Friday, March 27, 2015

Cooperative federalism does not limit otherwise proper governmental actions

Quebec (Attorney General) v.Canada (Attorney General), 2015 SCC 14:

The principle of cooperative federalism, therefore, cannot be seen as imposing limits on the otherwise valid exercise of legislative competence: Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373, at p. 421.  This was recently reiterated by this Court in its unanimous opinion in Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837, at paras. 61-62:

While flexibility and cooperation are important to federalism, they cannot override or modify the separation of powers.  The Secession Referenceaffirmed federalism as an underlying constitutional principle that demands respect for the constitutional division of powers and the maintenance of a constitutional balance between federal and provincial powers.

In summary, notwithstanding the Court's promotion of cooperative and flexible federalism, the constitutional boundaries that underlie the division of powers must be respected.  The "dominant tide" of flexible federalism, however strong its pull may be, cannot sweep designated powers out to sea, nor erode the constitutional balance inherent in the Canadian federal state. [Emphasis added.]

Wednesday, March 25, 2015

Court unable to set time to pay victim fine surcharge unless Regulation absent

R. v. J.Q., 2015 NUCJ 09: 

[52] This case was before me during the Court's sitting in Pangnirtung. In the course of that sitting, several accused asked me to grant them time to pay the surcharge which Parliament had imposed on them in s. 737. It appears, however, that s. 737 gives the Court no discretion even to do that.

[53] Criminal Code Section 737(4), provides that where, as here, no fine is imposed, the surcharge is payable "within the time established by the lieutenant governor in council of the province in which the surcharge is imposed for payment of any such surcharge." Counsel, both Crown and Defence, appearing at the Pangnirtung sitting were not aware of the Nunavut equivalent of the "lieutenant governor in counsel of the province" having made any provision in response to s. 737(4). They invited me, however, for the sake of practicality, to make an order granting time to pay to the offenders upon whom liability for Parliament's surcharge fell.

[54]  In the absence of any other practical way to deal with this detail (which it appears Parliament has imperfectly dealt with) I assumed an inherent jurisdiction to do what is reasonable and just and granted the offenders 6 months to pay. 

Monday, March 23, 2015


Failure to put election to accused a jurisdictional failure

R. v. Shia, 2015 ONCA 190:

[32]       In Varcoe, this court considered whether s. 686(1)(b)(iv) could save a harmless failure to put an accused to his election under s. 536(2) of the Criminal Code. There, as here, the accused was charged with an indictable offence that required an election. There, as here, the jurisdiction of the trial court over the offence depended entirely on the election of the accused to be tried by that court. This court held that, in the absence of an election, or valid waiver of it, the trial court lacked jurisdiction over the offence and the proviso in s. 686(1)(b)(iv) could not be applied: Varcoe, at para. 22; Mitchell, at para. 29.

Friday, March 20, 2015

A secular state respects religious differences, it does not seek to extinguish them

Loyola High School v. Quebec (Attorney General), 2015 SCC 12:

[43]                          The context before us — state regulation of religious schools — poses the question of how to balance robust protection for the values underlying religious freedom with the values of a secular state.  Part of secularism, however, is respect for religious differences.  A secular state does not — and cannot — interfere with the beliefs or practices of a religious group unless they conflict with or harm overriding public interests.  Nor can a secular state support or prefer the practices of one group over those of another: Richard Moon, "Freedom of Religion Under the Charter of Rights : The Limits of State Neutrality" (2012), 45 U.B.C. L. Rev.497, at pp. 498-99.  The pursuit of secular values means respecting the right to hold and manifest different religious beliefs.  A secular state respects religious differences, it does not seek to extinguish them.

[44]                          Through this form of neutrality, the state affirms and recognizes the religious freedom of individuals and their communities.  As Prof. Moon noted:

Underlying the [state] neutrality requirement, and the insulation of religious beliefs and practices from political decision making, is a conception of religious beliefs or commitment as deeply rooted, or commitment as an element of the individual's identity, rather than simply a choice or judgment she or he has made.  Religious belief lies at the core of the individual's worldview.  It orients the individual in the world, shapes his or her perception of the social and natural orders, and provides a moral framework for his or her actions. Moreover, religious belief ties the individual to a community of believers and is often the central or defining association in her or his life.  The individual believer participates in a shared system of practices and values that may, in some cases, be described as a "way of life". If religion is an aspect of the individual's identity, then when the state treats his or her religious practices or beliefs as less important or less true than the practices of others, or when it marginalizes her or his religious community in some way, it is not simply rejecting the individual's views and values, it is denying her or his equal worth. [Footnote omitted; p. 507.]

[45]                          Because it allows communities with different values and practices to peacefully co-exist, a secular state also supports pluralism.  The European Court of Human Rights recognized the relationship between religious freedom, secularism and pluralism in Kokkinakis v. Greece, judgment of 25 May 1993, Series A No. 260-A, a case about a Jehovah's Witness who had been repeatedly arrested for violating Greece's ban on proselytism.  Concluding that the claimant's Article 9 rights to religious freedom had been violated, the court wrote:

     As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a "democratic society" within the meaning of the Convention.  It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned.  The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. [p. 17]

See also Metropolitan Church of Bessarabia v. Moldova, No. 45701/99, ECHR 2001-XII.

Wednesday, March 18, 2015

Consent to physical force in sports

Leighton v. Best, 2015 ONCA 180:

[9]          Physical contact is inherent in some sports, such as hockey. Players can be taken to consent to a certain level of contact and to accept the risks of that contact, unless the conduct falls outside the scope of such presumed consent. As observed by Cunningham J. in Dunn v. University of Ottawa, [1995] O.J. No. 2856 (C.J.), at para. 14, "Even if contact is made outside the rules of the game, there can be no liability unless the player can establish that the Defendant knew he was breaking the rules, and had formed a deliberate resolve to injure or that he was reckless as to the consequences of his actions."