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 R. v. Anthony‑Cook, 2016 SCC 43, the Supreme Court of Canada recently confirmed that trial judges should only depart from a joint submission in very limited circumstances, where the sentence proposed would bring the administration of justice into disrepute, or is otherwise not in the public interest.
Resolution negotiations are a prevalent and necessary feature of our criminal justice system. They allow the Crown and the accused to avoid the uncertainty, stress and legal costs associated with trials where the accused admits guilt and is not exercising his right to make full answer and defence. Resolutions … Continue Reading
As discussed in our previous post, the Supreme Court of Canada recently dramatically altered the framework applicable to the right to a criminal trial within a reasonable time in R. v. Jordan, 2016 SCC 27. This decision has already had a significant impact on the operation of criminal courts in Ontario.
In light of this decision, the Ontario Court of Appeal requested further submissions on two s. 11(b) appeals that had already been argued before the Court under the previous framework. On September 28, 2016, the Court released its decisions in R. v. Manasseri, 2016 ONCA … 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
For decades members of the judiciary have publicly raised concerns about the swelling length and complexity of criminal cases. In October 2005, Justice Michael Moldaver, then of the Ontario Court of Appeal, stated:
… Continue Reading
Am I worried? You bet I am. Long criminal trials are a cancer on our criminal justice system and they pose a threat to its very existence. You see, ladies and gentlemen, if the criminal justice system does not enjoy the support and respect of those whom it is meant to serve; if criminal trials are seen by the public as little more than interminable games; if
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
On McCarthy Tétrault LLP’s CyberLex blog, Carole Piovesan recently published a helpful discussion of the Alberta Court of Appeal’s decision in R v. Kelly, which will be of interest to readers of the Canadian Appeals Monitor.… Continue Reading
In “Burning Love”, Elvis pleaded with the Lord to have mercy. It was coming closer. The flames were lickin’ his body. He felt like he was slipping away. It was hard to breathe. His chest was a heavy. He was burning a hole where he lay. Burning a hole with burning love. In short, Elvis was just a hunk. A hunk of burning love.… Continue Reading
Does s. 24(1) of the Canadian Charter of Rights and Freedoms authorize a court of competent jurisdiction to award damages against the Crown for prosecutorial misconduct absent proof of malice?… 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
When is a fraudulent and negligent tortfeasor a “concurrent wrongdoer”? In Hunt & Hunt Lawyers v. Mitchell Morgan Nominees, the High Court of Australia has clarified the definition of a concurrent wrongdoer finding that liability can be apportioned under Part 4 of the Civil Liability Act where the damage caused by one or more concurrent wrongdoers is the same. The reasoning behind the apportionment of loss made by the court is instructive on the meaning of concurrent wrongdoing with potential application to other common law regimes.
As discussed in a previous post, the Supreme Court of Canada, in Canada v. Craig, overruled one of its own precedents, on the basis that there were compelling reasons indicating that the precedent’s interpretation of a provision of the Income Tax Act was incorrect. This interpretation was part of the precedent’s ratio decidendi and not obiter. At the same time, the Supreme Court in Craig held that the lower courts were bound by this interpretation and were not at liberty to depart from it.… Continue Reading
The Supreme Court of Canada has granted leave to appeal in a case that could significantly expand the jurisdiction of environmental regulators, and increase the costs of compliance for the private sector. Castonguay Blasting will require the Court to determine whether the discharge of contaminants into the natural environment must be reported even if it does not cause an adverse environmental effect, but only results in property damage.
… Continue Reading
The Supreme Court of Canada recently granted leave to appeal in a case involving the Autorités des marchés financiers (“AMF”), the Quebec regulator regarding financial products and services. The most important issue discussed by the Court of Appeal concerns the possibility or not for Sovereign, General Insurance Company (“Sovereign”) to use the reasonable diligence defense because it made a mixed error of law and fact.
… Continue Reading