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Top Five 2014

Each year at OJEN’s Toronto Summer Law Institute, a judge from the Court of Appeal for Ontario identifies five cases that are of significance in the educational setting. This summary, based on these comments and observations, is appropriate for discussion and debate in the classroom setting.

These summaries of important legal cases were presented by the Honourable Mr. Justice Russell Jurianz at OJEN’s 2014 Summer Law Institute.

1. Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 SCR 1101

Prostitution is not illegal in Canada, but a number of activities related to prostitution were against the law. In 2007, three sex workers challenged these laws, arguing that criminal prohibitions made it virtually impossible for them to conduct their legal business safely. Their case proceeded through the lower and appeal courts and ultimately arrived at the Supreme Court of Canada (SCC). The SCC issued a final decision on whether three Criminal Code provisions deprived sex workers of their right to security of the person under s. 7 of the Canadian Charter of Rights and Freedoms. The full decision is available here.

2. Tsilhqot’in Nation v. British Columbia, 2014 SCC 44

Aboriginal title is a legal concept which recognizes the right of indigenous groups to control and benefit from their traditional lands even after colonial nations have claimed sovereignty over a broad territory. In Canada, this has led to legal struggles over title claims. To make a claim for Aboriginal title, indigenous groups have been required to show ongoing occupation of the lands in question. In this case, the Supreme Court of Canada (SCC) considered the legal definition of “occupation” and clarified the rights and responsibilities of Aboriginal and government groups concerning title lands. The full decision is available here.

3. R. v. Spencer, 2014 SCC 43

Matthew David Spencer used peer-to-peer file sharing software to download and store child pornography. Under a clause in the Personal Information Protection and Electronic Documents Act (PIPEDA), police obtained identifying information from Spencer’s internet service provider without a warrant, and he was convicted of child pornography offenses. Spencer argued that request for his information violated his right to privacy and infringed his right against unreasonable search and seizure under the Canadian Charter of Rights and Freedoms. While Spencer’s conviction was ultimately upheld, the Supreme Court of Canada (SCC) agreed that the warrantless search was a Charter violation, and clarified the law concerning privacy and disclosure of internet user information. The full decision is available here.

4. Reference re Senate Reform, 2014 SCC 32, [2014] 1 SCR 704

The Canadian Senate has been subject to calls for reform since its beginnings. In 2013, the Government of Canada brought several questions to the Supreme Court of Canada (SCC) in an attempt to determine whether Parliament had the authority to reform the Senate and, if so, what steps would be necessary to effect such change. In answering these questions, the Supreme Court of Canada (SCC) carefully considered the nature and function of Canadian federalism and its importance for constitutional law. The full decision is available here.

5. Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37, [2014] 2 SCR 33

Under Canadian immigration law, a national security certificate is a legal mechanism that allows the government to detain and deport a foreign national or permanent resident it suspects is connected to terrorism or other national security threats. Unlike a criminal process, a suspect need not be charged and the government is not required to fully disclose its evidence to the suspect or their lawyers. Following a series of constitutional challenges, the government was forced to amend the procedure and appoint a “special advocate” to the accused, who would have access to the full evidence but was still limited in how much could be shared with the detainee. Mohamed Harkat challenged the constitutionality of the special advocate regime, arguing that it still violated his right to a fair trial and unjustifiably infringed his liberty rights under s. 7 of the Canadian Charter of Rights and Freedoms. In deciding the matter, the Supreme Court of Canada weighed national security risks against the capacity of the special advocate to protect the rights of a detainee and emphasized the role of the hearing judge in safeguarding procedural fairness. The full decision is available here.

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