Canada's highest court tackles issue of whether breach of treaty claim is time-barred
This week, the Supreme Court of Canada dealt with an Aboriginal law case involving issues of treaty rights and limitation of actions and with criminal law matters with issues relating to party liability and the language of the accused.
Supreme Court of Canada
On Wednesday, the court heard Franck Yvan Tayo Tompouba v. His Majesty the King, 40332. The appellant was charged with sexual assault and was convicted after a trial in English.
The B.C. Court of Appeal accepted that there was a failure to advise the appellant of his right to apply for a trial in French under s. 530(3) of the Criminal Code. But the appellate court dismissed the appeal upon applying the curative proviso in s. 686 of Criminal Code. The right in s. 530(3) was a procedural right, not a substantive right, the appellate court said.
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On Thursday, the court will hear Jim Shot Both Sides, et al. v. His Majesty the King, 40153. In 1980, the Kainai or Blood Tribe filed an action alleging that the actual size of Reserve No. 148 in Alberta was understated compared with what Treaty 7 promised.
The Federal Court made the following findings:
- The tribe’s claims, except its claim for breach of a treaty commitment, were time-barred under Alberta’s Limitation of Actions Act, 1970 and under s. 39 of the Federal Courts Act, 1985 since they were discoverable over six years before the date of the action’s commencement
- The time for an action alleging breach of treaty began to run only in 1982 because the tribe could not pursue it in a Canadian court before the advent of s. 35 of the Constitution Act, 1982
- Canada breached its treaty commitment since the size of the reserve was understated by 162.5 square miles
The Federal Court of Appeal allowed the Crown’s appeal. It varied the Federal Court’s judgment to find that all the tribe’s claims were time-barred.
On Friday, the court will hear Don Johnson v. His Majesty the King, 40330. A jury found the appellant guilty of two counts of first degree murder. The majority of the Ontario Court of Appeal dismissed his appeal. The trial judge was entitled to leave party liability to the jury as a route to conviction, the majority held.
The dissenting judge would have allowed the appeal, set aside the conviction, and ordered a new trial. There was not enough evidence to leave party liability with the jury because there was no air of reality to the suggestion that, if the appellant was not the shooter, he aided the actual shooter in committing the murders, the dissenting judge said.
Federal Court of Appeal
On Tuesday, the court heard Sameer Ebadi v. His Majesty the King et al., A-179-22. The judge allegedly made errors in finding that the court lacked jurisdiction, in his interpretation of the Federal Court’s residual jurisdiction, and in his interpretation of the Federal Public Sector Labour Relations Act, 2003 and of the Canadian Security Intelligence Service’s policies and procedures.
On Wednesday, the court heard the cases of His Majesty the King v. Harvey Adam Pierrot, A-15-23 and His Majesty the King v. Margorie Hudson, A-16-23, where the respondents were Indigenous former members of the Royal Canadian Mounted Police. The appeal wanted to stay two proposed class actions because they allegedly overlapped and duplicated two certified class proceedings.
On Wednesday, the court heard Shaun Rickard et al v. Attorney General of Canada, A-252-22, which arose from a constitutional challenge of the transport minister’s orders requiring COVID-19 vaccination of Canadian citizens and residents as a precondition to access and to use federally-regulated transportation services.
The court also heard the vaccine-related cases of The Honourable A. Brian Peckford et al v. Attorney General of Canada, A-251-22 and The Honourable Maxime Bernier v. Attorney General of Canada, A-253-22. The appellants alleged that the application judge failed to find the following:
- The transport minister’s threat to re-implement the mandatory vaccine requirement weighed heavily in favour of hearing the application as a public interest matter
- There was a significant public interest in deciding the constitutionality of prohibiting millions of Canadians from travelling overseas or across the country in any practical manner
Also on Wednesday, the court heard Nabil Ben Naoum v. Attorney General of Canada, A-254-22. The appellant claimed that the application judge wrongly found no significant public interest in discriminating against a specific category, consisting of millions of Canadians, by preventing them from leaving the country’s borders for nearly a year.
On Thursday, the court will hear Ross Johnson v. His Majesty the King, A-28-21. The appellant challenged the Tax Court of Canada’s decision dismissing an application to extend the time to file a notice of appeal made under the Excise Tax Act, 1985.
Also on Thursday, the court will hear Regis Beniey c. Ministre de la Sécurité publique et de la Protection civile, A-74-21. The appellant challenged a ministerial decision under s. 19(1) of the Access to Information Act, 1985 refusing to provide the requester with videotapes corresponding to certain information sought.