Category Archives: Supreme Court of Canada

Interpreting Section 15(2) of the Charter: LEAF’s Intervention in Alberta (Minister of Aboriginal Affairs and Northern Development) v Cunningham

By: Jonnette Watson Hamilton

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Cases Commented On: Her Majesty the Queen in Right of Alberta (Minister of Aboriginal Affairs and Northern Development), et al. v Barbara Cunningham, et al. (Alberta) (Civil) (By Leave) Case number 33340, on appeal from Cunningham v Alberta (Aboriginal Affairs and Northern Development), 2009 ABCA 239

The Supreme Court of Canada is scheduled to hear the appeal of the Alberta government in Alberta (Minister of Aboriginal Affairs and Northern Development) v Cunningham on Thursday, December 16, 2010. Cunningham will be the first case in which the Supreme Court considers the application of section 15(2) of the Charter since that Court gave independent meaning to section 15(2) in R v Kapp, 2008 SCC 41 and the first case in which the Court must consider the possible application of section 15(2) when the challenge is on the basis of under-inclusiveness. This comment is based on my experience serving on the Women’s Legal Education and Action Fund (LEAF) case subcommittee in Cunningham, the factum filed by LEAF, and, to a much lesser extent and only to offer a contrast, the facta of the Appellants and the Attorney General of Ontario.

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Little Salmon and the juridical nature of the duty to consult and accommodate

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Case commented on: Beckman v Little/Salmon Carmacks First Nation, 2010 SCC 53

This is the first decision of the Supreme Court of Canada to deal head on with the relationship between the terms of a constitutionally protected land claims agreement (LCA) and the duty to consult and accommodate. The Court holds that the terms of an LCA do not exhaust the Crown’s duty to consult, or, to put it another way, an LCA is not a complete code but is embedded in the general legal system embracing both constitutional law norms and administrative law norms. This means that the Crown may have consultation obligations that are additive to those found in the text of an LCA. However, the majority articulates a narrow view of the content of the duty to consult and thus it was easy for the Court to find that the Crown — here the Government of Yukon (YTG) — had satisfied its obligations. In my view the content of the duty to consult articulated by the Court in this case is no greater than that which would be provided by the application of standard principles of administrative law. This impoverished view of the duty to consult is hardly likely to contribute to the constitutional goal of inter-societal reconciliation.

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Domestic Violence and Provocation: The Door Remains Open

PDF version: Domestic Violence and Provocation: The Door Remains Open 

Case Considered: R. v. Tran, 2010 SCC 58

The Supreme Court’s most recent decision, R. v. Tran, is an Alberta case I commented on at the Court of Appeal level. Tran involves a man who killed his estranged wife’s lover and slashed his wife’s face, causing her permanent injury. The issue in this case was whether there was provocation arising from the fact that the accused found his wife in bed with her lover, such that he should be convicted of manslaughter rather than second degree murder. In a decision authored by Justice Louise Charron, the Supreme Court agreed with the Alberta Court of Appeal that provocation was not made out in the circumstances of the case, and upheld the accused’s conviction for murder. While this is a positive outcome, in my view the Court did not go far enough in contextualizing this case as one involving domestic violence, nor did it foreclose future uses of the provocation defence in this context.

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

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

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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