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Aboriginal Dangerous Offenders and Sentencing

This month the British Columbia Court of Appeal (“BCCA”) handed down a decision in the case of an Aboriginal offender, David Jennings. The accused in R v Jennings, 2016 BCCA 127 had a violent criminal history involving repeated sexual offenses against children over the course of nearly 30 years. Central to the appeal was the issue of how Gladue factors should be weighed by a judge in the trial of an Aboriginal person along with alternative forms of sentencing for Aboriginal people. This ruling speaks to the misconception that an Aboriginal person should necessarily be treated more leniently by the...

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Ontario Court of Appeal Holding on Spousal Incompetency Now Moot: R v Nguyen

The recent decision of the Ontario Court of Appeal in R v Nguyen, 2015 ONCA 278 [Nguyen] on the spousal incompetency rule has now been rendered largely moot as a result of changes to the Canada Evidence Act [CEA] brought in by the previous Harper government. At issue in Nguyen was whether the spousal incompetency rule could be extended to common law spouses. Following a jury trial Bao Quoc Nguyen (“Bao”) and Kien Binh Tu (“Binh”) were convicted of first-degree murder, and Bao Tri Nguyen (“Tri”) was found guilty as an accessory after the fact to murder. The victim, Quang...

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Ross-Clair v Canada (Attorney General): Contractors Beware of Charging for Extras

Ross-Clair, a division of R.O.M. Contractors Inc. v Canada (Attorney General), 2016 ONCA 205 [Ross-Clair] is the Ontario Court of Appeal’s (“ONCA”) latest decision affecting the commercial construction industry. Commercial construction contracts typically include not only arbitration clauses, but also detailed provisions on how to deal with disputes over additional costs incurred during the project “extras.” The contract in Ross-Clair contained a provision appointing the Project Engineer (“PJ”) to adjudicate all claims for extras made by Ross-Clair, a division of R.O.M. Contractors (the “Contractor”) and to make a binding decision on whether to approve such extra costs. While the PJ’s...

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Cold Case Murders in Toronto and the Role of the Public

I’ve stopped counting the number of people that have asked me whether I tuned into the “Serial” podcast about the murder of Baltimore teen Hae Min Lee and possible wrongful conviction of her boyfriend Adnan Syed. The popularity of this online version of a 48 hours special spread like wildfire. Fans of the show seemed to wait with baited breath while discussing what new elements of the case the next episode would uncover. The podcast captured the attention of not only armchair investigator wannabes, but also a State prosecutor, defence attorneys and other justice actors in the State of Maryland....

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Part II: 2015 Year in Review

2015 has been a particularly significant year for the Supreme Court of Canada (“SCC”) in a number of ways, and indeed, TheCourt.ca’s editorial staff has been kept quite busy. Part I of this year-in-review post will summarize the activity of the SCC and the comings and goings of Justices and staff. Part II will discuss some of the key precedent-setting decisions handed down this past year and important cases to follow in 2016. Decisions, Decisions… Constitutional Law By far the most politically and socially significant decision of 2015 was that of Carter v Canada (Attorney General), [2015] 1 SCR 331,...

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Part I: 2015 Year in Review

2015 has been a particularly significant year for the Supreme Court of Canada (“SCC”) in a number of ways, and indeed, TheCourt.ca’s editorial staff has been kept quite busy. Part I of this year-in-review post will summarize the activity of the SCC and the comings and goings of Justices and staff. Part II will discuss some of the key precedent-setting decisions handed down this past year and important cases to follow in 2016. The Activity of the Court From purely a numerical standpoint, 2015 has not been a terribly prolific year for the SCC, with only 65 decisions  – 12...

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Sailing in Uncharted Waters: The Duty to Consult for Administrative Tribunals

The duty to consult is a constitutional obligation grounded in the honour of the Crown and entrenched in section 35 of our Constitution. This duty arises whenever conduct may adversely affect Aboriginal rights or title. The content of this duty has continued to be fleshed out since its articulation in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 [Haida]. One question that has remained unanswered, however, is how boards and administrative tribunals are meant to engage with this duty. It is the Crown’s exclusive obligation to consult with affected Aboriginal parties, but the law has yet to...

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Mr. Big Confessions: Distinguishing Hart from Johnston

Among the more controversial areas of Canadian evidence law are confessions obtained through “Mr. Big” operations. This unique investigative tactic involves the creation of an elaborate but fictitious criminal organization that recruits the suspect of a cold case to join its ranks. Over the course of several “scenarios,” the participating undercover police officers engage the individual in their dealings, offering monetary and (sometimes significant) social incentives to the person, and exposing him or her to (usually quite violent) criminal activity. After building a sufficient bond, the target is ultimately given an “interview” with Mr. Big – the head of the...

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A Strong Endorsement of Testamentary Freedom: Spence v BMO Trust

When should courts invoke public policy to interfere with testamentary freedom? The Ontario Court of Appeal (“ONCA”) recently revisited this question in Spence v BMO Trust Company, 2016 ONCA 196 [Spence]. In Spence, Mr. Spence (the testator) excluded his daughter, Verolin, and grandson, A.S., from his Will. Instead, he bequeathed his assets to his second daughter, Donna, and her children. Mr. Spence’s reason for disinheriting Verolin appears to be racially motivated. The application judge, Justice Gilmore, held that the Will violated public policy and set aside the Will in its entirety. The ONCA, issuing a strong defence for testamentary freedom,...

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Wrestling over Wills and Wealth in Neuberger v York

Nothing riles a family up more than a good ‘ol contested probate of will. This is especially true if there are millions to be had. This month, the Court of Appeal for Ontario (“ONCA”) issued a ruling in Neuberger v York, 2016 ONCA 191 that allows one faction of a family to challenge a will where the other faction of that family is set to receive substantially more from the will. The Facts The warring clan is that of the now deceased Sarah and Chaim Neuberger, prominent Toronto philanthropists and real estate giants. A holocaust survivor, Mr. Neuberger came to...