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Category: Supreme Court of Canada Page 17 of 23

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

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On July 22, 2010

In Constitutional, Remedies, Supreme Court of Canada

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

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On June 23, 2010

In Constitutional, Supreme Court of Canada

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

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On June 15, 2010

In Administrative Law, Constitutional, Supreme Court of Canada

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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Much Ado about Little: The Supreme Court’s Decision in Yugraneft Corp. v. Rexx Management Corp.

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On June 4, 2010

In Arbitration, Corporate / Commercial, Supreme Court of Canada

PDF version: Much Ado about Little: The Supreme Court’s Decision in Yugraneft Corp. v. Rexx Management Corp.

Case considered: Yugraneft Corporation v. Rexx Management Corporation, 2010 SCC 19

An Alberta company, Rexx Management Corporation, was ordered to pay an almost $1 million US arbitration award in favour of a Russian company, Yugraneft Corporation. Yugraneft waited more than three years before applying to the Alberta Court of Queen’s Bench for recognition and enforcement of that arbitration award. When Yugraneft failed to gain recognition from the Court of Queen’s Bench, it appealed to the Alberta Court of Appeal and, when unsuccessful again, was granted leave to appeal and did appeal to the Supreme Court of Canada. Thirteen judges have now heard the case and all thirteen judges have agreed: the two-year limitation period in section 3 of Alberta’s Limitations Act applied to Yugraneft’s application for recognition and enforcement and thus Yugraneft acted too late. With that degree of unanimity, one has to wonder what all the fuss in the international commercial arbitration community has been about. The case was monitored closely as it wound its way through the courts and several arbitration institutions intervened at the Supreme Court of Canada.

In this post, after briefly setting out the facts and procedural history, I will focus on one of the issues dealt with by the Supreme Court, the threshold issue. The key decision by all the levels of court that considered the matter was the decision that domestic legislation imposing any kind of limitation period was applicable. I will then deal with the question of which limitation period: ten years, six years or two years? After this discussion of the case itself, I will comment on two matters. The first is the question of whether this case really is a case of public importance. The second is speculation about what action proponents of international commercial arbitration might take now, following their loss in the Supreme Court.

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Maintaining space for autonomy? Environmental assessments in the context of aboriginal land claims agreements

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On May 28, 2010

In Aboriginal, Environmental, Supreme Court of Canada

PDF version: Maintaining space for autonomy? Environmental assessments in the context of aboriginal land claims agreements

Case considered: Quebec (Attorney General) v. Moses, 2010 SCC 17

This is the first decision of the Supreme Court of Canada to examine a modern land claims agreement; in this case the James Bay and Northern Quebec Land Claim Agreement (JBNQA or the Agreement) between Canada, Quebec and the James Bay Cree and the Northern Quebec Inuit. The argument in the case happens to relate to the nature of the environmental assessment process that should be applied to a particular project but there is a much broader issue at stake which is the capacity of federal and provincial governments to continue to make and apply laws within the territory covered by the Agreement to matters “covered” by the terms of the Agreement. By adopting an artificial distinction between that which is covered by the Agreement and that which falls outside it, the majority recognize that governments have retained significant authority to “supplement” the terms of the Agreement. But the government’s authority to do so is not completely unlimited since the majority also recognizes that such authority must be exercised consistently with the Crown’s duty to consult. By contrast, the dissent takes a more robust view of the coverage of the land claims agreement and as a result limits the capacity of governments to create a parallel normative world that sidelines negotiated arrangements for autonomy.

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