case law Archives - LawNow Magazine

BenchPress 39-5: Private Use Doesn’t Apply

June 23, 2015 By Teresa Mitchell

Two Edmonton men were acquitted of offences of making and possessing child pornography because the trial judge accepted that the material, involving two runaway teenage girls, was made for the men’s private use. The Supreme Court of Canada ordered new trials for the men, ruling that s. 153 of the Criminal Code, which makes sexual exploitation of young people a crime, should have been examined. Judges must look at whether the sexual activity occurred in the context of an exploitative relationship. If so, the sexual activity is not lawful and the private use exception does not apply. It found that the trial judge looked at the voluntariness of the activity instead of the relationship between the parties. In addition, the trial judge should have considered a whole range of factors such as age, the difference in age between the girls and the accused, the impact of the girls’ addiction, their need for shelter, and their past and ongoing experiences with homelessness and prostitution. The Court concluded: “By failing to consider whether the underlying relationship between the girls and the accused was exploitative, the trial judge erred in law. This error had a material bearing on the accused’s acquittals and requires a new trial.”

R. v. Barabash, 2015 SCC 29 (CanLII)

Bench Press 39-5: Duress as a Defence to Murder

June 17, 2015 By Teresa Mitchell

For the first time in Canada, an appeal court has upheld the use of duress as a defence to a charge of murder even though the Criminal Code explicitly rules it out. The Ontario Court of Appeal outlined the factors necessary to support both a statutory and common law defence of duress, for people who find themselves in a “kill or be killed” situation.

There must be an explicit or implicit threat of present or future death or bodily harm. The threat can be directed at the accused or a third party;
The accused must reasonably believe that the threat will be carried out;
There is no safe avenue of escape, evaluated on a modified objective standard;
A close connection in time must exist between the threat and the harm threatened;
The harm threatened by the accused must be equal to or no greater than the harm threatened; and
The accused cannot be a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that the threat or coercion to commit an offence was a possible result of this criminal activity.

The Court of Appeal ruled that even if the Criminal Code prohibits the defence of duress, it is available at common law. It noted: “Canadian criminal law does not, however, regard duress as a justification…duress is an excuse. The person excused from criminal liability is not said to have accomplished a greater good, but is rather said to have had no realistic choice but to act as she did.”

R. v. Aravena, 2015 ONCA 250 (CanLII)

Bench Press 39-5: Red-faced about the Red Chamber?

June 4, 2015 By Teresa Mitchell

Aniz Alani, a Vancouver lawyer, has launched a legal action to force Prime Minister Harper to appoint new senators to fill the vacancies in the Red Chamber. The lawyer considers illegal Mr. Harper’s position that he will not advise the Governor General to fill existing vacancies in the Senate. The federal government opposed the application, arguing that, so far, there is no decision to be reviewed by a court, there is no constitutional convention that says the prime minister must make appointments, and this is not a question for the courts in any event. Justice Harrington, of the Federal Court of Canada granted Mr. Alani standing before the court on the basis of the public interest. The Judge noted that there is still much argument and evidence that must be placed before the Court and it is too early to dismiss the application. He wrote: “Certainly, it is premature to say now that this matter is not justiciable.” He also added: “Without a doubt there is a political aspect to Senate appointments. From time to time the Senate, or some Senators, may be a source of embarrassment to the Government, to the House of Commons as a whole, and indeed, to many Canadians. However, I know of no law which provides that one may not do what one is otherwise obliged to do simply because it would be embarrassing. The Supreme Court made it perfectly clear in the Reference Re Senate Reform that significant changes to the Senate, including its abolishment, require a formal constitutional amendment.”

Alani v. Canada (Prime Minister) 2015 FC649 (CanLII)

BenchPress 39-5: A Jury of Your Peers?

May 27, 2015 By Teresa Mitchell

An Ontario Aboriginal man has had his conviction for manslaughter re-instated by the Supreme Court of Canada. Clifford Kokopenace was originally convicted in 2008. However, the Ontario Court of Appeal overturned his conviction because the jury at his trial did not have any Aboriginal members. It ruled that this omission violated his Charter guarantee to a fair trial. However, the majority of judges on the Supreme Court decided that Mr. Kokopenace’s Charter rights were not affected. Justice Moldaver wrote: “There is no right to a jury roll of a particular composition, nor to one that proportionately represents all the diverse groups in Canadian society. Requiring a jury roll to proportionately represent the different religions, races, cultures, or individual characteristics of eligible jurors would create a number of insurmountable problems.” The majority noted that, while juries must be representative, this means a representative cross-section of society, honestly and fairly chosen. What is important is the process used to compile a jury, not its ultimate composition. In this case, the Court found that the province’s efforts to include Aboriginal on-reserve residents in the jury process were reasonable.

Two judges dissented. Justice Cromwell wrote: “An Aboriginal man on trial for murder was forced to select a jury from a roll which excluded a significant part of the community on the basis of race – his race. This is in my view an affront to the administration of justice and undermines public confidence in the fairness of the criminal process”

R. v. Kokopenace, 2015 SCC 28 (CanLII)

Whatever Happened To…U.S. v. Burns: Extradition and the Death Penalty

May 7, 2015 By Peter Bowal and Preet Saini

The Death Penalty Around the World

About 140 countries have permanently abolished the death penalty. Some 50 countries have it on the books but don’t use it; 36 countries continue to use the death penalty, and 22 of these carried out executions in 2013.

Japan and the United States are the only two industrial democracies that use the death penalty. Notably, in the United States, the death penalty for serious felonies was introduced as part of English law that continued after independence. In 1972 the U.S. Supreme Court struck it down as unconstitutional, but it was reinstated in 1976 which, coincidentally, was the same year it was abolished in Canada. Notably, in the United States, the death penalty for serious felonies was introduced as part of English law that continued after independence. Today, the death penalty continues in 34 states, in federal criminal law and in military law in the United States for aggravated murders committed by sane adults.

The 1930s saw the most executions at almost 170 per year. Since 1976, there have been 1394 executions, of which only 15 were women. In 2013, there were 39 executions in the U.S. and 3035 people remain on death row today. Over 98% of executions and death row inmates are male.

Extradition

Due to the relative ease of crossing the border, occasionally persons who commit death penalty crimes in the U.S. will flee to Canada and, once captured there, will resist extradition to the United States. In 1991, the Supreme Court of Canada in the Charles Ng case decided that extradition from Canada would be allowed in cases where the death penalty was a possibility. Was this about to change?

In United States v. Burns [2001] 1 SCR 283, two 18- year- old men were accused of brutally murdering three family members of one of them. The murders happened in the state of Washington, and both accused quickly fled to British Columbia.

Facts

Atif Rafay and Sebastian Burns were friends and classmates who attended West Vancouver High School together. When Rafay’s family relocated to Bellevue, Washington midway through his Grade 12 year for his father’s work at an engineering firm, he decided to finish high school in Vancouver.

On July 7^th, 1994 Rafay and Burns travelled by bus from Vancouver to Bellevue to visit Rafay’s family. Rafay and Burns said they were out at a movie and then dinner together before returning home to the gruesome scene. Police, however, suspected the boys in the triple murders. Six days later at around 2 a.m. Burns made a 911 call from the Rafay home reporting the deaths of Rafay’s family. The parents had been beaten to death. His disabled sister also died later that night.

Rafay and Burns said they were out at a movie and then dinner together before returning home to the gruesome scene. Police, however, suspected the boys in the triple murders. Both stood outside the home and did not help the sister who was then still alive. They did not seem interested in knowing whether any family members might be alive. Their demeanor that evening was nonchalant.

Large amounts of blood were found in the shower enclosure; an effort had been made to wash this blood away. Virtually all hairs in the shower were Causcasian, inconsistent with any of the victims, and matching Burns.

Before they could be arrested, Rafay and Burns, both Canadian citizens, bolted to Vancouver and started spending Rafay’s inherited money. The family estate was valued at a half million dollars and life insurance pushed that higher.

The teens confessed to RCMP in B.C. through an elaborate “Mr. Big” sting. Burns bragged about stripping down to his underwear in order to wash off the blood before doing the baseball bat bludgeoning. The violent force spattered blood on all four walls and the ceiling. The parents were beaten to death in their bedroom. Asked why he wanted his own family dead, Rafay said, “I felt it was a necessary sacrifice… to achieve what I wanted in this life.” The Crown believed they killed for the money. Burns participated in exchange for a share of the money.

With the Rafay and Burns confessions in hand, proceedings to extradite them to face trial in Washington began. This took six years (including two years and two re-hearings at the Supreme Court of Canada) to change the Canadian law of extradition for criminals facing the death penalty in the United States.

Extradition Treaty Subject to the Charter of Rights

Under a treaty between Canada and the United States, the federal Minister of Justice in Canada can approve extraditions. The Minister may seek assurances the fugitives would not get the death penalty if convicted in the U.S. A unanimous Supreme Court of Canada concluded extradition into a jurisdiction with capital punishment violates the principles of fundamental justice in a way that shocks the conscience. The Minister of Justice did not seek such assurances for Rafay and Burns. Plans were made to extradite the pair.

The lawyer for Rafay and Burns challenged the Minister’s decision by arguing their Charter rights were violated.

Supreme Court Decision

Section 7 of the Charter guarantees that “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” A unanimous Supreme Court of Canada concluded extradition into a jurisdiction with capital punishment violates the principles of fundamental justice in a way that shocks the conscience. It ruled that “The Minister is constitutionally bound to ask for and obtain an assurance that the death penalty will not be imposed as a condition of extradition.”

The Court considered the youth of the accused and the “death row phenomenon” of how convicts suffer psychological harm while on death row for decades as mitigating circumstances, as well as development of international law favouring abolition of the death penalty. The Court left room for “exceptional cases” where assurances do not need to be sought, but did not elaborate.

The Court’s decision was that extradition of fugitives in Canada to a jurisdiction that might impose the death penalty is prohibited by section 7 of the Canadian Charter of Rights. If one is extradited to an American state to be prosecuted, that state must first assure Canada that the accused will not be executed.

Where are they now?

Within a month of the Supreme Court’s decision, Rafay and Burns were extradited to Washington. The Prosecutor in charge of the case promised that he would not seek the death penalty for the two accused, and on that basis, the Canadian Justice Minister signed the papers for their extradition. Their trial did not start for three more years. Almost a decade after the crime, both were convicted of three counts of aggravated murder and sentenced to three consecutive life sentences with no possibility of parole. Being two of the youngest people ever targeted in such an undercover operation, Rafay and Burns have filed an appeal on this basis. They are housed with other violent long-term offenders in the Washington State Penitentiary in Walla Walla.

In July 2014, the Supreme Court reconsidered the constitutionality of Mr. Big stings, and limited the admissibility of some confessions obtained from them, especially in the case of very young or vulnerable suspects. Being two of the youngest people ever targeted in such an undercover operation, Rafay and Burns have filed an appeal on this basis. Now 39 years old, each also has responded differently to incarceration.

Rafay

Atif Rafay

He advocates for prison educational programs and has published an essay, “On the Margins of Freedom” in which he discusses the decline of his life behind bars in The Walrus, a Canadian journal.

Burns

Sebastian Burns

Burns carried out the killings and was the first to be induced into the “Mr. Big” sting. He has struggled in jail where he allegedly has been involved in several infractions. He has been assaulted by inmates and has been penalized for fighting and stealing. He has suffered from an eating disorder and underlying mental-health problems. He has refused to eat, has been force-fed, has been restrained and spends much of his time in solitary confinement.

Photos are from the Fifth Estate, Mr. big Stings: Cops, Criminals and Confession, Jan. 16, 2015. cbc.ca

When Prosecution Met Defence: The Michael Bryant Case

May 7, 2015 By J. Mark Smith

Facts of the Case

At 9:47 p.m. on Aug. 31, 2009, former Ontario attorney general and CEO of Invest Toronto Michael Bryant, driving home after dinner with his wife, had a violent encounter with a younger man on a bicycle, Darcy “Allan” Sheppard. Sheppard was drunk, and at a traffic light on Bloor St. W. pulled his bicycle to a stop in front of Bryant’s Saab convertible. The ex-politician, for reasons that have never been satisfactorily established, drove into the cyclist. The force knocked Sheppard back onto the hood and dragged his bicycle some distance beneath the Saab. Sheppard rolled off, stood up, ran around the car and jumped onto the driver’s side, holding onto the window frame (or possibly the driver’s seat headrest). Bryant reversed, drove around the downed bicycle, and accelerated down Bloor into the oncoming lane, which was free of traffic. After a few seconds, Sheppard was thrown from the car. The left side of his torso was torn open, probably by a fire hydrant; but he died, according to the coroner, from the blunt impact trauma of his head hitting the road or sidewalk. Bryant drove to the Hyatt hotel a few blocks along Bloor, where he spoke with a doorman and (three minutes after arriving) phoned 911. The Toronto police charged Bryant with criminal negligence causing death and dangerous driving causing death. He spent the night in jail.

Bryant appeared the next day for a press conference in a crisp suit, hired the public relations firm Navigator, and retained top criminal lawyer Marie Henein as his defence attorney.

It emerged that Sheppard, who was Métis, had been a ward of the child welfare system in Alberta. He worked as a bicycle courier in Toronto. He had a lengthy criminal record in both Alberta and Ontario, mostly for petty and substance abuse-related offences.

The Ontario attorney general’s office, in order to avoid the appearance of bias, appointed a prominent B.C. defence lawyer, Richard Peck, to serve as Special Prosecutor in the case.

The Dropping of Charges and the Special Prosecutor’s Public Statement

On May 25, 2010, the Special Prosecutor, concluding there was no reasonable likelihood of conviction, dropped the charges against Bryant. (A scanned copy of the proceedings can be found at The Darcy Sheppard Files a site maintained by the victim’s father.)

The procedure was unusual in that the announcement of the dropping of charges against Bryant was accompanied by a lengthy public account of the Crown’s reasons (including analysis of evidence) for doing so, even though those reasons and that evidence had never been tested by a trial. Also surprising was the effect that the submission by the defence of pre-trial “Scopelliti” evidence had upon to the prosecution’s case.

A Successful Pre-Trial “Scopelliti” defence

In Canada, the name “Scopelliti” attaches to the tactic by which a deceased victim’s character is impugned in order to strengthen the claim that the accused killed him in self-defence. In 1979, Antonio Scopelliti, an Italian immigrant who spoke almost no English, shot and killed two unarmed 17-year-old boys he believed were attempting to rob his Orillia, Ontario convenience store and gas bar. There were no witnesses and no video camera evidence. Scopelliti claimed self-defence, and his lawyer – Edward Greenspan – bolstered that claim by producing evidence of what he said was a pattern of prior aggressive and threatening behaviour by the two teenagers. The judge presiding over the Scopelliti trial ruled that evidence to be admissible.

Bryant’s defence team, after intensive detective work around Toronto, gathered affidavits from six motorists who claimed that they had been harassed by Darcy Sheppard in previous months and years. On May 25, 2010, the Special Prosecutor, concluding there was no reasonable likelihood of conviction, dropped the charges against Bryant. They also produced two compelling photos: one of a shirtless man who looked very much like Sheppard angrily confronting a motorist in a BMW; the second of the same man perched on the running board of the same vehicle, hanging from the side window. In the court proceedings, Special Prosecutor Peck declared that he, himself, found the “probative force” of these exhibits undeniable. But the relevance of those exhibits was never ruled upon by a judge. Nor had the circumstances in which they were gathered been tested in a trial.

Greenspan, reflecting on his precedent-setting case in a 1987 autobiography, made this comment: “The victim may not always be the party that is the most grievously hurt. Guilt or innocence do not depend on the severity of injuries and cannot be determined by medical reports alone. We cannot judge solely by the outcome of an incident who is to blame for it, or who is to blame for it more. Nor can we decide it on the basis of who complained first, who started crying “Thief!” or “Rape!”, or who has been charged by the police. If we could, we wouldn’t need courts and judges. These questions can only be answered by a judicial process in which all relevant evidence is placed before the triers of fact, according to law.” [1]

Light Thrown on the Case by FOI Release of Police Investigation Materials

Soon after the Crown dropped its charges against Bryant, Darcy Sheppard’s adoptive father filed a freedom of information request with the Toronto Police. Among the documents the police sent to Allan, Sr. in late 2012 was a collision reconstruction report. Its lead author was Detective Constable J. Vance; more than fifty other officers contributed to it. That report concludes: “Mr. Bryant and Mr. Sheppard shared responsibility in the death of Mr. Sheppard” [italics added]. It notes that [in the first two sequences of the accident] Bryant “struck Mr. Sheppard not once, but twice from a stopped position. Mr. Bryant’s final actions in the third collision sequence [the one that culminated in Sheppard striking a fire hydrant and his being thrown a further 25 feet or so along Bloor St. West] led to the death of Mr. Sheppard. Mr. Bryant’s failure to stop the Saab when Mr. Sheppard deliberately hung on to the side of the Saab, and driving [sic] his vehicle on the opposite side of the road in an attempt to dislodge Mr. Sheppard from the vehicle gave the appearance of a deliberate act according to witnesses.” Vance’s conclusion, anticipating Bryant’s claim that he had acted in self-defence, adds “[t]here was no physical evidence, or independent witness statements suggesting Mr. Sheppard affected the steering of the Saab, or anything to suggest he physically attacked Mr. Bryant.” Vance goes on, “Mr. Sheppard also is responsible for his actions that led up to the concluding incident [italics added]. All of these actions were unfortunate and avoidable.” (See The Darcy Sheppard Files) The court proceedings of May 25, 2010 made no mention of the existence of this report.

Further Light Thrown On the Case Since 2010

In 2012, Bryant published a memoir, 28 Seconds: A True Story of Addiction, Tragedy and Hope. It revealed the author’s hidden alcoholism during the years he served as a provincial cabinet minister. (Bryant claimed he had been sober for some time before the fatal incident.)

It also disclosed a more legally relevant detail: the statements made by Bryant and his wife concerning the night of Aug. 31, 2009 were not officially recorded until seven months after Darcy Sheppard’s death. They were set down in a “no-prejudice” setting.

The interviews took place (separately) in early April, 2010, and only after Henein’s team had shown the prosecution their entire Scopelliti file. The interviews, with defence lawyers present, were conducted under “without prejudice” conditions by Mark Sandler, the Toronto lawyer who was counsel for the Crown. Surely, much was at stake for Bryant in Henein’s first approach to the Special Prosecutor. Nevertheless, by early April both the defence and the prosecution had agreed that the account Bryant and his wife gave to Sandler could not be used against Bryant in a trial. (That is the legal meaning of a “without prejudice” interview.)

Possibly because 28 Seconds did no favours to Bryant’s public credibility, Marie Henein’s essay “Split-Seconds Matter” reiterates in broad brush the argument she made in 2010. [2] She recalls an “overwhelming” pressure in 2009-10 “to get the right result” [i.e. to win the case]: “The truth is that Michael Bryant was well-loved by the legal community. Many identified with him, many knew him personally, and many were utterly grief-stricken over his situation.”

Notes:

1. Edward Greenspan and George Jonas. Greenspan: The Case for the Defence. Toronto: MacMillan, 1987. 326

2. Marie Henein. “Split-Seconds Matter.” Tough Crimes: True Cases by Top Canadian Lawyers. Eds. C. D. Evans and Lorene Shyba. Calgary: Durance Vile Publications, 2014.

Essential Services and the Right to Strike

May 7, 2015 By Matt Gordon

On January 30, 2015, the Supreme Court of Canada decided Saskatchewan Federation of Labour v Saskatchewan (“SFL”). In a 5-2 decision, the Court determined that the Public Service Essential Services Act (“PSESA”), in restricting certain public sector workers’ rights to strike, violated freedom of association rights under section 2(d) of the Canadian Charter of Rights and Freedoms (“Charter”). Another piece of impugned legislation, the Trade Union Amendment Act (“TUAA”), which focuses on the union certification process and employer-employee communications, was found to be in accordance with the Charter.

The Supreme Court grappled with a central question that occupied most of the decision, both for the majority and dissent: does restriction on the right to strike violate s 2(d) of the Charter, and why? This past January, the majority of the Supreme Court came through with an emphatic decision that the workers’ right to strike is a fundamental Canadian value. This is a tough decision because it engages two contrasting Canadian values: the necessity for Canadians to have essential services like police officers and firefighters available at a moment’s notice, and the importance of employee voice in the workplace.

The extent of s 2(d) on labour relations has a tumultuous recent history, having been considered twice earlier by the Supreme Court since 2007. The Supreme Court’s decision in SFL demonstrates the difficulty associated with the application of Canada’s highest law to conditions of employment. There are still questions left unanswered which will likely be the impetus for upcoming litigation.

Background

SFL dates back to 2007, when Saskatchewan’s provincial government passed these two statutes. Both came into force on May 14, 2008. The Saskatchewan Federation of Labour and other unions challenged the constitutionality of PSESA and TUAA on the basis that they interfered with their right to freedom of association under s 2(d) of the Charter. The right to collective bargaining rooted in good faith negotiation was confirmed in 2007 in the BC Health Services case. By the time SFL went to trial in 2012, the Supreme Court had decided Ontario (Attorney General) v Fraser (“Fraser”). In Fraser, the Court clarified the rights accorded in BC Health Services through the determination that workers do not have the right to a particular type of collective bargaining or substantive outcome but still have the right to a good faith bargaining process of some kind.

The Saskatchewan Court of Queen’s Bench allowed the unions’ action with respect to PSESA but not with respect to TUAA. The Saskatchewan Court of Appeal, in a 3-0 decision, allowed the government’s appeal but not the union’s, declaring both PSESA and TUAA constitutional. At no point did any court consider TUAA’s certification process modification or newfound ability for employers to communicate “facts or opinions” to unionized workers to run afoul of freedom of association.

The SCC’s Decision in SFL

Justice Abella, writing for the majority, identified four key areas in which PSESA was either vague, overbroad, or invalid procedurally: The majority’s arguments are best summarized in this one sentence: “The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right.

an unclear definition of “essential services”, determined unilaterally by the government;
an overly broad definition of “public employer”, encapsulating any of the various Government of Saskatchewan agencies;
no recourse for the Saskatchewan Labour Relations Board to review these definitions; and
no explicitly stated alternative to the prohibited right to strike, such as a dispute resolution mechanism like arbitration.

She also delivered more philosophical reasons for the Court’s ultimate decision to enshrine the right to strike in the Charter:

It is consistent with an overarching trend in the courts leaning more toward workers’ rights ever since Reference Re Alberta Public Sector Employee Relations Act (“Re PSERA”), which SFL mostly overturned;
It is consistent with moderation of the employer-employee imbalance in Canadian labour relations; and
It is consistent with Canada’s international obligations, as well as the laws and constitutions of like-minded industrialized countries worldwide.

The majority’s arguments are best summarized in this one sentence: “The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction.”

The dissent, written by Justices Rothstein and Wagner, affirmed Re PSERA while putting SFL into a more procedural context. Their crucial points were that enshrining the right to strike in the Charter:

ignores the Supreme Court’s statement in RWDSU v Pepsi-Cola Beverages Canada (West) Ltd that courts should leave “delicate or political” labour relations questions to the legislatures;
extends the wording of s 2(d) of the Charter far past its limited “freedom of association”, especially in light of the absence of a codified right to strike in that section;
departs from the BC Health Services and Fraser decisions insofar as adds striking to the collective bargaining process where it was not there before; and
places too high a value on unclear international and irrelevant comparative law in shaping Canadian law.

These two intractably opposed positions are grounded in the constant struggle between employer and employee, judiciary and legislature, and precedent and evolving law.

Although SFL raises many questions in the areas of labour relations, constitutional and international law, as well as statutory interpretation and public policy, one of the labour relations questions looms large: Did the Supreme Court have to enshrine the right to strike in the Charter in order to acknowledge workers’ rights in Canadian society?

Arguably, the majority could have simply created a “strike or explain” doctrine in which any statute removing the right to strike for essential services employees must comply with certain criteria already set out in the majority’s decision. These two intractably opposed positions are grounded in the constant struggle between employer and employee, judiciary and legislature, and precedent and evolving law. Rather than say that such a statute presumptively violates s 2(d) of the Charter, placing the burden entirely on the government, the Court could have set out that such a statute without a dispute resolution mechanism or labour board oversight violates s 2(d). PSESA still would have been struck down, accomplishing the result of the day, but the decision would not overtly question the constitutionality of other, more balanced essential services statutes. An example is Ontario’s Crown Employees Collective Bargaining Act, 1993, which contains a limited right to strike, detailed essential services definitions and a labour relations board section, but is not used as a comparison by either the majority or the dissent in SFL. Put simply, rather than guarantee the presumptive right to strike, the majority could simply have guaranteed the availability of some form of dispute resolution. This is one of many possible alternate routes to upholding Charter values.

The majority’s view, however, was that the right to strike holds a special place in labour relations. In reaching this conclusion, the Court cited Mounted Police Association of Ontario v Canada (Attorney General) in discussing statutes that “disrupt the balance between employees and employer”. To the majority in SFL, in summary, “The right to strike is essential to realizing these [Charter] values and objectives through a collective bargaining process because it permits workers to withdraw their labour in concert when collective bargaining reaches an impasse.” It is solely the removal of the ability to withdraw services that factors into their s 2(d) analysis.

What Now?

This past January, the majority of the Supreme Court came through with an emphatic decision that the workers’ right to strike is a fundamental Canadian value. Beyond labelling PSESA an unclear statute that does not properly explain how it plans to honour Charter rights, the majority also discussed Canada’s evolving domestic and international obligations. The dissent was wary of expanding a bedrock document like the Charter past its original wording, and was also concerned with moving too much power from the legislatures to the judiciary. The swath of recent case law on the subject indicates that SFL may not be the last time the Supreme Court hears this sort of issue.

There will doubtless be future litigation over the meaning of SFL and any legislative exceptions to it. It may be dangerous to have, for example, healthcare workers engaging in large-scale strike activity, as was the case in Saskatchewan in 2001. The balance between essential services and the newly minted Charter right to strike presents more questions that can be answered in a single decision.

Bench Press 39-4: Consent is a Matter of Life and Death

April 23, 2015 By Teresa Mitchell

The British Columbia Court of Appeal recently ruled on a case involving an Alzheimer’s patient and her ability to give consent. It looked at a number of questions that will be raised as Canadians come to grips with the recent Carter decision of the Supreme Court of Canada (Carter v. Canada (Attorney General), 2015 SCC 5 (CanLII)). Mrs. Bentley had signed a document stating that she be allowed to die and not kept alive by artificial means or heroic measures if she suffered from extreme physical or mental disability. At the time of the court hearing, Mrs. Bentley was 83 years old in in advanced dementia. Her nursing home fed her by holding a spoon to her mouth and “prodding” her to eat. Her family was upset by this, and argued that this treatment amounted to battery. Battery at law is any non-trivial unwanted contact, but consent is a defence.

The Court of Appeal upheld a chambers judge’s decision that Mrs. Bentley’s capacity to consent was not an all or nothing concept and that her consent in the “here and now” could be presumed from her eating when prodded by staff. The judge wrote that “Mrs. Bentley’s previously expressed wishes are not valid in the face of her current consent.” He further found that if, in the alternative, Mrs. Bentley was not capable of giving consent, then a personal representative could make the decision, but only if feeding and hydration were defined as health care. Under B.C. law, these matters fell under personal care, and there is no guidance as to who the representative should be and the extent of their powers. The Court of Appeal’s consideration of consent, how it is expressed, how long it lasts, and how it can change with circumstances and time, are all valid questions as society looks at the other side of the equation: physician assisted death.

Bentley v. Maplewood Seniors Care Society, 2015 BCCA 91 (CanLII)

Bench Press 39-4: The Charter Protects Proms

April 8, 2015 By Teresa Mitchell

Two graduating high school students in Ontario launched a Charter challenge to their school principal’s decision to have a mandatory breathalyser test at their prom. They argued that the mandatory test was a violation of their s. 8 Charter right to be free of unreasonable search and seizure. Justice Himel of the Ontario Superior Court of Justice first decided that the Charter does apply to school events, ruling that the school authorities were carrying out a “quintessentially government function to which the Charter should apply.” Then, she decided that the students were not in a position to give informed consent to the breach of their Charter right, given that they had no meaningful choice between consenting to the test and missing a significant event in their lives. Finally, she ruled that students have a reasonable expectation of privacy over their breath samples and this was violated by the blanket imposition of the test. She concluded that the use of a blanket breathalyser test was highly intrusive and disproportionate given the nature of the suspected breaches.

Simon Gillies et al v. Toronto District School Board, 2015 ONSC 1038 (CanLII)

Bench Press 39-4: A Will Against Public Policy

March 26, 2015 By Teresa Mitchell

Law students are taught in Wills and Estates law that a Will can be set aside as being against public policy, but rarely does this possibility become a reality. However, in January, 2015 a Superior Court Justice in Ontario set aside the Will of Emanual Spence for exactly that reason. Rector Spence, a black pastor died in 2013 and in his Will stated: “I specifically bequeath nothing to my daughter, Verolin Spence, as she has had no communications with me for several years and has shown no interest in me as her father.” Verolin contested the will as being void on public policy grounds, but the trustee for the estate argued that the statement did not include language that was explicitly against public policy. At trial, however, Verolin and a long-time family friend provided evidence that the real reason for the exclusion was that Verolin had given birth to a child with a Caucasian father. At the time of her pregnancy, her father told her he was ashamed of her, refused to have anything to do with her or her child, and referred to his grandson as his daughter’s “bastard white son.” The judge found their evidence clear and uncontradicted, and concluded that the reason for disinheriting Verolin was based on a racist principle. As a result, the judge declared an intestacy, and the estate was split equally between Verolin and her sister.

Spence v. BMO Trust Company 2015 ONSC 615 (CanLII)