Category: Supreme Court of Canada Page 11 of 23

The Forest of Delays

On July 6, 2016

In Constitutional, Supreme Court of Canada

By: Drew Yewchuk

Case Commented On: R v Vassell, 2016 SCC 26 (CanLII)

Section 11(b) of the Canadian Charter of Rights and Freedoms, guarantees that any person charged with an offence has the right to be tried within a reasonable time. In R v Vassell 2016 SCC 26 (CanLII) the Supreme Court of Canada reiterated that the Crown is responsible to deliver on this right. The approach that had been developing in Alberta courts was that the right would only be violated where the actions of the Crown caused excessive delay – institutional delays and delays caused by anything other than Crown actions were considered neutral or less important and did not trigger section 11(b). The Supreme Court in Vassell rejects this approach: the Crown is responsible for bringing the accused to trial within a reasonable time and therefore for all delays, regardless of their cause, trigger section 11(b) unless the accused explicitly or implicitly waives their right to be tried within a reasonable time.

On the DLW Decision and the Meaning of Modernity

By Lisa Silver

On July 4, 2016

In Criminal, Statutory Interpretation, Supreme Court of Canada

By: Lisa Silver

PDF Version: On the DLW Decision and the Meaning of Modernity

Case Commented On: R v DLW, 2016 SCC 22 (CanLII)

Despite our common law system, statute law remains a key source of law in Canada. Its importance cannot be underestimated as lawmakers rely on legislation to implement policy on various social and economic issues. In many ways, legislation is reflective of who we are as a society and serves to reinforce our collective values. No other piece of legislation in Canada exemplifies this more than our Criminal Code, RSC 1985, c C-46. Contained in this piece of legislation is conduct we deem as a society to be so abhorrent, so contrary to who we are, that we will punish those who commit these prohibited acts, often through a loss of liberty. Although the concept of codification relieves us from speculating on the substance of criminal behaviour, it carries with it the mystique of interpreting or discerning Parliamentary intent in creating those crimes. As a result, statutory interpretation is often the main issue in criminal cases as judges wrestle with words, meanings, and intentions. This process is vital in criminal law, where a turn of phrase can mean the difference between guilt or innocence. The difficulty lies in dealing with crimes that carry centuries of established meaning, such as murder, assault, and theft. Yet, the crimes so interpreted must remain relevant. In this blog post, I will explore certain aspects of the DLW judgment, 2016 SCC 22, the most recent Supreme Court of Canada decision employing statutory interpretation principles, on the crime of bestiality (section 160 of the Criminal Code). Here, the Court enters into an age old process of interpretation yet does so, seemingly, in the name of modernity. This case highlights the inherent problems in discerning or interpreting value-laden legislation as it then was and then, ultimately, as it needs to be.

From Telecoms to Pipelines: Good News from the Supreme Court of Canada for Pipeline Builders

By Nigel Bankes

On June 24, 2016

In Constitutional, Oil & Gas, Supreme Court of Canada

By: Nigel Bankes

PDF Version: From Telecoms to Pipelines: Good News from the Supreme Court of Canada for Pipeline Builders

Case commented on: Rogers Communications Inc v Châteauguay (City), 2016 SCC 23 (CanLII)

In this decision the Supreme Court of Canada (unanimous in the result) concluded that the actions of the City of Châteauguay in creating a reserve as to certain real property were directed at frustrating Rogers’ efforts to install an antenna system on property located within the City and were therefore unconstitutional as a measure dealing with the siting of telecommunications infrastructure. The majority found that Châteauguay’s notice of reserve was ultra vires (but also went on to offer an analysis that would have rendered the reserve inapplicable on the basis of the doctrine of interjurisdictional immunity (IJI)). The minority (Justice Gascon) preferred to find for Rogers solely on the basis of IJI.

While this is no doubt an important decision for the telecommunications industry it will almost certainly prove to be more important for the more tightly networked elements of the energy sector and in particular oil and gas pipelines given the highly contentious nature of current proposals to construct new pipelines or expand existing pipelines.

Five Million Dollars Versus One Night in Jail

By Drew Yewchuk

On June 1, 2016

In Constitutional, Supreme Court of Canada

By: Drew Yewchuk

PDF Version: Five Million Dollars Versus One Night in Jail

Case Commented On: R v Peers, 2015 ABQB 129 (CanLII), R v Peers, 2015 ABCA 407 (CanLII), leave to appeal granted May 26, 2016

On May 26, 2016 the Supreme Court of Canada (SCC) granted leave to appeal from the decision of the Alberta Court of Appeal in Peers. The three appellants are all charged with a variety of offences under section194 of the Securities Act, RSA 2000, c S-4, which provides for a maximum penalty of “a fine of not more than $5 000 000 or to imprisonment for a term of not more than 5 years less a day, or to both”. The basis of their appeal is that section11(f) of the Canadian Charter of Rights and Freedoms — which guarantees “the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment” — entitles them to a jury trial, because a penalty of five years less a day of imprisonment and a $5 000 000 fine is “a more severe punishment” than “imprisonment for five years”. This appeal raises a constitutional question left open 27 years ago in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927 (CanLII) (Irwin Toy): can some personal economic rights be protected by the section7 Charter guarantee of “life, liberty, and security of the person?”

Good Kid, M.A.D.D. City: Seeking Proportionality in Drunk Driving Sentencing

By Joshua Sealy-Harrington

On May 27, 2016

In Criminal, Supreme Court of Canada

By: Joshua Sealy-Harrington and Joe McGrade

PDF Version: Good Kid, M.A.D.D. City: Seeking Proportionality in Drunk Driving Sentencing

Cases Commented On: R v Lacasse, 2015 SCC 64; R v Sargent, 2016 ABCA 104

Constantly drinking and drive. Hit the powder then watch this flame that arrive in his eye. […] I live inside the belly of the rough Compton, USA. Made me an angel on angel dust.

–good kid m.A.A.d. city (Kendrick Lamar, 2012)

Despite the Supreme Court’s recent consideration of the law governing sentencing appeals, such appeals remain a controversial area of legal analysis for our appellate courts. This persisting ambiguity, which is rooted in how the law is applied, rather than the law itself, motivates us to revisit the Court’s leading decision in R v Lacasse. This comment summarizes the majority and dissenting judgments in Lacasse, notes the ambiguity left by the disagreement between those judgments, outlines a recent Alberta Court of Appeal decision – R v Sargent, 2016 ABCA 104 – which demonstrates that ambiguity, and discusses the significant policy consequences associated with the Supreme Court’s unanimous holding that it is appropriate to more severely punish individuals with sympathetic mitigating factors (good kids) when they reside in communities with high crime rates (mad cities).