In Ontario English Catholic Teachers’ Association v. Ontario (Attorney General), 2024 ONCA 101 [OECTA], the majority of the Ontario Court of Appeal (“ONCA” or the “Court”) upheld the Superior Court finding that Ontario’s Bill 124 (“the Bill” or “the Act”), which places–a cap on wages in the public sector–is unconstitutional in its application to unionized workers. A rigorous dissent from Hourigan J.A. emphasized the democratic importance of legislative deference and highlighted the confusion in the existing jurisprudence on collective bargaining rights. Ontario will not be appealing the decisi ..read more

The Court of Appeal for Ontario (“ONCA”) has re-emphasised that capacity for rational decision-making has no place in the test for fitness to stand trial. In its ruling in R v Bharwani, 2023 ONCA 203 [Bharwani], the ONCA held that fitness to stand trial under s. 2 of the Criminal Code, RSC 1985, c C-46 [Code] does not require an accused person to hold the capacity to make rational decisions in their best interests. The Supreme Court of Canada (“SCC”) has granted leave [40781] for appeal to this case; this appeal offers the SCC its first opportunity to rule directly on the content and scope of ..read more

In Mirza et al v the Law Society of Ontario 2023 ONSC 6727, [“Mirza“] the Ontario Superior Court of Justice (“SCJ” or the “Court”) struck a balance between the requirements of administrative procedural fairness and the integrity of the legal profession. The decision introduced some new checks and balances on unilateral actions on behalf of the Law Society of Ontario (“LSO”), and in doing so, it has brought attention to the need for legislative reconsideration of the Law Society Act, R.S.O. 1990, c. L.8 [“the Act“].  Facts After the 2021 Barrister and Solicitor (“Bar”) Exams, the LSO disco ..read more

In R v Abdullahi, 2023 SCC 19 [Abdullahi], Canada’s highest court made a 6-1 ruling that an Ontario trial judge erred in law by insufficiently instructing the jury of the legal definition of “criminal organization” per s. 467.1(1) of the Criminal Code, RSC 1985, c C-46 [Code] or [Criminal Code]. This decision is important for two reasons. First, it provides guidance on the way appellate courts ought to approach review for error in jury instructions. Second, it provides assistance in the judicial interpretation of “criminal organization” under s. 467.1(1) of the Code.   Background An illeg ..read more

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

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

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

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

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

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