A detained person’s right to counsel is guaranteed by s. 10(b) of the Charter. It imposes on police a duty to “hold off” on trying to elicit incriminating evidence from the detainee “until he or she has had a reasonable opportunity to reach counsel”: R. v. Prosper,  3 S.C.R. 236, at p. 269.… Continue Reading
Is a $5 million fine a less severe punishment than a night in jail? Are hefty financial penalties for quasi-criminal or regulatory offences able to trigger the procedural protections of the Canadian Charter of Rights and Freedoms when combined with the threat of imprisonment? The Supreme Court of Canada had the opportunity to address these questions when it recently released the twin decisions of R v Peers, 2017 SCC 13 and R v Aitkens, 2017 SCC 14.… Continue Reading
In Ernst v. Alberta Energy Regulator, 2017 SCC 1, the Court split 4-4-1 over the constitutionality of an immunity clause in favour of the Alberta Energy Regulator (the “Board”). The case was resolved largely on procedural grounds. For example, Justice Abella—the “1” in the 4-4-1 split—held that Ms. Ernst’s failure to provide notice of her constitutional challenge to the immunity clause was fatal to her claim. Meanwhile, the remaining eight judges divided over the issue of whether to accept Ms. Ernst’s concession that the immunity clause actually barred her claim against the Board. As a result, … Continue Reading
We may be into the lazy days of midsummer, but the Supreme Court of Canada (“SCC”) has been busy, releasing a number of important decisions in the areas of insurance, contract, labour & employment, constitutional, property, evidence and administrative law.
Since our last SCC Monitor post, the SCC has released the following judgments of interest:… Continue Reading
If there’s one thing that most non-lawyers know about being questioned by the authorities, it’s that “anything said can and will be used against [you] in court”. And, if you’re already in court, then you can “take the Fifth” and refuse to answer a question whose answer may incriminate you.
Right? Not quite.
The privilege against self-incrimination operates differently in Canada than it does in the United States. Here, there is no “Fifth” for a witness to “take”. Unlike the Fifth Amendment to the U.S. Constitution, the Canadian Charter of Rights and Freedoms does not permit a witness to answer … Continue Reading
In a decision of interest to barristers, the Ontario Court of Appeal held that the Law Society of Upper Canada is entitled to deference when regulating a lawyer’s in-court conduct in Groia v The Law Society of Upper Canada, 2016 ONCA 471 (“Groia”). The Court of Appeal affirmed the Law Society’s holding that it is professional misconduct to make allegations of prosecutorial misconduct or that impugn the integrity of opposing counsel, unless the allegations are made in good faith and with a reasonable basis.
Joseph Groia defended John Felderhof against securities charges brought by the Ontario … Continue Reading
Solicitor-client privilege is nearly sacrosanct in Canada. The circumstances in which it can be breached are limited and specific. Courts will not abide attempts by the Government to do away with privilege for expediency’s sake or overreach when limiting the application of the privilege. This was recently reinforced by the Supreme Court of Canada in two decisions that considered the CRA’s powers to compel information from lawyers and notaries: Canada (Attorney General) v. Chambre des notaires du Quebec and Canada (National Revenue) v. Thompson.… Continue Reading
Authorities must relinquish their broad compulsory auditing powers when engaging in an adversarial determination of penal liability or, as stated by the Supreme Court in R. v. Jarvis,  3 SCR 757  when they “cross the Rubicon”. This flows from the protection against self-incrimination enshrined under section 7 of the Canadian Charter of Rights and Freedom, a protection which, traditionally, only benefits individuals. However, according to a recent Court of Québec decision in Agence du revenu du Québec c. BT Céramiques inc., 2015 QCCQ 14534  the protection of the Rubicon is not exclusive to … Continue Reading
Today we comment on a recent judgment of the Quebec Court of Appeal adding to the infinite quest for a fair balance between freedom of speech and protection of reputation. This case reiterates the fine line between a reasonably fair and a defamatory comment. Clients questioning the appropriateness of comments they are about to make in the public sphere are welcome to seek our opinion. As one of the parties in this case submitted a leave application to the Supreme Court of Canada, this case is being closely monitored.… Continue Reading
Earlier this year, the Supreme Court of Canada delivered a pair of big wins to Canadian unions. Both judgments relate to public sector unions, but may have important implications for labour law more generally. In both cases, the Court has undermined its own precedent.
Mounted Police Association of Ontario v. Canada (Attorney General)… Continue Reading
In R. v. Mian, the Supreme Court provided extensive comment on when an “appellate court can disrupt the adversarial system and raise a ground of appeal on its own” initiative.
The Court established a new test for the exercise of appellate courts’ discretion to raise a new issue on appeal. Appellate court judges will now ask themselves three questions when deciding whether to raise a new issue: 1) is the issue actually “new”?; 2) would failing to raise the issue “risk an injustice”?; and 3) can the new issue be raised in a way that will be fair to … Continue Reading
Lower courts in both Canada and the US have been deeply divided on the application of their respective Supreme Courts’ precedents on whether the police need a warrant to search the contents of a smart/cell phone seized during a lawful arrest. On June 25, 2014, the US Supreme Court unanimously settled US law in Riley v. California, No. 13-132. The court found that privacy interests at stake outweigh any legitimate governmental interest, absent any “exigent circumstances”.
The Supreme Court of Canada recently released a unanimous judgment in R. v. Vu, 2013 SCC 60, in which it ruled that authorities must obtain specific authorization in a search warrant in order to search computers located on premises covered by the warrant. In this case, the police collected incriminating evidence against Mr. Thanh Long Vu from two laptops and a cellular phone on the basis of a search warrant that did not specify that the police had authority to search these devices.… Continue Reading
The British Columbia Court of Appeal recently upheld the denial of certification of a proposed class action involving routine strip searches at a Vancouver city jail. Thorburn v. British Columbia (Public Safety and Solicitor General) illustrates the difficulty of certification in cases that require an individual inquiry into the facts and circumstances unique to each class member.
On April 1, 2003, Vancouver students Elise Thorburn and Christopher Jacob were arrested on charges of mischief for peacefully protesting outside the U.S. Consulate in Vancouver. Thorburn and Jacob were taken to a city jail (the “Jail”) where they received a pat-down search … Continue Reading
In Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401 [“United Food”], the Supreme Court of Canada has unanimously decided that Alberta’s Personal Information Protection Act [“PIPA”] unjustifiably limits a union’s right to freedom of expression in the context of a lawful strike. The judgment, delivered by Cromwell and Abella JJ. concluded that:
… Continue Reading
 PIPA imposes restrictions on a union’s ability to communicate and persuade the public of its cause, impairing its ability to use one of its most effective bargaining strategies in the course of a lawful strike. In our
Earlier this week, the Prime Minister surprised many Supreme Court-watchers by nominating the Honourable Marc Nadon to replace Justice Fish at the Supreme Court of Canada. Given this recent appointment, the Canadian Appeals Monitor has taken a look at Nadon J.’s jurisprudential legacy to date and identified key cases which illustrate his judicial leanings, especially as it applies to Canadian businesses and professions. The Canadian Appeals Monitor has also looked at some of the cases that Nadon has argued to get better insights into what kind of judge he is likely to be in the Supreme Court.
On May 2, 2011, Canadians voted in the 41st federal election. Voters in the riding of Etobicoke Centre elected Ted Opitz to represent them in Parliament. The race was hotly contested. So too was the result.
A judicial recount showed that Mr. Opitz won by a plurality of just 26 votes. Boris Wrzesnewskyj, the runner-up, applied to the Ontario Superior Court of Justice under s. 524(1)(b) of the Canada Elections Act (the “Act”) to annul the election based on “irregularities … that affected the result of the election”.
In Dish Network L.L.C. v. Rex, the Supreme Court of British Columbia took the rare step of ordering advance costs in a constitutional challenge. More surprisingly, the court ordered three private litigants to pay 50% of those costs. This case is now headed to the Court of Appeal for British Columbia.
Mr. Rex sold satellite receivers to Canadian residents and, using false U.S. addresses, arranged subscriptions for them from American signal providers. Two American providers and one Canadian provider sued Mr. Rex under the Radiocommunication Act and at common law. In his defence, Mr. Rex alleged that aspects of… Continue Reading