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A Look Down the Road Taken by the Supreme Court of Canada in R v Mills

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On May 8, 2019

In Constitutional, Criminal

By: Lisa Silver

PDF Version: A Look Down the Road Taken by the Supreme Court of Canada in R v Mills

Case Commented On: R v Mills, 2019 SCC 22

Perhaps we, in the legal world, should not have been surprised by R v Mills, 2019 SCC 22, the most recent decision on privacy and the application of that concept in the s. 8 Charter regime. When it comes to Supreme Court decisions, we tend to dispense with the facts in favour of the principles, but Mills reminds us, facts do still matter in our highest court. Factually, pragmatically, and contextually, we understand that the investigative technique used in Mills simply needs to work. But in the name of principle, precedence, and visionary reach, Mills leaves us wondering. To throw even more dust into the eyes, overlaid on the decision is confusion. The seven-panel decision is fractured, leaving us to count on our fingers who agrees with who to manage some sort of majority decision. In the end, the numeric tally does not really matter. This is a new kind of Supreme Court where everyone agrees in the outcome but how they get there leads us onto the road “less travelled” or to update the metaphor, leads us through the web of internet connections less surfed. Or does it? Mills may be surprising but not unpredictable. It may also be just another decision exploring the reach of privacy in our everyday world and therefore part of the narrative, not the last word.

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Turning a Blind Eye? The Scope of the Charter Right to a Representative Jury

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On May 3, 2019

In Aboriginal, Constitutional, Criminal

By: Amy Matychuk

PDF Version: Turning a Blind Eye? The Scope of the Charter Right to a Representative Jury

Case Commented On: R v Newborn, 2019 ABCA 123 (CanLII)

In R v Newborn, Justices Frans Slatter, Ritu Khullar, and Barbara Lea Veldhuis of the Alberta Court of Appeal (ABCA) dismissed an argument from the appellant (the accused) that “the array from which his jury was selected was constitutionally flawed because it disproportionately excluded [A]boriginal citizens” (Newborn ABCA, at para 1). It also dismissed his argument that inadmissible expert evidence was allowed at the trial. However, this post will focus on the right to a representative jury as defined in the Supreme Court’s decision in R v Kokopenace, 2015 SCC 28 (CanLII), R v Newborn’s application of Kokopenace, and the appropriate scope of the state’s obligations under Charter s 11.

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Administrative Segregation and the Charter of Rights and Freedoms

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On March 4, 2019

In Constitutional, Criminal

By: Myrna El Fakhry Tuttle

PDF Version: Administrative Segregation and the Charter of Rights and Freedoms

Case Commented On: R v Prystay, 2019 ABQB 8 (CanLII)

On January 4, 2019, Madam Justice Dawn Pentelechuk found that Mr. Ryan Prystay’s lengthy stay in administrative segregation at the Edmonton Remand Centre breached section 12 of the Charter. Consequently, she granted him enhanced credit of 3.75 days for each day spent in administrative segregation.

Administrative segregation is used in remand centres to keep an inmate away from the general population for safety or security reasons. It is not intended to be used as a punishment and can be indefinite, while disciplinary segregation is imposed as a penalty and has to be for a specified period of time.

Unlike in disciplinary segregation, inmates in administrative segregation have the same rights and privileges as other inmates, however, the operational reality is that one’s experience in either form of segregation is drastically different from that of inmates in the general population (at para 27). Inmates in either form of segregation are kept in a cell alone for 23 hours a day. They have two half-hour blocks outside of their cell during each 24 hour period where they can shower, exercise, watch television or use the phone in the “fresh air” room. Inmates stay alone during those activities. Administrative segregation inmates may have visits via CCTV (closed circuit television) (at paras 28-29).

On October 16, 2018, the Honourable Ralph Goodale, Minister of Public Safety and Emergency Preparedness, introduced in the House of Commons Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act. The purpose of the bill is to strengthen the federal correctional system in a number of ways including ending administrative segregation and disciplinary segregation and creating “structured intervention units.”

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Lessons from Redwater: Discard the AbitibiBowater Test and Legislate Super Priority for the Regulator

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On March 1, 2019

In Bankruptcy and Insolvency, Constitutional, Oil & Gas

By: Jassmine Girgis

PDF Version: Lessons from Redwater: Discard the AbitibiBowater Test and Legislate Super Priority for the Regulator

Case Commented On: Orphan Well Association v Grant Thornton Ltd, 2019 SCC 5 (CanLII)

Environmental cleanup costs are a natural consequence of operating in the oil and gas industry. Provincial regulations ensure these costs are borne by the company responsible for them, and these regulations work if that company is solvent. An insolvent company, however, cannot bear the costs of outstanding environmental orders, which leaves those costs to the company’s creditors or to the public.

The goal should be, and fairness dictates, that the debtor always covers the cost, regardless of its solvency, but that requires amending the governing legislation, preferably to give the regulator (in this case, the Alberta Energy Regulator (Regulator), and the equivalent regulators in other provinces) a super priority. Knowing the Regulator has a super priority in a bankruptcy will compel the adjusting creditors to modify their agreements ex ante, ensuring, in turn, that companies comply with regulations and have enough capital to cover environmental costs as they arise. This solution is better than our current system, in which creditors must wait for a court to apply the three-part test from Newfoundland and Labrador v AbitibiBowater Inc, 2012 SCC 67 (CanLII) (AbitibiBowater test) to determine who has priority, potentially leaving them to deal with the consequences ex post.

On a matter this important and this costly, a matter that has notable public policy considerations and far-reaching implications for private parties, both sufficient environmental protection as well as certainty in adherence to the legislated priorities, must be the ultimate goals. The Bankruptcy and Insolvency Act, RSC 1985, c B-3 (“BIA”) does not currently provide enough environmental protection, which may compel courts to compensate through the AbitibiBowater test. It is hard to predict the outcome of the test and, depending on its application to a given set of facts, it undermines the BIA priority scheme. Throughout the proceedings of Orphan Well Association v Grant Thornton Ltd, 2019 SCC 5 (CanLII) (commonly known as the Redwater case), in three levels of court, there were five judgments. Eleven judges applied the same test and six of them ruled in favour of the Regulator, while five ruled in favor of the secured creditor. This much disagreement over one set of facts should indicate that these issues should not be handled by the courts through the application of the AbitibiBowater test. The required certainty in this area must come from Parliament by way of legislative amendment to clarify a super priority charge in favour of the Regulator in the BIA.

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What is the Concern with Recognizing GHGs as a Matter of National Concern?

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On February 13, 2019

In Constitutional, Environmental

By: Martin Olszynski

PDF Version: What is the Concern with Recognizing GHGs as a Matter of National Concern?

Matter Commented On: Reference re: Greenhouse Gas Pollution Pricing Act 

All eyes are on Saskatchewan this week, as the Saskatchewan Court of Appeal prepares to hear arguments in the federal greenhouse gas pricing reference. To most observers, this reference may appear to be simply about the constitutionality – or not – of the federal government’s greenhouse gas (GHG) pricing regime set out in the Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, s 186 (GGPPA). As further set out in this post, however, for constitutional and environmental lawyers and scholars, this reference is less about whether the federal government can regulate GHGs but rather the basis upon which it can do so.

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