Upcoming Symposium: Understanding and Taming Public and Private Corruption in the 21st Century

From ex-New Orleans Mayor Ray Nagin being found guilty of corruption in the wake of Hurricane Katrina, to a report finding that the owners of Bangladesh’s Rana Plaza were responsible for a building collapse, to Canadian Senators wrongfully claiming various travel expenses and expenditures, the problems of public and private corruption are a reality in business and politics today. To bring such problems into focus, on Thursday November 6th and Friday November 7th, the Osgoode Hall Law Journal, in collaboration with the Jack & Mae Nathanson Centre on Transnational Human Rights, Crime, and Security, will host its second bi-annual symposium, entitled “Understanding and Taming Public and Private Corruption in the 21st Century.”

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[filed: Human Rights International Law]

The Supreme Court Upholds Security Certificate Regime: Canada v Harkat

Canada has used the process of issuing a “certificate of inadmissibility,” also known as a “security certificate,” to detain and remove foreign nationals suspected of being involved with terrorist activity. That process is legislated under the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”), which has been the subject of several Charter challenges reaching the Supreme Court of Canada. In Canada (Citizenship and Immigration) v Harkat, 2014 SCC 37 (“Harkat”), the constitutional validity of the IRPA’s provisions was challenged yet again. In this case, the challenge came from Mohamed Harkat, a man suspected of being a “sleeper agent” working with terrorist organizations.

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[filed: Charter Constitutional Law]

Cabinet and the Standard of Review Analysis: Canadian National Railway Co v Canada

Since the passage of the Railway Act, 1868, the Governor in Council (“Cabinet”) has played an important administrative role in areas of the economy regulated by federal legislation. Currently, Cabinet functions as an appeal body with authority to vary or rescind decisions made by administrative tribunals established under a cluster of statutes including the Telecommunications Act, the Canada Oil and Gas Operations Act and the Canada Transportation Act (“CTA”).

Given the Supreme Court of Canada’s (“SCC”) traditional deference to Cabinet decisions (see e.g. Inuit Tapirisat, [1980] 2 SCR 735), lower courts have grappled with the issue of determining the appropriate mechanism for the review of its administrative functions. Does the standard of review analysis set out in Dunsmuir v New Brunswick, 2008 SCC 8 [Dunsmuir] apply? If so, what is the applicable standard of review?

On 23 May 2014, the SCC squarely answered these questions in Canadian National Railway Co v Canada (Attorney General), 2014 SCC 40 [CN Rail]. The unanimous decision applied the Dunsmuir framework and determined that reasonableness review applies when Cabinet interprets the regulatory legislation it administers. This comment will provide a brief summary of the analysis used by Justice Rothstein in coming to these conclusions.

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[filed: Administrative Law]

Access to Justice and the Rule of Law Principle: Trial Lawyers Association v British Columbia

In its ruling in Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014 SCC 59, the Supreme Court of Canada found that court hearing fees imposed by regulation in British Columbia were unconstitutional because they interfered with access to the constitutionally protected core jurisdiction of the provincial superior courts and the rule of law as a fundamental constitutional principle.

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[filed: Constitutional Law]

Safeguarding Online Anonymity: R v Spencer Revisited

Last month, TheCourt.ca senior contributing editor Jordan Casey analyzed R v Spencer, 2014 SCC 43, a case that clarifies the Supreme Court of Canada’s (SCC) position on what constitutes a reasonable expectation of privacy in the digital age. This post further explores one of the themes touched on by Casey—the nature and significance of the privacy interest associated with online anonymity.

To review, the case involves the possession and dissemination of child pornography. The SCC upheld a Saskatchewan Court of Appeal decision finding the defendant, Matthew David Spencer, guilty of possessing child pornography. The SCC also concurred in setting aside the defendant’s acquittal at trial for a separate count of “making available” child pornography. However, in coming to the same conclusion as the appeals court, the SCC followed a different line of reasoning, one that offers a more expansive understanding of the right to privacy of Internet users.

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[filed: Charter Constitutional Law Criminal Law Criminal Procedure Privacy]

Appeal Watch: “Serious” Non-Political Crimes and Refugee Protection in Febles v Canada

In late March of this year, the Supreme Court of Canada (SCC) held a hearing for Febles v Canada (Minister of Citizenship and Immigration). The case will determine how Article 1F(b) of the United Nations Convention relating to the Status of Refugees (the Convention), July 28, 1951, [1969] Can. T.S. No 6 should be interpreted and applied in Canadian refugee law.

Article 1(F)(b) and s. 98 of the Immigration and Refugee Protection Act hold that persons who have been convicted of a serious non-political crime in another country before entering Canada are excluded from refugee protection. The purpose of this exclusion is to keep people who have committed serious crimes from bringing the asylum system into disrepute.

What is at issue is what constitutes a “serious” crime for the purposes of Article 1F(b). Because of the serious consequences of denying one from having his or her refugee protection claim heard, it is important that this exclusion is not applied arbitrarily, and a fair and clear test is implemented for its application. Read the rest of this entry »

[filed: Administrative Law Citizenship and Immigration]

Can Domestic Abuse Victims Qualify as Refugees? – A Comment on Matter of A-R-C-G et al

The recently-released decision of the United States’ Board of Immigration Appeals (“the Board”) in the Matter of A-R-C-G et al., (“Matter of A-R-C-G“), 26 I&N Dec. 388 (BIA 2014) may signal the United States’ growing openness to granting asylum to women who flee from domestic abuse.  While the decision itself may be considered overdue, its reasoning takes a strong critical stance against nations that do not make reasonable efforts to protect women from violence. This reasoning stands in contrast to the more conservative approach that is usually applied by courts in both the United States and Canada.

If the Board’s reasoning in the Matter of A-R-C-G is adopted by courts in the United States and elsewhere, then the threshold for making successful refugee claims will have shifted significantly in favour of future claimants who flee from abusive relationships in nations that are unwilling or unable to offer adequate protection.

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[filed: Administrative Law Citizenship and Immigration Human Rights]

Store Closures Represent a Change in Conditions of Employment: United Food and Commercial Workers v Wal-Mart Canada

Wal-Mart’s historically combative relationship with unions most recently became an issue at the Supreme Court of Canada (SCC) in the case of United Food and Commercial Workers, Local 503 v Wal-Mart Canada Corp., 2014 SCC 45. In this case, the question before the Court was whether s. 59 of the Quebec Labour Code, c 27 (“the Code”) could be used to challenge the unilateral cancellation of the employment contract for all of the employees of an establishment, as would occur in the closure of a business.

Indeed, this very situation did occur with the closure of the Wal-Mart store in Jonquière, Québec—announced on the same day that an arbitrator had been brought in to resolve the stalled negotiation of the first collective agreement between the United Food and Commercial Workers, Local 503 (“the Union”) and Wal-Mart. The SCC also dealt with the related sub-issue of whether the arbitrator’s award was unreasonable in light of the arbitrator’s finding of an unlawful change in the conditions of employment.

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[filed: Administrative Law Labour and Employment]

Addison & Leyen Ltd v Fraser Milner Casgrain LLP: An Illustration of Restitution

In Addison & Leyen Ltd v Fraser Milner Casgrain LLP, 2014 ABCA 230 [Addison & Leyen], the Alberta Court of Appeal (“ABCA”) handed down a short but significant decision. Fraser Milner Casgrain was forced to defend an action predicated on a legal opinion drafted in 1989 by a predecessor firm. According to the plaintiffs, the opinion was written negligently and exposed them to $490,000 in tax liability twelve years after the letter was written.

The plaintiffs applied the law of restitution and brought a claim for common law implied indemnity. The law of negligence was inapplicable because of the 10 year ultimate time bar in the Alberta Limitations Act, RSA 2000, c L-12 [Limitations Act]. This case derives its significance from the ABCA’s discussion of the cause of action in implied indemnity.

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[filed: Contracts Restitution and Unjust Enrichment Torts]

Alberta Has No Constitutional Obligation to Publish Its Legislation in French: R v Caron

In 2003, Mr. Caron was issued a traffic ticket for making an illegal left hand turn. Rather than simply paying the fine, Mr. Caron sought to challenge the ticket on the ground that the ticket was issued in English only, and thus violated the province of Alberta’s constitutional obligation to publish its legislation in both English and French. He also argued that the Languages Act, RSA 2000, which allows Alberta to legislate in English only, was ultra vires. Mr. Caron was unsuccessful and the Alberta Court of Appeal found that the province of Alberta has no obligation to print its legislation in French, despite “the rich history of the use of the French language in Alberta” (para 2).

This case has a long judicial history and has resulted in a series of decisions on costs, which have been covered in detail in previous postings on TheCourt. This particular case is worth watching as Mr. Caron and his lawyers plan on seeking leave to the Supreme Court of Canada.

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[filed: Charter Official Languages]