provincial correctional facility rather than a federal penitentiary when he was transferred to Canada to serve the remainder of his sentence.

Despite the limited scope, however, the SCC’s decision in this matter will have important implications regarding how the International Transfer of Offenders Act, SC 2004, c 21 (“ITOA”) is interpreted in conjunction with the Criminal Code, RSC 1985, c C-46 (“Criminal Code”) and the Youth Criminal Justice Act, SC 2002, c 1 (“YCJA”).

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[filed: Criminal Law International Law]

High School Students Successfully Challenge Mandatory Breathalyser for Prom Attendees under the Charter

In Simon Gillies et al v Toronto District School Board, 2015 ONSC 1038, Justice Himel of the Superior Court of Ontario held that a mandatory breathalyser test for high school prom attendees violated section 8 of the Charter. This case applied the Charter in an interesting context and led to a win for the high school students. This judgement also affirms some back to basics principles, such as that the Charter applies to bodies other than the government when they “are, in reality, ‘governmental’ in nature.”

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[filed: Charter]