Category: Supreme Court of Canada Page 4 of 22

By: Lisa Silver

 PDF Version: Adding Zora to the 1L Crime Syllabus

Case Commented On: R v Zora, 2020 SCC 14 (CanLII)

It is never too soon to start thinking about the fall semester – in fact, I keep a running list of changes to make to my syllabus throughout the year. But this year, it seems that the newest Supreme Court of Canada decision in R v Zora, 2020 SCC 14 (CanLII), is going to be added to my syllabus in more places than one. Zora is a rare decision in which the Court does much with so little. I do not say this flippantly but seriously. On the surface, the issue of whether the offence of failure to comply with a release order under section 145(3) of the Criminal Code, RSC 1985, c C-46, requires objective or subjective mens rea seems trite. In fact, any 1L student might be asked to do such an analysis on a law school exam. Yet, Zora soars as Justice Sheilah Martin expertly analyzes the issue holistically, humanely and firmly anchored in the Charter. In doing so, Justice Martin, on behalf of the entire Court, is weaving together a narrative based on the histories of all those accused who have carried their bail conditions like dead weight, from the moment of arrest and right up to the courtroom doors. In this post, I will share 5 reasons why I am adding Zora to my 1L Crime syllabus.

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By: Jennifer Koshan and Jonnette Watson Hamilton

PDF Version: The Adverse Impact of Mandatory Victim Surcharges and the Continuing Disappearance of Section 15 Equality Rights

Case Commented On: R v Boudreault, 2018 SCC 58 (CanLII)

It was just over one year ago that our former colleague Sheilah Martin was appointed to the Supreme Court of Canada (see our tribute on ABlawg). Justice Martin has now written her first decision for the Court, R v Boudreault, 2018 SCC 58 (CanLII) which was released in December 2018. The case concerns the constitutionality of victim surcharges, which are mandatory for persons who are discharged, plead guilty, or are found guilty of an offence under the Criminal Code, RSC 1985, c C-46, or the Controlled Drugs and Substances Act, SC 1996, c 19. Writing for a majority of the Court, Justice Martin’s judgment holds that these surcharges violate section 12 of the Canadian Charter of Rights and Freedoms, which protects against cruel and unusual punishment.

Our interest in this post is in exploring how equality infuses Justice Martin’s decision. Equality rights were not directly at issue in the case; rather, the constitutional challenge focused on section 12 as well as the guarantee of life, liberty and security of the person in section 7 of the Charter. Equality arguments were made by only two interveners (see here and here) and equality is mentioned explicitly only once in Justice Martin’s ruling (at para 28). Nevertheless, the discriminatory impact of the surcharge animates her entire judgment.

This leads us to reiterate a point we have made in previous writing (see e.g. here): section 15 of the Charter, the equality guarantee, is often overlooked in favour of other rights and freedoms as a result of the courts’ difficulties with and inconsistent treatment of equality rights. This has led to the analysis of other Charter rights – including section 7 and section 12 – that overlaps with equality, which muddies the content of these other rights. In turn, the lack of a robust equality jurisprudence perpetuates the tendency of parties and courts to avoid section 15. This is not necessarily a problem when other rights can be successfully invoked, as in this case, but it can be a problem when a successful claim depends on equality rights.

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