On October 29, the Supreme Court of Canada rendered its decision to deny leave to appeal in R. v. Delaa, [2009] A.J. No. 493, a case concerning the admissibility of covertly obtained “castoff” DNA evidence under the section 8 Charter protection against unreasonable search and seizure.

Two violent sexual assaults occurred in Calgary in September 2003 and March 2004. The police considered the appellant, Wajid Delaa, a strong suspect. While the police hoped to prevent another rape and believed they had sufficient grounds to obtain a warrant for his DNA, they also had information suggesting the appellant was planning to leave Alberta in the immediate future and so did not want to alert him to the investigation.

An undercover operation was therefore devised to obtain castoff evidence that would contain the appellant’s DNA. A police officer posed as a potential purchaser of the appellant’s truck, which he had put up for sale. During a test drive, the two of them stopped at a gas station to check the truck’s fluids. There, another undercover officer solicited participation in a chewing gum survey, to which the appellant agreed. Delaa sampled and then spat out four pieces of gum into Dixie cups provided by this undercover officer, ostensibly to avoid littering. The DNA from the gum ultimately proved to be match that obtained from the two rapes, and the appellant was arrested. Read the rest of this entry »

As the federal and provincial governments rolled out their vaccination programs for H1N1 flu last week, health ministers, doctors, and other government representatives have all been answering questions about the vaccine’s safety and efficacy. There has recently been much debate about the wisdom and effectiveness of population-wide vaccination: for example, see this month’s cover story in The Atlantic Monthly. In Canada, one of the general concerns has been about the safety of the adjuvant (a compound that acts to increase immune response, and therefore makes the vaccine more effective) present in the vaccine, which has not been used before in Canada (though has been in use for years in Europe).

Years of experience with flu vaccines generally suggest that this one is safe, and while there are always risks of complications and side effects, these risks are tiny. Nevertheless, would it be possible for someone who has received the shot during the largest vaccination campaign in Canadian history and has been harmed by any of the (unlikely) side effects of the H1N1 flu vaccine to sue the government for compensation?
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Supremes Drawn into Securities Fight
The federal government recently pulled the Supreme Court into the middle of its spat with the provinces over whether Ottawa has the power to create a national securities regulator. “In the best courtroom manner, the Harper Conservatives are taking care to ask a question to which they already know the answer: of course Ottawa has the power to establish a national securities regulator,” argues Maclean’s Paul Wells. That conclusion will no doubt please Attorney General Rob Nicholson, who bragged in a statement that “the Government is supported by many of Canada’s foremost constitutional experts.” But Wells notes that the reference raises broader issues: “The Supremes will find themselves tempted to draw some sweeping conclusion about the nature of federal responsibility for the economy, and the limits of provincial responsibility.” And that, suggests Wells, is just fine by the Harper government. Read the rest of this entry »

If at first you do not succeed, try, try again. These words of wisdom convey the ethos of human rights advocacy: paucities of political power, limited financial resources, public indifference (if not outright hostility), and the slow pace of social change regularly conspire to cast those who persist in the fight for justice as idealistic at best, naïve at worst. Such has certainly been the experience of those who have launched a barrage of constitutional challenges to our post-9/11 security certificate regime; a regime that allows the government to detain and deport non-citizens who are deemed to be, among other things, a threat to national security. Despite compelling arguments and the persuasive authority of developing international and foreign law, the Federal Court and the Federal Court of Appeal repeatedly refused to intervene on behalf of persons named in certificates. Relying on deep-rooted assumptions about the administrative “nature” of certificate proceedings, as well as the limited rights to which non-citizens are entitled, Federal judges did little to infuse enhanced procedural protections into what have progressively been recognized to be quasi-criminal proceedings.

The prospect of change appeared slight, but persistence eventually paid off. The Supreme Court of Canada (SCC) overturned these rulings when it laid down its judgments in Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 SCR 350, (hereinafter “Charkaoui I”) and Charkaoui v. Canada (Citizenship and Immigration), [2008] 2 SCR 326, (hereinafter “Charkaoui II”). Reversing years of jurisprudence, including its own judgment in Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711, the SCC found that ss. 7, 9, and 10(c) of the Charter of Rights and Freedoms require that named persons be provided with procedural rights customarily reserved for persons accused of committing crimes. Perhaps more significant than the formal changes subsequently made to the Immigration and Refugee Protection Act (IRPA) have been the changes in Federal Court judges’ attitudes towards certificate proceedings. The very same judges who refused to recognize named persons Charter rights prior to Charkaoui I and II have since exercised their statutorily authorized discretion to extend to named persons rights beyond that which is expressly provided in IRPA. Times are changing, indeed.

Then, on 14 October, 2009, the Federal Court in Charkaoui (Re), (2009) CF 1030, went further than many would have imagined: it ruled that the certificate issued against Mr. Charkaoui was illegal, null, and ultra vires the Ministers of Citizenship and of Public Safety (“the Ministers”). This decision was most directly prompted by the government’s withdrawal of key pieces of evidence; a tactic employed in numerous jurisdictions to protect the confidentiality of sensitive information which would otherwise have to be disclosed. The reviewing judge in this case, Tremblay-Lamer J., found that the withdrawal of this evidence rendered the certificate factually unsupportable and ruled that the only appropriate remedy was to quash it, setting Mr. Charkaoui free. To add force to her disapproval of the Ministers’ strategy, she proceeded to refuse their request to have certified a set of questions for the Court of Appeal. One could be excused for seeing in this judgment a fitting end to Mr. Charkaoui’s 7-year struggle. Such a result, however, is unlikely to be the case.

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Last Tuesday, the U.S. Supreme Court granted leave in the politically charged case of Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009). The main legal issue is whether the federal courts have the jurisdiction to order that Guantanamo detainees be released into the United States. For anyone with a strong commitment to liberty and basic respect for human rights, the facts of the case are pretty remarkable, if not shocking. A group of Uighurs had fled religious persecution in China and set up camp in Afghanistan. They were forced to move to Pakistan when the U.S. military began to bomb their camp. They received a warm welcome in Pakistan, whereby the locals gave the Uighurs over to the U.S. military for $5,000 per head. Considered to be enemy combatants at the time, the Uighurs were shipped off for a little R&R at a certain island resort, commonly known as Guantanamo Bay, in 2002. Once the U.S. government determined that the Uighurs were non-enemy combatants, it approved their petitions for release. The issue at hand arose out of the government’s inability to find countries that were willing to accept the Uighurs.

The U.S. government will not allow the seventeen Uighurs in question to live in the U.S. because they received paramilitary training and allegedly pose a security threat. It maintains this position despite deeming them to be non-enemy combatants. Other countries have refused to accept the seventeen petitioners, including China, their native country. Consequently, the Uighurs have been forced to remain in Guantanamo Bay.

To free themselves from limbo, the Uighurs petitioned for the writ of habeas corpus. District Court Justice Urbina of the District of Columbia granted their petition and gave them permission to be released in the U.S. Conditions of their release were to be imposed on a later date. His decision was controversial because of the conflicting demands of the separation of powers, political sovereignty, and the “wind-up” authority of the executive branch.

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Last Thursday, the Supreme Court denied leave to appeal in C.D. v. A.B., 2009 BCCA 200, affirming the statutory requirement that even allegedly “delusional” spouses must possess the necessary intent to live separate and apart before the courts will grant a divorce.

Circumstances precipitating family breakdown are almost always distressing. In this case, the husband (C.D.) and wife (A.B.) were married for forty-three years before the wife claims she decided to end their relationship.  The couple had attended marriage counseling for five years prior, allegedly at the husband’s insistence, in hopes of achieving reconciliation despite the wife’s claims that her husband had been unfaithful and was actively persecuting her. Vehemently denying both charges, the husband claims that their marriage counselor suggested that his wife may be suffering from “delusional disorder”.  This exceedingly rare neurological disturbance (affecting .03% of the population) is characterized by false beliefs about events in an individual’s life despite evidence to the contrary and the total absence of other mood or psychotic symptoms typically associated with schizophrenia. Individuals suffering from such delusions can otherwise function as though they were perfectly healthy. While diagnosis and treatment of the disorder are often challenging because suspected sufferers may be understandably reticent to seek help for something about which they have little insight, the wife in this case submits that her family physician declined a request for referral to a geriatric psychologist because “it is not [his] opinion” that a referral was necessary given her seeming ability to handle her affairs. The wife “unequivocally” rejects the husband’s request for further examination, maintaining her interest to end the marriage.

The only ground for divorce in Canada is “marriage breakdown”, an amorphous catch-all that may be established on several bases.  The most relevant ground for our purposes is that the spouses have lived “separate and apart” for one year in order to obtain a divorce pursuant to s. 8(1)(a) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). As only one spouse must possess the requisite intention to do so, the unwilling husband in this case seeks to demonstrate that his wife “has become incapable of forming or having an intention” to separate of her own volition under s. 8(3)(b)(i), effectively binding her in the marriage union as long as she continues to suffer delusional episodes.

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Based on the outcry from all sides of the political spectrum, it is no wonder that the Supreme Court of Canada took a middle-of-the-road approach in its decision in Nguyen v. Quebec (Education, Recreation and Sports), 2009 SCC 47. (A comprehensive factual background of the case was provided on TheCourt.ca in May 2008 by representatives of the Quebec Association of Independent Schools when the case first appeared on the Supreme Court docket.)

Writing for a unanimous Court, Justice LeBel held paragraphs 2 and 3 of section 73 of the Quebec Charter of the French Language (provisions dealing with minority language education) as being inconsistent with subsection 23(2) of the Canadian Charter of Rights and Freedoms. However, in attempting to achieve a delicate balance that is arguably necessary when it comes to language and Quebec, the Court also suspended the declaration of unconstitutionality for a full year, resulting in what Peter Hogg calls “Temporary Validity” of the law in question.

When it came to the specific situations of the claimants, the Court issued two different orders to the Ministry of Education despite the one year suspension of unconstitutionality. For one of the claimants, Bindra, the Court ordered that a Certificate of Eligibility for instruction in English be issued. For the other claimant, Nguyen (and the claimant group of 25 that fell within that scope), the Court simply ordered that the files be returned to the Ministry of Education and be reassessed in light of its judgment.

The decision resulted in a heated debate in the Quebec National Assembly during which the leader of the opposition filed a motion to “denounce the decision of the Supreme Court” (« Que l’Assemblée nationale du Québec dénonce la décision rendue ce matin par la Cour suprême du Canada invalidant les dispositions de la loi n° 104. »). Such antics are hardly surprising to anyone who has sat in on a legislative session. On the other end of the spectrum, there was outrage as to why the Court didn’t strike down the laws in a plain vanilla fashion, without a one year suspension. Media coloured the Supreme Court decision with headlines such as “Parents score a win in court - sort of” (The Gazette) and “A qualified win” for minority rights (The National Post). The Ottawa Citizen noted that to regard the case as a rights victory would be an “overstatement” and that the decision will bring to light the “negative impact” Quebec language laws are having on immigrants (“Language Lunacy - Again”).

In light of these criticisms from all sides, it is necessary to return to the underlying constitutional principles and the “reach” of section 23 of the Canadian Charter.
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Sotomayor’s Sartorial Splendor
The clothes make the justice, or so the White House seems to think, suggests Jennifer Forsyth over at the WSJ Law Blog. Justice Sonia Sotomayor, known for her gift of gab, told a private audience at her 30th Yale Law School class reunion that the White House tried to script her entire confirmation process, down to her choice of dress. “[S]he’d gone shopping for clothes to wear to her acceptance ceremony, but government officials instead told her to bring five suits, one of which they would recommend for her to wear,” an attendee told the New Haven Register. A casual assessment of Sotomayor’s outfits would seem to suggest the Obama administration was sending some subtle sartorial signals to Democrats, Republicans and those in between with her cheery blue, red and purple suits. Read the rest of this entry »

With a ruling soon to come regarding Roman Polanski’s legal woes in Switzerland, the topic of extradition has once again grabbed the public’s attention. Closer to home, the Canadian Supreme Court recently released its judgement in Canada (Justice) v. Fischbacher, 2009 SCC 46, regarding the correct process in surrendering an individual charged with a foreign offence. Several concerns are prevalent in the case, including honouring the principles of comity and determining the extent of discretion afforded to the Minister of Justice. In departing from the unanimous approach of the appellate courts, the Court has created what may become a dangerous precedent. While there may be inherent difficulties in the “misalignment” test, the policy rationale underpinning the test is still alive and kicking.

Background

Henry Fischbacher was indicted of a charge of first degree murder by a grand jury in Tucson, Arizona. The evidence in the record alleges that Mr. Fischbacher telephoned his sister, and disclosed that he and his wife had an argument. During the argument he punched his wife in the face and hit her on the back of the head, knocking her unconscious. He then dragged her out back to the pool and held her head underwater for several minutes until convinced she was dead. Mr. Fischbacher then fled to Canada. The United States requested his extradition from Canada for the offence of first degree murder. Read the rest of this entry »

Canada recognizes and affirms existing Aboriginal and treaty rights in section 35(1) of the Constitution Act, 1982. The SCC, following this constitutional recognition, devised a jurisprudential regime setting out standards for defining, identifying and violating Aboriginal rights. This regime incorporates the duty to consult and accommodate Aboriginal rights. The SCC in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, ruled that the Crown has a duty to consult Aboriginal peoples and to accommodate their concerns even before Aboriginal title claims have been decided.

According to the SCC, the scope and extent of this duty depends on the circumstances of the case, giving courts judicial discretion over the outcome. The SCC set out basic guidelines, but referred to emerging and developing case law to define the precise duties that arise in different situations. Further clarification with regard to the extent of the duty and the role of third parties is required for this process.

In Brokenhead Ojibway First Nation v. Canada (Attorney General), 2009 FC 484, the Federal Court has once again entered the murky waters surrounding the Crown’s duty to consult Aboriginal peoples. When the federal Crown considers a pipeline project, it will inevitably have a significant impact on Aboriginal rights. However, the concern that arose in this claim was whether project-specific regulatory and environmental review processes like National Energy Board (NEB) are able to fulfill Crown’s duty to consult.

The Federal Court supported the regulatory processes and rejected the claimants’ argument that the regulatory process could not properly address unresolved claims. It denied the three applications for judicial review of the decisions by the Governor in Council (GIC) to approve NEB authorizations for the construction of pipelines in southern Manitoba.
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