BenchPress - Vol 43-5 - LawNow Magazine

BenchPress – Vol 43-5

  1. Discrimination Based on Country of Origin

The Federal Court of Canada has struck down as unconstitutional a provision of the Immigration and Refugee Protection Act (IRPA). In 2012 the Act was changed to create two categories of refugees, based on their country of origin. So called “safe countries” were deemed unlikely to produce refugees and other countries were deemed “not safe”. Refugee claimants from designated “not-safe” countries were obliged to wait two years longer for a risk assessment of their removal from Canada. A risk assessment looks at risk to life, to torture or to cruel treatment. A group of Romani from Hungary (a non-safe country) claimed that they were discriminated against on the basis of nationality, contrary to s. 15 of the Canadian Charter of Rights and Freedoms. Justice Boswell of the Federal Court of Canada agreed that they were. He used a two-step analysis:

  • does the law draw a distinction based on one of the grounds of discrimination under the Charter, and if so,
  • does the distinction impose a burden or deny a benefit to the person affected.

On the first step, Justice Boswell stated “the differential treatment is clearly a distinction based on the national origin of the refugee claimant”. With regard to the second step, he ruled that discrimination based on national origin perpetuates prejudice or stereotyping. He wrote: “It perpetuates a stereotype that refugees from DCO (designated countries of origin) countries are somehow queue-jumpers or bogus claimants who only come here to take advantage of Canada’s refugee system and its generosity.”

Justice Boswell ruled that the offending section of the Immigration and Refugee Protection Act violated s. 15 of the Charter (equality) and it could not be saved under s. 1 of the Charter as a reasonable limit on freedoms as justified in a free and democratic society.

Feher v. Canada (Public Safety and Emergency Preparedness), 2019 FC 335 (CanLII)


  1. A No Contest Clause Challenges Fortitude

A no contest clause in a will is a bit like a “double or nothing” bet. It is meant to discourage beneficiaries from contesting a will and says that if a beneficiary unsuccessfully challenges a will, he or she forfeits their gift altogether. In a case recently decided by the Alberta Court of Appeal, the Court considered whether a beneficiary asking the personal representatives of the testator to obtain formal proof of the will, as opposed to a grant of probate in common form, could trigger the no contest clause. The beneficiary in this case had raised the possibility of suspicious circumstances in the signing of the will but argued that this did not amount to challenging the will, thus triggering the clause. She asked the Court to confirm her position. However, the Alberta Court of Appeal ruled that an application by the beneficiary to raise suspicious circumstances about the creation of the will would trigger the no contest clause. The Court wrote: “…the effect of the no contest clause is to test the fortitude of a potential challenger to the validity of the will and how strongly they believe they can successfully challenge the will.” The Court concluded: “A declaration shall issue that if Ms. Mawhinney applies…to request the personal representatives to obtain formal proof of the August Will, that will constitute a challenge to the validity of the August Will, or litigation in connection with a provision of the August Will, and will trigger operation of the no contest clause in paragraph 21. Whether that application results in the forfeiture of Ms. Mawhinney’s interest under the August Will depends of whether her challenge succeeds.”

Mawhinney v Scobie, 2019 ABCA 76 (CanLII)


  1. Gap in Sex Offender Registration Laws

A man identified as G was accused of sexually assaulting his wife while in a manic state. He was found not criminally responsible at trial because of his mental state and granted an absolute discharge a year later. Still, he was obliged to register as a sex offender for life under a provincial law passed in 2001, called “Christopher’s Law”, and also under the federal Sex Offender Information Registration Act (SOIRA) for a period of twenty years. G challenged his registrations under ss 7 (life, liberty and security of the person) and 15(1) (equal treatment under the law) of the Charter. He pointed out an anomaly in the law. Persons found guilty of a sexual offence but who receive a conditional or absolute discharge at sentencing are not required to register under either the federal or provincial laws under a Criminal Code provision. However, persons found to be Not Criminally Responsible on account of Mental Disorder (NCRMD) can’t take advantage of the Criminal Code provision because they were never convicted of a Criminal Code offence. The Appeal Court noted: “Persons found NCRMD stand in a dramatically different place than those convicted of a criminal offence. They have done nothing wrong in the eyes of the criminal law, and cannot be punished by the state for what they did.” It dismissed G’s Charter s. 7 argument but ruled: “…the equality command of s. 15(1) dictates that NCRMD who have received an absolute discharge must have some opportunity to address both their risk of reoffending and the potentially negative effects of sex offenders’ registry orders on their mental health and continued recovery. Neither Christopher’s Law nor SOIRA provides that opportunity. Consequently, both infringe s. 15(1) of the Charter.”  The Court ordered the suspension of the provisions of Christopher’s Law and SOIRA to the extent that they impose mandatory registration and reporting requirements with no possibility of exemption for persons found NCRMD who have received an absolute discharge. The Court gave the two governments 12 months to amend the law.

G. v. Ontario (Attorney General), 2019 ONCA 264 (CanLII)


  1. Students and Privacy

A high school teacher was charged with voyeurism after he secretly videotaped female students in his school, focusing on their upper bodies and breasts. The offence of voyeurism requires that the persons observed have a reasonable expectation of privacy and that the observation or recording is done for a sexual purpose. The Supreme Court of Canada examined a number of factors giving rise to an expectation of privacy, including:

  • the location of the person;
  • the nature of the conduct;
  • awareness or consent to the potential observation or recording;
  • the manner in which the observation or recording was done;
  • the subject matter or content of the observation or recording;
  • any rules or regulations or policies governing the observation or recording;
  • the relationship between the persons involved;
  • the purpose of the observation or recording; and
  • the personal attributes of the person who was observed or recorded.

The Supreme Court ruled:

In this case, when the entire context is considered, there can be no doubt that the students’ circumstances give rise to a reasonable expectation that they would not be recorded in the manner they were. In particular, the subjects of the video recordings were teenage students at a high school. They were recorded by their teacher in breach of the relationship of trust that exists between teachers and students as well as in contravention of a formal school board policy that prohibited such recording. Significantly, the videos had as their predominant focus the bodies of the students, particularly their breasts. In recording these videos, the accused acted contrary to the reasonable expectations of privacy that would be held by persons in the circumstances of the students when they were recorded.

The Court convicted the accused of the offence of voyeurism.

R v. Jarvis, 2019 SCC 10 (CanLII)


Teresa Mitchell
Teresa Mitchell
Teresa Mitchell is the former Editor and Legal Writer for LawNow at the Centre for Public Legal Education Alberta.

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