The Supreme Court of Canada (SCC) released a decision on November 2, 2017 dismissing a novel Aboriginal freedom of religion Charter claim that was raised in opposition to a ski resort development in British Columbia: Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 (Ktunaxa). This is a significant case as it is the first time the SCC has been asked to consider an Aboriginal spiritual rights claim and the protections that may be afforded to it under s. 2(a) of the Charter in addition to s. 35 of the … Continue Reading
On September 15, 2017, the B.C. Court of Appeal rejected a challenge by the Trial Lawyers Association of British Columbia (“TLA”) to the constitutionality of legislation requiring civil litigants opting for a jury trial to pay the fees and expenses of the jury and jury process. TLA 2017 holds that provinces may impose such fees without interfering with the core jurisdiction of the superior courts protected by s. 96 of the Constitution Act, 1867.… 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
This was a busy week at the Supreme Court of Canada, with numerous developments likely to be of interest to Canadian businesses.
A very significant labour law appeal — Saskatchewan Federation of Labour v. Saskatchewan, on appeal from the Saskatchewan Court of Appeal — was argued on May 16, 2014. At issue was a Charter challenge to two pieces of provincial legislation. The statutes had, respectively, (i) introduced restrictions on the ability of public sector workers who provide essential services to engage in strike activity, and (ii) changed existing provincial labour legislation to make it more difficult for unions … Continue Reading
The Supreme Court of Canada released one judgment, and denied leave to appeal in three other cases, likely to be of interest to Canadian business this week.
In Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, a unanimous Court issued a declaration of invalidity (suspended for 12 months) applicable to the Alberta Personal Information Protection Act (the “PIPA”). It was determined that the PIPA‘s prohibition on striking union members videotaping and photographing individuals crossing a picket line interfered with the union’s freedom of expression rights under s-s. … Continue Reading
The Supreme Court of Canada recently formulated new rules for computer searches by police, acknowledging that the traditional legal framework was inadequate to protect the privacy rights of individuals in their digital life. In R. v. Vu, 2013 SCC 60, the Court said that a police search of a computer now requires prior authorization in the form of a specific warrant.
The police had been tipped about electricity theft at a residence suspected of being used to cultivate marijuana. They obtained a warrant to search the residence for evidence of such theft, including information identifying the owners and/or … Continue Reading
Anyone who has watched Law and Order knows that the police, both here and in the U.S., do not need a warrant to rifle through someone’s curbside recycling bin. This is because that person has abandoned their privacy interest in the contents of the bin. Does the same hold true for items in someone’s computer desktop recycling bin?
Apparently not, according to the B.C. Court of Appeal in R. v. McNeice, 2013 BCCA 98. While putting something by the curb in the real world indicates an abandonment of a privacy interest, the B.C. Court of Appeal has held that … Continue Reading
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