PDF version: Another kind of trial delay

Case considered: R. v. Asiala, 2010 ABQB 450

Earlier this year I wrote an ABlawg post discussing s. 11(b) of the Canadian Charter of Rights and Freedoms in relation to three Alberta cases decided in late 2009 (see A policy of delay? The cost of s.11 (b) Charter violations in Alberta). Section 11(b) of the Charter guarantees the right to be tried within a reasonable time. In my post, I noted that trial delays appeared to be a growing trend that should be closely monitored by the citizenry, particularly as they relate to government policy in allocating budgetary resources for judicial services. What I neglected to say is that sometimes delay has nothing to do with government policy, lack of judicial resources or even the tactical advantage gained by one or both sides in a case. On rare occasions delay is caused by the human element of the judicial system.

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Case Considered: Canada (Prime Minister) v. Khadr, 2010 FCA 199

The litigation saga of Omar Khadr continues. On July 22, 2010, the Federal Court of Appeal granted a stay pending appeal of the most recent order of the Federal Court after hearing the appeal by teleconference on July 16, 2010. (See Canada (Prime Minister) v. Khadr, 2010 FCA 199). For background on Khadr’s case, including a discussion of the Federal Court order at issue in the appeal, see my earlier ABlawg post, Maureen Duffy, The Third Time Is the Charm? The Ongoing Litigation Regarding Omar Khadr; see also Linda McKay-Panos, My Vote for R. v. Hape as a Significant Legal Case of the Decade.

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PDF version: The Third Time Is the Charm? The Ongoing Litigation Regarding Omar Khadr

Case considered: Khadr v. Canada (Prime Minister), 2010 FC 715.

Omar Khadr, perhaps the most controversial of the detainees at the U.S. naval base at Guantanamo Bay, Cuba, has won another round, in the Federal Court of Canada, in his ongoing quest to pressure the Government to seek to repatriate him to Canada. The Honourable Mr. Justice Zinn cited the “unique circumstances of this case” and entered a strongly worded judgment, finding that Khadr was entitled to “procedural fairness and natural justice” by the executive in the response to the most recent Supreme Court of Canada ruling in the case - Canada (Prime Minister) v. Khadr, 2010 SCC 3 [Khadr II].

Justice Zinn, finding the Government’s response to date to be lacking, laid out a number of specific mandates for the Government. He ordered the Government to advise Khadr and his attorneys, within seven days, of all “untried” remedies, which had the potential to cure or at least lessen the prior breach of Khadr’s Charter rights. He granted Khadr time to respond with his own list of potential remedies, and even went so far as to retain jurisdiction to resolve disputes and to impose his own remedies if the Government failed to do so in a reasonable time. Not surprisingly, the Government appealed Justice Zinn’s ruling, setting the stage for a possible third round of higher court rulings in this case.

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PDF version: Supreme Court of Canada Upholds Constitutionality of Publication Bans in Bail Hearings, Media Outlets Unhappy

Case Considered: Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, an appeal from the Courts of Appeal of Ontario (Toronto Star Newspapers Ltd. v. Canada, 2009 ONCA 59) and Alberta (R. v. White, 2008 ABCA 294).

The Supreme Court of Canada recently dealt with appeals from Ontario (Toronto Star Newspapers Ltd. v. Canada) and Alberta (R. v. White) wherein several media outlets challenged the constitutionality of s. 517 of the Criminal Code, R.S.C. 1985, c.C-46, which sets out when judges must impose a mandatory publication ban for evidence heard in bail proceedings. In the White case, the Alberta Court of Appeal had determined that while Criminal Code s. 517 violates freedom of expression under Charter s. 2(b), it can nevertheless be saved by Charter s. 1 as reasonable and justifiable in a free and democratic society (see my previous post on White).

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PDF version: Access to Justice, the Charter and Administrative Tribunals in Alberta: Who holds the Holy Grail?

Case considered: R. v. Conway, 2010 SCC 22

On June 11, 2010, the Supreme Court of Canada considered once again the jurisdiction of administrative tribunals to grant Charter remedies as “courts of competent jurisdiction” under section 24(1) of the Charter in R. v. Conway. This decision purports to broaden the power of administrative tribunals to award Charter remedies found in previous Supreme Court decisions by taking an “institutional” rather than “remedy by remedy” approach to the question of jurisdiction (at para. 23). However, Justice Rosalie Abella, writing for a unanimous Court, was also clear that a tribunal’s remedial jurisdiction under the Charter could be constrained by statute (at para. 22). Conway must therefore be read subject to Alberta’s Administrative Procedures and Jurisdiction Act, R.S.A. 2000, c. A-3.

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PDF version: Differential Treatment of Equality Law post-Kapp 

Case considered: Woodward v. Council of the Fort McMurray No. 468 First Nation, 2010 FC 337

There have been several posts on ABlawg concerning the Supreme Court’s most significant equality rights decision of late, R. v. Kapp, 2008 SCC 41. Jonnette Watson Hamilton nominated Kapp as the leading equality rights case of the 2000s. She and I have also written on the application of Kapp (or lack thereof) in cases such as Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9; Morrow v. Zhang, 2009 ABCA 215 (see also here); and Cunningham v. Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 239. We are hosting a continuing legal education session on Litigating Equality Claims Post-Kapp on June 15, 2010, and hope to have a good turnout of equality rights litigators, judges and NGOs to discuss the implications of Kapp (note: the last date to register is June 1, 2010). The need for this session is real because, even two years post-Kapp, some lower courts continue to ignore the ruling in that case. The latest example is a decision of Justice James O’Reilly of the Federal Court in a case involving voting rights of non-resident members of the Fort McMurray First Nation in Woodward v. Council of the Fort McMurray No.468 First Nation.

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Cases considered: R. v. Legare, 2009 SCC 56; R. v. Morelli, 2010 SCC 8

PDF version: From Legare to Morelli: the prioritization of privacy

A few months ago, the Supreme Court of Canada ordered the retrial of an Alberta man acquitted on the criminal offence of luring a child contrary to s.172.1(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46 in R. v. Legare, 2009 SCC 56. Writing for a unanimous Court, Justice Morris Fish rejected the trial judge’s unduly restrictive construction of the offence. Instead, the offence was classified as “inchoate” (at para. 25), making it unnecessary to recast the elements into the traditional compartments of mens rea and actus reus. The Court held that the offence of luring requires proof that the accused had the subjective intention to facilitate (not to commit) a secondary offence and that intention need not be objectively capable of facilitating the offence. The judgment gave teeth to the remedial provision designed to combat the risks of sexual exploitation of children through the Internet. Engaging in two sexually explicit chats with a 12 year old girl may be enough to establish that the accused communicated by computer for the purpose of facilitating sexual touching.

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Case considered: Cunningham v. Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 239, leave to appeal granted March 11, 2010

PDF version: Leave to appeal granted by the SCC in Métis Status Case

On March 11, 2010, the Supreme Court of Canada (Justices McLachlin, Abella and Rothstein) granted leave to appeal to the Alberta government in Her Majesty the Queen in Right of Alberta (Minister of Aboriginal Affairs and Northern Development) and the Registrar et al. v. Barbara Cunningham et al. Dealing with the relationship between Métis and Indian status under the Métis Settlements Act, the case may take on even greater significance in light of Bill C-3, the Gender Equity in Indian Registration Act, introduced in the House of Commons on March 12, 2010.

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Case Considered: Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, 2009 SCC 53

PDF version:  The Rubber Hits the Road on Provincial Jurisdiction over Transportation Undertakings

The Supreme Court of Canada, in a 6-3 decision late last year, came down squarely in favour of provincial jurisdiction over transportation undertakings such as freight forwarding companies not themselves involved in interprovincial transportation. Shippers do not become subject to federal jurisdiction under s.92(10)(a) of the Constitution Act, 1867 merely by contracting for interprovincial transportation of goods, even if the company’s service includes delivery of goods in a receiving province. A recent post on The Court considered the implications of this case for division of powers analysis; my post will consider the Court’s interpretive approach in a modern natural resources context.

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Cases considered: R. v. Rajasansi, 2009 ABQB 674; R. v. Klein, 2009 ABPC 381; R. v. Nguyen, 2009 ABPC 384.

PDF version: A policy of delay? The cost of s.11(b) Charter violations in Alberta

Back in December, CBC News reported on the stay of proceedings in the trial against Kulwinder Singh Rajasansi and Wesley Keane Sinclair. The two men were charged with sexually assaulting a young woman in October, 2004. The reason for the stay? It took the case 35 months to get to trial - that’s one month shy of 3 years.

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