Crossing the Lifeline: The Psychological Benefits of Counsel in R v Whittaker
The Court
by Adam Wyville
2M ago
The Court of Appeal for Ontario (the “ONCA”) has provided an emphatic reminder regarding the importance of timely access to counsel. R v Whittaker, 2024 ONCA 182 reinforces the notion that extended delays in accessing counsel will generally have an extensive impact on a detainee’s s. 10(b)-protected interests. Emphasizing the psychological benefits of speaking with counsel while in custody, Whittaker illustrates how deferring or denying access to counsel can single-handedly prompt a court to exclude critical evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms (the “Charter ..read more
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Yatar Hero: SCC confirms simultaneous judicial review and appeal in Yatar v TD Insurance
The Court
by Joel Robertson-Taylor
2M ago
In Yatar v TD Insurance Meloche Monnex, 2004 SCC 8 [Yatar], the Supreme Court of Canada (“SCC”) unanimously ruled that the existence of a statutory right of appeal does not preclude individuals from seeking judicial review for questions not covered by the appeal. Specifically, where the appeal right is restricted to questions of law, judicial review remains open for questions of fact or mixed fact and law. Addressing the question, the Ontario Divisional Court held that where statute provides for a limited right of appeal, judicial review is available only in “exceptional circumstances” (Yatar ..read more
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APPEAL WATCH: MNS v Saskatchewan (Environment) on Land Claims and Judicial Review
The Court
by Darya Rahbar
2M ago
The Supreme Court of Canada (“SCC”) is set to hear an appeal out of the Saskatchewan Court of Appeal (“SKCA”) on a decades-long Métis land claim proceeding through a judicial review application in the case of Métis Nation – Saskatchewan v Saskatchewan (Environment), 2023 SKCA 35 [MNS].  Facts Under s 35 of the Constitution Act, 1982, the treaty rights of Aboriginal peoples of Canada, including the Métis peoples, are recognized and affirmed. For decades, the Métis Nation of Saskatchewan (“MNS”) asserted that among such rights are title over parts of northern Saskatchewan and the right to h ..read more
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R v Bykovets: Police Protocol for Internet Protocol
The Court
by Stephen Fulford
2M ago
In R v Bykovets, 2024 SCC 6, the Supreme Court of Canada (“SCC”) decided that Canadians have a reasonable expectation of privacy in their Internet Protocol (“IP”) addresses. As a result, law enforcement and investigative agencies will require judicial authorization to compel disclosure of IP addresses, or else be found to breach section 8 of the Canadian Charter of Human Rights and Freedoms [Charter]. Section 8 of the Charter, which protects against unreasonable search or seizure, is the primary restriction on the government’s ability to infringe on the privacy interests of Canadians.   F ..read more
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Appeal Watch: Sentencing Offenders with Disabilities in J.W. v His Majesty the King (Part II)
The Court
by Angelika Kuzma
2M ago
For an overview of the judicial history of this case, please see the first installment of this contribution. In this second contribution, I focus on the two underlying legal questions before the SCC.       At the SCC: What is an equitable and principled approach to sentencing mentally and/or cognitively impaired offenders? In the accused’s Memorandum of Argument (“MoA”), it is stated that “[t]his appeal raises critical questions about how courts can equitably approach the difficult task of sentencing individuals with mental disorders and cognitive impairments” (MoA, para 17). Ac ..read more
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Appeal Watch: Sentencing Offenders with Disabilities in J.W. v His Majesty the King (Part I)
The Court
by Angelika Kuzma
2M ago
Content Warning: The facts of this case involve the mention of serious violence and sexual assault.   The Supreme Court of Canada (“SCC”) has granted leave [40956] to appeal the Court of Appeal for Ontario’s (“ONCA”) decision in R v J.W., 2023 ONCA 552 (“J.W”). The case revolves around the complex web of jurisprudence informing the discretionary sentencing powers afforded to judges, particularly in the context of offenders with mental disorders and cognitive impairments.  In this appeal, the SCC is being asked to weigh in on two complex and thorny questions: First, whether judges are ..read more
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No Good Deed: The Good Samaritan Drug Overdose Act Reaches the SCC
The Court
by Adam Wyville
2M ago
On February 22, 2024, the Supreme Court of Canada (“SCC”, or the “Court”) granted the Crown’s application for leave to appeal [40990] R v Wilson, 2023 SKCA 106 [Wilson]. The SCC’s decision will set a national standard regarding the limits of police powers to arrest and search a person who reports or remains at the scene of a drug overdose.   Background The Good Samaritan Drug Overdose Act On May 4, 2017, the Good Samaritan Drug Overdose Act, SC 2017, c 4 [Good Samaritan Act] became law across Canada. The legislation amended the Controlled Drugs and Substances Act, SC 1996, c 19 [CDSA] to ..read more
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APPEAL WATCH: Pepa v Canada, bound by obiter
The Court
by Joel Robertson-Taylor
3M ago
The Supreme Court of Canada (“SCC”) granted leave to appeal Pepa v Canada (Citizenship and Immigration), 2023 FCA 102 (“Pepa FCA”), a pithy (16 paragraph) dismissal of a certified question for appeal from the Federal Court of Canada (“FC”) under the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”). The appeal material raises two main issues: first, whether a permanent resident visa holder loses the right to appeal a removal order if their visa expires in the course of administrative delays; and second, the reasonableness of an administrative decision-maker’s (“ADM”) reliance on o ..read more
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APPEAL WATCH: R v Pan, a legally messy murder 
The Court
by Stephen Fulford
3M ago
The Supreme Court of Canada (“SCC”) has granted leave to appeal the long and complex case of R v Pan 2023 ONCA 362 [Pan]. At trial, four co-accused – Jennifer Pan (“Pan”), Daniel Chi-Kwong Wong (“Wong”), Lenford Crawford (“Crawford”), and David Mylvaganam (“Mylvaganam”) – were all convicted of first-degree murder and attempted murder in the murder-for-hire plot that killed Pan’s parents. In Pan, the Ontario Court of Appeal dealt with seven grounds of appeal, which raised interesting questions related to jury instruction, included offences, judicial discretion and more.    Background ..read more
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Making Sense of Consequential Charter Breaches After R v Zacharias
The Court
by Adam Wyville
3M ago
In R v Zacharias, 2023 SCC 30 [Zacharias], a divided Supreme Court of Canada (“SCC” or the “Court”) held that evidence obtained through an unlawful detention cannot be used to ground a lawful arrest. Although Zacharias set a uniform national standard on this point, the SCC was anything but uniform in addressing the issue and its implications for s. 24(2) of the Canadian Charter of Rights and Freedoms (the “Charter”).   Background On February 17, 2017, George Zacharias was pulled over by the RCMP while driving on Highway 1 near Banff, Alberta. Constable Tyler MacPhail initiated the traffic ..read more
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