ABLawg - - Page 129

Case Commented On: Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26 (CanLII)

The Supreme Court of Canada has reversed the Alberta Court of Appeal decision in Wall v Judicial Committee of the Highwood Congregation of Jehovah’s Witnesses, 2016 ABCA 255 (CanLII) which ruled the Highwood Congregation decision to expel one of its members was subject to judicial review on the basis of an alleged breach of procedural fairness. In this unanimous judgment, the Supreme Court ruled that the Court of Appeal stretched the reach of judicial review too far in holding that this mechanism of judicial oversight applies to a decision of a non-state actor.

A Superior Court’s Inherent Jurisdiction to Infringe the Charter Right to a Jury Trial?

By Admin

On June 8, 2018

In Criminal, Human Rights

By: Admin

PDF Version: A Superior Court’s Inherent Jurisdiction to Infringe the Charter Right to a Jury Trial?

Case Commented On: R v Boisjoli, 2018 ABQB 410 (CanLII)

The decision of Justice Eldon J. Simpson in R v Boisjoli is unusual. On April 5, 2018, the Crown and the accused, Mr. Boisjoli, appeared before Justice Simpson to select jurors for a trial scheduled for the week of April 9. The charge (or one of the charges) was one of intimidation of a justice system participant, contrary to section 423.1 of the Criminal Code, RSC 1985, c C-46. However, no jury was selected on April 5. Instead, Justice Simpson, by his own motion and under the claimed authority of the court’s inherent jurisdiction, ordered that Mr. Boisjoli’s trial go ahead as a trial by judge alone. Justice Simpson’s order was made because of the anticipated behavior of Mr. Boisjoli, i.e. that he intended to “artificially frustrate the jury selection process” (at para 24) and “disrupt and sabotage” the jury trial (at para 37). There was only a brief mention of Mr. Boisjoli’s Charter right to a trial by jury, and no Charter analysis. Instead, Justice Simpson relied upon an analogy to a section in the Criminal Code that equated an accused’s non-appearance with a waiver of a jury trial.

Duty to Consult in the Bigstone Pipeline Case: A Northern Gateway Sequel and TMX Prequel?

By David V Wright

On June 6, 2018

In Aboriginal, Energy

By: David. V Wright

PDF Version: Duty to Consult in the Bigstone Pipeline Case: A Northern Gateway Sequel and TMX Prequel?

Case commented on: Bigstone Cree Nation v. Nova Gas Transmission Ltd., 2018 FCA 89

While all eyes are on the Trans Mountain Expansion (TMX) pipeline saga, especially the political spats and constitutional law dimensions (clear as much of that law may be), the Federal Court of Appeal (FCA) released a decision in early May that is directly on-point with respect to legal challenges brought by Indigenous groups against the TMX project approval (consolidated by the FCA into one case). Bigstone Cree Nation v. Nova Gas Transmission Ltd. engages the same legislative scheme as the court challenges against the Northern Gateway Project (NGP), which was decided by the Court in Gitxaala Nation v. Canada, 2016 FCA 187, and at issue in TMX – i.e. the post-2012 integrated NEB Act – CEAA 2012 review and approval regime. This post has two parts. In the first part, I focus on a few notable points of law that the FCA reiterated in Bigstone. In the second part, I move on to discuss how this appears to be an important duty to consult trilogy in the making, with this latest case providing hints toward the FCA upholding the TMX Order in Council (OIC) and Certificate of Public Convenience and Necessity (CPCN or certificate). The FCA’s TMX decision is due out soon.

Criminal Law Rules! The Contextual Use of Criminal Law Principles and Charter Values in Groia v The Law Society of Upper Canada

By Lisa Silver

On June 5, 2018

In Criminal, Ethics and the Legal Profession

By: Lisa Ann Silver

PDF Version: Criminal Law Rules! The Contextual Use of Criminal Law Principles and Charter Values in Groia v The Law Society of Upper Canada

Case Commented On: Groia v The Law Soceity of Upper Canada, 2018 SCC 27

The hot off the presses decision in Groia v The Law Society of Upper Canada confirms my belief that criminal law matters in all areas of law. Criminal law principles are foundational and have a reach beyond criminal case law. This is most evident in the rules of evidence where those principles do not distinguish between areas of law. Evidence is evidence no matter the context. It is the courtroom that gives the rules of evidence its perspective, not any particular area of law. There is a caveat to that proposition: some evidential rules blossom and find deeper meaning in the criminal law context where Charter rights provide a signpost to evidential rulings. In many ways, Groia borrows from the texture of criminal law, not only in the specific areas I will touch upon in this blog posting. The concept of fearless and resolute advocacy, peppered throughout the Groia decision, defines the criminal defence lawyer’s duty to her client. A client who faces the ultimate sanction of our justice system, a potential loss of liberty and societal condemnation. In some ways, the fact that Justice Moldaver, who authored the majority decision in Groia and began his litigation career as a criminal lawyer, references criminal law principles in the Groia judgment should not surprise anyone. Yet, to see not only outright usage of criminal principles but to also detect an almost metaphysical reliance on criminal law analysis brings a welcome richness to this decision. It also helps that the case is situated in a quasi-criminal law environment as a prosecution by the securities commission. A prosecution with a decidedly criminal law bent as Jay Naster started his career as a Crown prosecutor.

Columbia River Treaty Negotiations to Commence

By Nigel Bankes

On May 25, 2018

In Aboriginal, Environmental

By: Nigel Bankes

PDF Version: Columbia River Treaty Negotiations to Commence

Announcements commented on: (1) Global Affairs Canada, Canada and United States launch negotiations to renew Columbia River Treaty, May 22, 2018, (2) US Department of State, Launching negotiations to modernize the Columbia River Treaty regime, May 22, 2018, (3) British Columbia, Statement on Upcoming Treaty Negotiations, May 22, 2018, (4) Okanagan Nation Alliance, Shuswap Nation Council and Ktunaxa Nation Council, Canada Excludes Indigenous First Nations form International Columbia River Treaty Re-Negotiation, May 23, 2018.

The Governments of Canada and the United States have announced that they will begin negotiations (May 29 and 30, 2018, Washington DC) to “modernize” the Columbia River Treaty. For background on this issue see my previous post here. British Columbia and three First Nation groups have also issued press releases.

Judicial Review is about the Legality of State Decision-Making

A Superior Court’s Inherent Jurisdiction to Infringe the Charter Right to a Jury Trial?

Duty to Consult in the Bigstone Pipeline Case: A Northern Gateway Sequel and TMX Prequel?

Criminal Law Rules! The Contextual Use of Criminal Law Principles and Charter Values in Groia v The Law Society of Upper Canada

Columbia River Treaty Negotiations to Commence