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]

Prison Transfers Must Be Fair, Supreme Court Rules: Mission Institution v Khela

Earlier this year, in late March, the Supreme Court of Canada (SCC) sent a resounding message to federal prison wardens across the country that inmates’ freedoms cannot be limited lightly. In Mission Institution v Khela, 2014 SCC 24, a unanimous ruling of eight judges, the SCC made it clear that if you decide to further limit the freedoms of an inmate, you must justify your decision with reasons or invoke a special provision of the Corrections and Conditional Release Act, SC 1992, c 20 (CCRA). Failing to carry out one of those actions undermines the procedural fairness owed to prisoners. The SCC also affirmed the importance of providing access to justice by refusing to limit remedial avenues for prisoners.

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[filed: Charter Criminal Law]

Ontario Court of Appeal Strikes Down Federal “Tough-On-Crime” Legislation: R v Safazadeh-Markhali

In R v Safarzadeh-Markhali, 2014 ONCA 627, the Court of Appeal for Ontario struck down the legislative scheme surrounding sentencing and the credits granted for pre-sentence custody.

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[filed: Charter Criminal Law]

The Ontario Human Rights Tribunal and the Provincial Implications of Moore v British Columbia

It has been nearly two years since the Supreme Court of Canada (“SCC”) released its unanimous decision in Moore v British Columbia (Ministry of Education), [2012] 3 SCR 360 [Moore]. That decision considered the applicability of human rights legislation within the context of public services delivered to students with disabilities. At the time, commentators questioned the extent to which the decision would be applied in Ontario. This issue was addressed last summer by the Ontario Human Rights Tribunal (“OHRT”) in RB v Keewatin-Patricia District School Board, 2013 HRTO 1436 [RB]. This comment details the Moore and RB decisions and the effect they have had on special education services.

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[filed: Human Rights]

A Case about Complete Denial of Access to Counsel: R v Taylor

In R v Taylor, 2014 SCC 50, Abella J. declared that section 10(b) Canadian Charter of Rights and Freedoms had been violated, which resulted in Jamie Kenneth Taylor’s “inability to exercise a meaningful and informed choice as to whether he should or should not consent to the taking of blood samples at the hospital” (at para 19). As such, the Supreme Court of Canada upheld the Court of Appeal’s decision to exclude the blood samples and acquit Mr. Taylor of all charges (Taylor, at para 19).

By ruling in favour of the preservation of Mr. Taylor’s Charter rights, the Supreme Court of Canada made two interesting and important assertions about section 10(b) of the Charter and the boundaries of police powers.

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[filed: Charter Constitutional Law Criminal Law]

A New Standard for “Mr. Big” Confessions: R v Hart  

R v Hart, 2014 SCC 52 [Hart], is about the admissibility of confessions elicited during “Mr. Big” operations, a relatively common sting tactic used by police across the country. The Supreme Court of Canada (SCC) found that confessions given during such operations are often unreliable and introduced a stringent new test for their admissibility as evidence in criminal cases. As such, the decision seeks to curtail the abuse of police power in coercing unreliable confessions.

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[filed: Criminal Law Criminal Procedure Evidence Law]