Arguments have begun this month in a pair of controversial constitutional challenges that could very well end up on the Supreme Court’s docket in the next few years. The cases, both of which are currently before the Ontario Superior Court, attack long-standing policies whose time may have come: Canadian Blood Services’ ban on blood donations from men who have had sex with men, and the three sections of the Criminal Code outlawing activities relating to prostitution.
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On November 17, 2009 the Supreme Court of Canada will hear argument in R. v. Cunningham, an appeal of a judgment by the Yukon Territory Court of Appeal released June 25, 2008. If the Court upholds the YKCA decision in Cunningham it would change the law in many other Canadian provinces, including Alberta (R. v. D.D.C., (1996) 43 Alta. L.R. (3d) 1 (C.A.), generally referred to as Ferguson), Saskatchewan (Mireau v. Canada et al., (1995) 128 Sask. R. 142 (C.A.)), Manitoba (R. v. M.B.D., 2003 MBCA 116) and Ontario (R. v. Chatwell, (1998) 38 O.R. (3d) 32 (C.A.)).

The issue before the YKCA in Cunningham was as to the jurisdiction of courts to review requests by counsel to withdraw from representation in criminal cases presently or imminently before the court. The Court in Cunningham held, following earlier British Columbia jurisprudence, that courts should not review such decisions except with respect to the manner in which the withdrawal occurs. I would argue that while the judgment in Cunningham does not give sufficient weight to the inherent jurisdiction of a court to regulate the conduct of counsel appearing before it, the interests of justice would be best served by the Supreme Court upholding the YKCA’s judgment.

In Cunningham the Yukon Territory Court of Appeal followed the 1985 decision of the British Columbia Supreme Court, Re Leask and Cronin, (1985) 18 C.C.C. (3d) 315, to the effect that where counsel tells a court that he or she no longer wishes to represent the accused, then “a court has no right in law to order counsel to continue in the defence” (Cunningham, para. 1). This is the case even if the reason for the withdrawal is not any ethical or other disagreement with the client, but simply that the client can no longer afford the services of counsel; further, it is the case even where there is the potential for prejudice to the client and to the administration of justice. The Court of Appeal offered several justifications for following the British Columbia position in preference to that of the courts in Alberta, Saskatchewan, Manitoba and Ontario. First, the primary supervisory jurisdiction for how lawyers conduct themselves lies with the law society, not the courts: “while the court has an obvious interest in ensuring the integrity of the administration of justice, it is the legal profession that must generally exercise the responsibilities of oversight independent of the court” (Cunningham para. 22). Thus, if a lawyer withdraws improperly, that lawyer can be properly sanctioned by the law society, but should not be subject to the oversight of the court. To do so is to ignore the rules promulgated by the law societies on this matter and the significance of the independence of the bar.
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On September 24 the Supreme Court of Canada released its decision in United States of America v. Anekwu, 2009 SCC 41. The case concerned the rules of evidence with regards to the Canadian extradition process: specifically, the admissibility of Canadian-gathered evidence that is presented in summarized form, which would not comply with the hearsay rule as traditionally applied in domestic proceedings. The Court, adopting the reasoning of the dissenting justice on the British Columbia Court of Appeal, unanimously held that ss. 32(2) and 33(1) of the Extradition Act, when read together, call for a modified approach to the hearsay rule in the extradition context.

Background

TheCourt.ca’s coverage of the British Columbia Court of Appeal’s decision may be found here, in which event what follows is but a brief restatement of the pertinent facts. In 2005 the United States of America sought the extradition of one Henry Anekwu to face charges of mail and wire fraud. In support of the application for committal, the Attorney General of Canada submitted a certified record of the case prepared by the United States containing, pursuant to s. 33(1) of the Extradition Act, “a document summarizing the evidence available to the extradition partner”. The summary described evidence gathered in both the US and Canada. Anekwu objected to the admissibility of the Canadian-gathered evidence contained in the record of case on the basis that it was presented in summary form and, as such, constituted inadmissible hearsay, which would not satisfy “the rules of evidence under Canadian law” as required under s. 32(2) of the Act. Read the rest of this entry »

Second Amendment sequel
The U.S. Supreme Court added 12 cases to its docket for the upcoming term, including McDonald v. City of Chicago, which, as the National Law Journal notes, means the court will tackle a question it left unanswered last year: whether the individual right to bear arms guards against state and local gun restrictions as well as federal ones. The case is a natural sequel to last year’s D.C. v. Heller, where the court for the first time found the Second Amendment protects an individual’s right to bear arms. Though Heller’s impact was limited to the federal government, McDonald, which concerns a Chicago municipal ordinance, opens the door to the broader issue concerning states. But “the real intriguing question,” says Doug Kendall of the Constitutional Accountability Center, is not whether the court will find that the Second Amendment applies to states and municipalities, but how it justifies such application. In particular, Kendall, among others, is looking to see whether the supremes will revisit a series of 19th century cases and find that the Second Amendment applies to the states not via the Fourteenth Amendment’s due process clause, but through its privileges and immunities clause. David Kopel at The Volokh Conspiracy offers the authoritative list of background reading on the relevant issues. Read the rest of this entry »

As mentioned in TheCourt.ca’s first Amici Curaie, today heralds historic changes to the United Kingdom justice system: installed in their swanky new digs, by the time this article goes to print the Supreme Court of the United Kingdom will have already opened. The new Constitutional Reform Act 2005, 2005 C. 4, (the CRA) goes beyond providing for a new ‘top court’ for the UK, and many learned and qualified commentators across the pond have already opined on the significance of this statute to both the UK justice system and the UK constitution. As TheCourt.ca is devoted primarily to following, discussing, and critiquing the Canadian Supreme Court, it seemed appropriate to briefly examine how the new UK Supreme Court could influence Canada. Specifically, the CRA sets out a new scheme governing the appointment of Supreme Court Justices that that merits consideration (and possible adoption after suitable adaptation) in the Canadian context.

A striking difference between the CRA and the Supreme Court Act, R.S.C. 1985, c. S-26, is how vacancies on the Supreme Courts are filled. The preliminary qualifications are roughly comparable: in Canada, prospective appointees must be (or have been) superior court judges or lawyers of at least 10 years call, while in the UK persons must have held judicial office for at least 2 years or have been a qualifying practitioner for at least 15 years. All Canadian justices are appointed by the Governor in Counsel; similarly, in the UK the Prime Minister recommends candidates which Her Majesty appoints through letters patent. As Canadian readers are likely well aware, all remaining issues involving the selection process and substantive qualifications of prospective judges are matters of political discretion, and accordingly subject to whim of the government of the day. Not so in the UK: the Prime Minister must recommend any person whose name is put forward by the Lord Chancellor and may not recommend any other person. The Lord Chancellor, in turn, is bound to put forward the name recommended by a selection commission. The Lord Chancellor retains only the discretion to send a selection back for reconsideration by the committee, if he or she believes there is insufficient evidence that the person is suitable for the position or if there is evidence the person is not the best candidate on merit.
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Over the past two decades, academics and judges have debated the issue of awarding damages for violations of the Canadian Charter of Rights and Freedoms in the absence of mala fides. It took the threat of a dessert ambush to get the matter to the SCC.

Back in June, leave to appeal was granted for City of Vancouver v. Alan Cameron Ward, 2009 BCCA 23. In 2002, Mr. Ward was arrested and detained for over four hours by the Vancouver police. The police had wrongly identified him as a suspect in a plot to pie former prime minister Jean Chretien. Mr. Ward’s car was seized for the purpose of investigating the assault or attempted assault. The situation worsened for Mr. Ward when corrections officers ordered him to remove all of his clothing except his underwear. Ultimately, the police conceded that there was no basis upon which Mr. Ward could be charged for assault or attempted assault.

At trial, Mr. Ward successfully made Charter claims against the City of Vancouver and the province of British Columbia. Tysoe J. of the British Columbia Supreme Court ordered the City to pay damages in the amounts of $100 and $5000 for the unreasonable search of his car and false imprisonment, respectively.  The court also ordered the Province to pay $5000 in damages stemming from the strip search, which was done in contravention with the detention center’s policies. All parties appealed Tysoe J.’s decision.
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Last Friday, the Supreme Court delivered its ruling in R. v. Jaw, 2009 SCC 42, the second in so many months considering the potentially prejudicial effects of erroneous jury instructions. The issues on appeal and holding of the court are not the most compelling, both being construed rather narrowly to a specific set of facts. The majority and minority opinions, however, provide interesting commentary on principles of interpretation and the seeming ease with which several defensible conclusions may be drawn from close reading the same jury charge.

The appellant in Jaw was implicated in the killing of a police officer called to investigate a domestic dispute between the appellant and his common-law spouse. During an altercation, the officer was fatally shot as both men grappled for the appellant’s gun. Appearing distraught about the shooting, which he later claimed to have been an accident, the appellant immediately reloaded his gun and left the scene threatening to commit suicide.  He did so without inquiring after the officer’s health. A jury eventually convicted the appellant of first degree murder, believing the shooting to have been intentional and not accidental; an accidental shooting would have substantiated the appellant’s conviction on a lesser charge.

The trial judge’s instructions regarding the appellant’s post-offence conduct were impugned on appeal. The rule is that evidence of such conduct cannot usually serve as a basis for inferring the degree of intention of an accused person who has admitted to committing an offence. Possibly, the appellant’s lack of concern for the officer’s well-being following the shooting suggests he was not surprised by the occurrence, implying a prior intent to kill. The appellant claims that the trial judge improperly overstated the probative value of evidence concerning post-offence conduct in his jury instructions.

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Offshore trusts are major tax-planning and estate-planning tools which can be used to protect assets from taxation and to defer accrued capital gains for a long term. For all such planning tools to work, however, the “offshore” aspect of the trust—that is to say its non-Canadian residence—has to be a central feature of the structure. A trust resident in Canada would be subject to Canadian income tax on its worldwide income.

The established common law principle for determining the residence of trusts is that a trust is resident in the jurisdiction where its trustees reside and operate (Trustees of the Thibodeau Family Trust v. The Queen, [1978] 78 DTC 6376 [Thibodeau]). In Thibodeau, two of the trustees were resident in Bermuda and the third trustee was resident in Canada. The Federal Court held that the trust was resident in Bermuda because the majority of the trustees resided in Bermuda and the trust document allowed for majority decision-making.

The Tax Court of Canada’s decision in Garron Family Trust v. Her Majesty The Queen, 2009 TCC 450 [Garron], released September 10, 2009 abandons this established approach in favour of the “central management and control” test used to determine the residence of corporations (De Beers Consolidated Mines, Limited v. Howe, (1906) A.C. 455). Garron holds that the residence of a trust is determined by the jurisdiction where the central management and control of the trust resides regardless of the residence of the trustee. Read the rest of this entry »

Pragmatism: The New Ideology
When U.S. Supreme Court Justice David Souter announced his retirement earlier this year, some liberals openly hoped that President Barack Obama would choose as his replacement a judge who would augur a fierce intellectual revival for the high court’s moribund liberal wing. By those aspirations, Sonia Sotomayor would appear to disappoint, as Jeffrey Toobin notes in this week’s New Yorker. “I don’t think that she has an ideology — that’s what was so great about her,” he quotes an Obama administration official as saying. Moreover, Sotomayor may be an indication of what will become the “Obama template” for further judicial appointments, whereby “pragmatism” steps in for ideology. Toobin concludes that the choice of Sotomayor represents a broader shift in the liberal legal agenda, one that recognizes that the activist Warren era is long over and a more circumscribed role for the courts is in order. Jeffrey Rosen, in an excellent piece in The New York Times Magazine earlier this year, traced this new breed of thinking back to a single meeting in 2005 (see below for more). Read the rest of this entry »

Introduction

In light of Justice Sotomayor’s recent comments during oral arguments in Citizen United v. Federal Election Commission, it may be useful to consider the state of the corporation as a distinct legal entity. On September 9, 2009, Justice Sonia Sotomayor made the following remark in her question to Mr. Abrams:

“Because what you are suggesting is that the courts who created corporations as a person, gave birth to corporations as a person, and there could be an argument made that that was the Court’s error to start with…[was] the fact that the Court imbued a creature of State law with human characteristics.”

This seemingly innocuous comment sent tremors throughout the legal and corporate worlds. The suggestion that courts should reconsider a century old ruling that offers corporations the same rights and protections as persons rocked the foundations of corporate law. Underlying Justice Sotomayor’s statement was an indication that the corporate protection long taken for granted may not be as sacrosanct as once believed. While such a notion may trouble a profession deeply mired in tradition and the principle of stare decisis, a quick examination of corporate law reveals flimsier foundations than may otherwise be believed. Read the rest of this entry »