Legal Feeds Blog
This week, the Supreme Court of Canada will hear four appeals, including the hugely important 16-year-old challenge of the late Harry Daniels, a Métis leader who sought a declaration that Métis and non-status aboriginals were “Indians” for constitutional purposes. The court will also hear a couple of cases on institutional delay and the right to be tried within a reasonable time.
Oct. 7 – British Columbia – Jordan v. R.
Charter of Rights: The applicant was charged with drug trafficking offences in 2008 related to a “dial-a-dope” operation selling cocaine and heroin. In September 2012, he applied for a judicial stay of proceedings, arguing the 32-month delay had violated his Charter right to be tried within a reasonable time. The Crown blamed the problem on “institutional delay.” The SCC will review how these kinds of delays should be weighed in determining stay applications.
Read the British Columbia Court of Appeal’s decision
Related news stories:
Four years later, couple finally faces drug trial, Surrey Now
Oct. 7 – Ontario – R. v. Williamson
Charter of Rights: The respondent, a former teacher, was charged with sexual offences against a young boy committed more than 30 years ago. He was arrested in January 2009. As a result of numerous delays, the trial by jury did not take place until December 2011. The respondent was convicted, but the verdict was thrown out at the Ontario Court of Appeal, which ruled that the delay violated the respondent’s Charter rights. The SCC will review whether the appeal court erred in its assessment, given that the respondent was out on bail at the time and still being paid as a teacher under suspension. A publication ban is in place.
Read the Ontario Court of Appeal’s decision
Related news stories:
Ex-teacher gets four years in prison for molestation, Kingston Whig-Standard
Teacher convicted of sodomizing 12-year-old 50 times has conviction thrown out, The Globe and Mail
Oct. 8 – Federal – Daniels v. R.
Constitutional law: Métis leader Harry Daniels launched a constitutional challenge in 1999 against the federal government’s exclusion of Métis and non-status Indians from its definition of the term “Indian” as it applies to rights and obligations under the Constitution. Daniels sought a judicial declaration that Métis and non-status Indians are, in fact, “Indian,” and that the Crown owes the same obligations to them. The challenge succeeded at the Federal Court but was limited only to Métis people at the Federal Court of Appeal, which determined that non-status Indians should be assessed on a case-by-case basis. The SCC will determine whether the appeal court erred in limiting the declaration.
Read the Federal Court of Appeal’s decision
Who are ‘Indians’ within Parliament’s legislative authority and why does it matter? canadianlawyermag.com
Oct. 9 – Quebec – Rogers Communications v. Châteauguay
Constitutional law: Rogers Communications sent the city of Châteauguay notice that it intended to build a cellphone tower at a particular location. The city issued a construction permit, but when citizens mobilized against the project, it offered another location. Rogers, however, opted for the first location. The city then issued a notice of land reserve. At trial, Rogers argued the city’s actions amounted to abuse of authority and interference with federal jurisdiction over telecommunications. The appeal court decided the city did not overstep its constitutional powers. The SCC will review the powers of municipalities over construction of telecom towers.
Read the Quebec Court of Appeal’s decision
With hundreds of poor or unwell people already being turned away for Legal Aid funding in Alberta, the problem is about to get more dire as the stop-gap Missing Advocate Project will be terminated on Nov. 1.
|'The problem is that access to justice has to be seen as a human right like health care or water,' says Anthony Moustacalis.|
They are calling on the ministries of Justice and the Attorney General and the province’s recently elected NDP government for better funding.
“Unfortunately, the effect on access to justice and the efficient administration of our court system will be obvious and immediate,” the Oct. 1 release states. “The demand for legal services for poor and handicapped people in Alberta has increased dramatically over the past decade. Legal Aid Alberta has now been starved to the point where the working poor are routinely turned away as ineligible.”
“The Province of Ontario has at least recognized the historical underfunding [of legal aid] so we’re faring better here; it’s commendable, but long overdue and unfortunately it’s trying to remedy a situation that’s 25 years old,” says CLA president and Toronto-based defence lawyer Anthony Moustacalis. “It’s a country-wide problem and it’s acute.”
Because of the economic downturn and funding struggles for legal aid in Alberta, the Missing Advocate Project was created a little more than a year ago by the legal associations to ensure people had proper representation and advice within reasonable time. In that time, the project has served about 900 clients.
“The many lawyers involved in providing this service to the public have done so without remuneration and often at considerable expense to themselves and, at times, their families,” the release states. “Having provided this service to prop up an unsupported legal aid system for the past 12 months, our membership has determined that it is no longer able, or willing, to continue doing so.”
In a 2014 interview with the Calgary Herald about the province’s legal aid funding crisis, CDLA president Ian Savage explained provincial funding has not changed since 2011 at approximately $58.8 million annually. The Alberta Law Foundation also provides some annual funding, but that dropped from $14.9 million in 2009 to just a little more than $1 million in 2011.
The foundation signed an agreement to provide a minimum of $5.5 million in 2012, but that agreement comes to a close in 2016, leaving some uncertainty, said Savage.
“The problem is that access to justice has to be seen as a human right like health care or water,” Moustacalis says. “This is a pressing human rights issue.”
Founder of missing-women memorial sues Vancouver for defamation, Canadian Press
Hamilton police investigate death of inmate, Canadian Press
India rejects Pakistan peace plan, Reuters
It’s back to work for the Supreme Court of Canada, which begins its fall session of hearings next week. The court will be receiving arguments on 25 appeals over the next three months, with a light calendar that includes the usual assortment of statutory and Charter challenges, commercial and civil appeals, and the occasional legal oddity.
Next week, the top court will get right down to business as it tackles a heavyweight in Daniels v. R , a 16-year-old constitutional challenge launched by Métis leader Harry Daniels, who is demanding that Métis and non-status aboriginals be recognized as “Indians” under the federal definition.
Daniels won at the Federal Court of Canada, but he saw the decision clawed back on appeal, where the court ruled that, while Métis were Indians, “non-status” aboriginals would have to be assessed individually.
The court will also hear a couple of Charter challenges next week (in Jordan v. R. and R. v. Williamson) on institutional delay within the justice system, and whether the right to be tried within a reasonable time frame is absolute or should be weighed against other factors.
Solicitor-client privilege in Quebec
In early November, the SCC looks at a rather esoteric matter that will nonetheless resonate within the legal community. In Canada v. Chambre des notaries du Québec, the Canada Revenue Agency is challenging a ruling that found notaries in Quebec — and only in Quebec — to be protected under solicitor-client privilege when ordered by the Minister of National Revenue to provide tax info on clients.
It’s an odd decision in that it imposes jurisdictional considerations on the federal Income Tax Act. The Supreme Court here will no doubt sort out the issue in la belle province while laying out principles that will prove influential across the country and further clarify the bounds of solicitor-client privilege.
Credit for time served: Truth in Sentencing Act
Political brinksmanship will also be on display in November as the court hears another Charter challenge of the Truth in Sentencing Act — Ottawa’s controversial attempt to limit judicial discretion in determining credit for time served.
Judges have railed against the tough-on-crime law, which was partially struck down last year by the Supreme Court. In R. v. Summers, the court ruled that judges may continue to offer credit of 1.5 days for every day served in custody prior to sentencing (to reflect the reality that well-behaved prisoners are typically released two-thirds into their sentence).
However, in R. v. Safarzadeh-Markhali, the Crown is appealing a decision by the Ontario Court of Appeal that struck down a specific provision that prohibits a trial judge from giving more than 1-to-1 pretrial credit if a justice of the peace denies bail due to a previous conviction.
Round II of this contentious battle begins on Nov. 4.
Can the World Bank be subpoenaed?
In World Bank v. Wallace, also being heard in November, the fate of SNC-Lavalin employees will hang in the balance as the Supreme Court rules on whether representatives of the World Bank, which aided the RCMP in its corruption investigation of SNC, can be called to testify.
As an international organization, the World Bank claims it is immune from court processes. The SCC here will determine how far that immunity goes in practice.
Another big statutory challenge, Canadian Pacific Railway v. Canada, will be heard in December, as the court reviews regulations under the Fair Rail for Grain Farmers Act.
The law, which Ottawa enacted last year to give grain farmers greater access to rail transport, expands “interswitching” obligations, where railway operators are required to move containers from one rail line to another.
Prior to the amendments, operators were required to provide interswitching services to rail lines within 30 kilometres of each other; now that limit has expanded to 160 kilometres, placing an onerous new burden on the rail sector.
CP Rail is not challenging the law itself but rather the administration of regulations under the law. In its appeal, the company argues the Canadian Transportation Agency showed itself to be a puppet of Parliament by neglecting to carry out an independent review of the proposed regulations.
This hearing will focus on the extent to which administrative bodies must be free from political interference.
Bestiality and animal games
Then you have your odds and ends and legal curiosities — a couple of which deal with animals this fall.
In Riesberry v. R., an animal trainer was caught injecting performance-enhancing drugs into a race horse. He argues that horse racing is not technically a “game” under the Criminal Code and, therefore, he wasn’t committing a “crime.”
And, finally, in R. v. D.L.W., the highest court in the land will be required to hear an appeal, as of right, on bestiality.
The respondent here argues that the crime of bestiality requires actual penetration. We’re not going to touch that here, but come November the SCC definitely will.
Global law firm Allen & Overy is closing its Toronto office as the outpost’s sole partner departs for an in-house gig in his hometown of Montreal.
|Francois Duquette is moving back to Montreal for an in-house position with Caisse de dépôt et placement du Québec.|
“I thought it was a good move for my career,” says Duquette, adding moving back to Montreal was also a plus.
Duquette, who staffed Allen & Overy’s Toronto office with a senior associate, says the firm decided to shut down the office after he accepted the job in Québec.
“I decided to make that move and the firm had to decide what they wanted to do with the Toronto office. [They] took the decision to close the office because I am the sole partner and therefore there was an issue with keeping the office open in this configuration,” he says.
The firm, headquartered in London, England, will continue to serve its Canadian clientele on a fly-in-fly-out basis, as it did prior to the opening of the Toronto office.
Allen & Overy’s Toronto office, the firm’s only Canadian presence, did not involve practising local laws. It used Canadian firms for domestic legal work, a system that will continue going forward.
“It was never our intention to practise local law; it was always meant to be a marketing outpost,” Duquette says.
In Toronto, Duquette’s main duties included continuing transactions he had started when he was based in the Middle East and Africa, and acquiring new clients for the Allen & Overy network. Before starting the Toronto office last year, Duquette practised in Abu Dhabi from 2004 to 2011 and founded the firm’s Casablanca office in 2011.
For Duquette, in-house legal work isn’t new. He was seconded to a Middle Eastern energy company five years ago and enjoyed the in-house dynamic, he says. After his tenure in Toronto, which didn’t involve Canadian legal practice, he’s looking forwarding to doing more hands-on work.
“It will be good to get my hands dirty again,” he laughs.
Caisse de dépôt has a good mix of local and international clients, Duquette also says.
“For me it was the perfect fit,” he adds. “Pension fund is a very interesting and diversified work.”
Allen & Overy, a Magic Circle firm, has more than 500 partners and boasts offices in some 30 countries.
Man stabbed to death in Cape Breton, Canadian Press
- However CSA stats show mining, oil & gas, and tech sectors have fewest women at the table
A report from the University of Calgary and Alberta Securities Commission shows the number of women on boards in that province is on the rise, but the oil patch has a long way to go compared to other sectors.
|Number of women on boards by industry (Source: CSA’s ‘Staff Review of Women on Boards and in Executive Officer Positions’)|
The study found:
• 22 per cent of all new board directors of TSX-listed Alberta issuers appointed in 2015 are women.
• Women hold nine per cent of all TSX-listed board positions of Alberta issuers, up from eight per cent in 2014. The number of TSXV-listed board positions held by women remained steady at four per cent year over year.
• Women hold 20.3 per cent of all board positions of Alberta issuers in the TSX/S&P 60 Index, in line with the average number of women on boards for the entire TSX/S&P 60 Index (20.8 per cent) according to Catalyst’s most recent survey.
• Of all companies surveyed, 29 per cent have one woman or more on the board of directors, while only three per cent have three or more women on their board. That is up over last year when 25 per cent of all companies surveyed had one woman or more on their board of directors; two per cent had three or more.
However, according to statistics released by the Canadian Securities Administrators Monday — in “Staff Review of Women on Boards and in Executive Officer Positions” — mining, along with oil and gas and technology industries had the most issuers with no women on their board of directors, at 60 per cent or more in each sector.
About half of all issuers in the biotechnology, mining, oil and gas, and technology sectors do not have any female executive officers.
Utilities and retail sectors had the most women on their boards with 57 per cent and 43 per cent of issuers respectively, having two or more female directors. They also had the fewest boards with no women on them.
While the numbers in Alberta appear to be increasing, the province is one of three, along with British Columbia and Prince Edward Island, that did not agree to the Canadian Security Administrators’ guidance issued last December regarding women on boards.
Securities regulators in Manitoba, New Brunswick, Newfoundland and Labrador, Northwest Territories, Nova Scotia, Nunavut, Ontario, Quebec, and Saskatchewan did adopt the rules requiring companies to disclose, on an annual basis, information on policies relating to the identification and nomination of women directors, targets for women on boards and in executive officer positions as well as the number and percentage of women on the issuer’s board of directors and in executive officer positions.
Absent this kind of direction, governance expert Richard Leblanc says the change won’t just happen organically.
“What the oil patch should do is endorse the need for measureable objectives for women on boards, and develop a talent pool for women early on in their executive careers to identify and nurture high potential board talent,” says Richard Leblanc, an associate professor in law, governance, and ethics at York University.
Leblanc says regulators want to see progress on increasing the number of women on boards within three years and with one year down, “the clock is ticking.”
“Regulators are clearly seized with enhancing women on boards, in dozens of countries. They have shown they will act. I predict they will act further in Canada if the directorial community does not does not make adequate progress,” he says.
Shooting death at Vancouver mall linked to gangs: police, Canadian Press
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