Canada: 2018: The SCC Year In Review

Last Updated: January 10 2019
Article by D. Lynne Watt

This article summarizes the 10 most significant Supreme Court cases of 2018, as selected by Gowling WLG's Supreme Court of Canada Services Group. The Supreme Court released 59 decisions last year, across a broad spectrum of legal subject-matter areas. It's always a difficult task to select 10 (and sometimes we have to sneak a couple extra cases because they are just too important to exclude). The decisions are not listed in rank order but, rather, grouped by subject-matter where possible.

1.  R v. Comeau, 2018 SCC 15

In R v Comeau, (popularly known as the "free the beer" case), the Supreme Court unanimously upheld the constitutional validity of a New Brunswick law restricting the importation of liquor from other provinces, while also commenting on the proper role of stare decisis in the common law courts.

Mr. Comeau, who had been arrested after importing a large quantity of beer and liquor into New Brunswick from Quebec, challenged the constitutionality of the NB law on the basis that section 121 of the Constitution Act, 1867 renders section 134(b) of the Liquor Control Act unconstitutional and therefore of no force or effect. Section 121 provides that "All Articles of the Growth, Produce or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the Provinces."

The New Brunswick Provincial Court found section 134(b) to be of no force and effect against Mr. Comeau and therefore dismissed the charge. In doing so, the trial judge relied on testimony from a historian who opined that the Supreme Court of Canada's interpretation of section 121, set out nearly a century ago in Gold Seal Ltd v Attorney-General for the Province of Alberta (1921), 62 SCR 434, was inconsistent with the intentions of the Constitution's drafters. The need to correct this error, the trial judge held, justified departing from this binding precedent.

The Court was thus called upon to decide two issues: (1) did the trial judge err in departing from a binding precedent and providing his own interpretation of section 121?; and (2) what is the proper interpretation of section 121?

With regards to the first issue, the Court noted that departing from vertical stare decisis on the basis of new evidence requires that the new evidence "fundamentally shif[t]" how jurists understand the legal question at issue. The high threshold was not met in this case. While historical evidence can be helpful in interpreting constitutional events, a re-assessment of historical events was not sufficient to constitute "evidence of social change."

The Court then proceeded to uphold section 134(b) and confirm the provinces' relatively broad authority in enacting trade-restricting legislation. Section 121 does not impose "absolute free trade across Canada", which would render any law restricting free trade and free movement of goods throughout Canada unconstitutional. Instead, in order to be struck down pursuant to section 121, a law must meet two conditions. First, there must be a tariff-like effect on cross-border trade. For example, a complete prohibition or burdensome import licenses would have the same effect as a tariff. Second, impeding trade must be the law's primary purpose.  

The Court found that section 134(b) does function like a tariff, meeting the first condition. However, its primary purpose was to restrict access to anynon-Corporation liquor within the framework of a broader liquor management scheme establishing a provincial monopoly on the sale of liquor within the boundaries of New Brunswick. Thus, section 134(b)'s effect on interprovincial trade is "only incidental in light of the objective." As a result, the second condition was not met and the Court quashed Mr. Comeau's acquittal.

Comeau upholds the status quo with regards to the regulation of interprovincial trade, while clarifying the scope of section 121's effect. Provinces may restrict imports from other provinces so long as the restriction fits within a broader legislative objective. The Court's comments on stare decisis also confirm the importance of precedent and the circumstances in which trial courts can overturn binding precedent.

2.  Reference re Pan Canadian Securities Regulation, 2018 SCC 48

The federal government and various provincial and territorial governments proposed to implement a national cooperative system for the regulation of capital markets in Canada (the "Cooperative System") with the following four main components:

  1. Uniform Provincial and Territorial Legislation: A model provincial and territorial statute (the "Model Provincial Act") dealing with the day-to-day aspects of the securities trade;
  2. Complementary Federal Legislation: A proposed federal statute (the "Draft Federal Act") aimed at preventing and managing systemic risk and establishing criminal offences relating to financial markets;
  3. A National Regulator: A national securities regulator (the "Authority") charged with administering this coordinated regime. The Authority would also have the power to make regulations under the supervision of the Council of Ministers.
  4. The Council of Ministers: The Authority and its Board of Directors would operate under the supervision of a Council of Ministers, comprised of the ministers responsible for capital markets regulation in each participating province and the federal Minister of Finance.

The system's framework was set out in an agreement (the "Memorandum") between the participating governments. The Memorandum contemplated that the Council of Ministers would play a role in making amendments to the proposed legislative enactments.

The Government of Québec referred the following two questions pertaining to the proposed Cooperative System to the Québec Court of Appeal:

  1. Does the Constitution of Canada authorize the implementation of pan-Canadian securities regulation under the authority of a single regulator, according to the model established by the most recent publication of the "Memorandum of Agreement regarding the Cooperative Capital Markets Regulatory System"?
  2. Does the most recent version of the draft of the federal "Capital Markets Stability Act" exceed the authority of the Parliament of Canada over the general branch of the trade and commerce power under subsection 91(2) of the Constitution Act, 1867?

A majority of the Québec Court of Appeal answered both questions in the negative. Various provinces appealed this decision: the Attorney General of Canada appealed on both questions; the Attorney General of British Columbia appealed on the first question; and the Attorney General of Québec appealed on the second question.

The Supreme Court of Canada unanimously held that question 1 should be answered in the affirmative and question 2 should be answered in the negative, thereby upholding the proposed national cooperative system.

Question 1

The Supreme Court of Canada held that the Constitution authorized the implementation of pan-Canadian securities regulation under the authority of a single regulator in accordance with the terms set out in the Memorandum. The Cooperative System does not improperly fetter the legislatures' sovereignty. The principle of parliamentary sovereignty preserves the provincial legislatures' right to enact, amend and repeal their securities legislation independently of the Council of Ministers' approval. As such, the legislatures remain free to reject the proposed statutes and any amendments. The Court also concluded that the Cooperative System does not involve an impermissible delegation of law-making authority. The Council of Minister's role in approving amendments to the Model Provincial Act is different from the delegation of primary legislative authority. As the provisions of the Model Provincial Act will only have the force of law if they are properly enacted by the legislature of a province, the Council of Ministers remained subordinate to the sovereign will of the legislature.

Question 2

After conducting the two-stage analytical framework for the review of legislation on federalism grounds, the Supreme Court of Canada concluded that the proposed Draft Federal Act was intra vires as within Parliament's power over trade and commerce under s. 91(2) of the Constitution Act, 1867.

On the question of characterization, the Court held that the pith and substance of the Draft Federal Act was to control systemic risk having the potential to create material adverse effects on the Canadian economy. With respect to classification, the Court relied on the framework established in General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641, and concluded that the Draft Federal Act addressed a matter of genuine national importance and scope relating to trade as a whole. It noted that the preservation of the integrity and stability of the Canadian economy clearly had a national dimension beyond provincial competence. The Draft Federal Act thus fell within Parliament's general trade and commerce power under s. 91(2) of the Constitution Act, 1867. Lastly, the Court concluded that there was nothing problematic about how the Draft Federal Act delegated the power to make regulations to the Authority under the supervision of the Council of Ministers.

3.  West Fraser Mills Ltd. v. British Columbia (Workers' Compensation Appeal Tribunal), 2018 SCC 22

This was an appeal by West Fraser Mills Ltd. ("West Fraser Mills") from a judgment of the British Columbia Court of Appeal, which affirmed the Workers' Compensation Appeal Tribunal's decision to impose an administrative penalty against West Fraser Mills in the context of the fatal injury of a tree faller who was working as an independent contractor within a forest licensed to West Fraser Mills. Pursuant to Part 3 of the Workers Compensation Act,West Fraser Mills is considered "owner" of the workplace.

The appeal gave rise to four sets of reasons as the Court continues to grapple with standard of review in the context of regulatory decision-making.  The Workers' Compensation Board had investigated the accident and determined that West Fraser Mills did not ensure workplace safety consistent with s. 26.2(1) of the Occupational Health and Safety Regulation. This regulation was adopted by the Board under s. 225 of the Act. The Board determined that an administrative penalty was warranted under s. 196(1) of the Act. The Tribunal's decision was upheld at the British Columbia Supreme Court and Court of Appeal.

Writing for the majority, McLachlin C.J. dismissed the appeal. Section 225 of the Act allows the Board to make regulations associated with workplace safety. As long as the chosen regulation is a reasonable exercise of this delegated authority, the Board may choose to adopt it. As s. 26.2(1) has a clear connection to workplace safety, the Board can adopt it. The regulation also fits within the context of the whole statute, which broadly promotes workplace safety. Two external contextual factors are also relevant. First, the Board adopted s. 26.2(1) in response to increased fatalities in the forestry sector which is clearly relevant to the aims of s. 225 of the Act. Second, s. 26.2(1) is connected to an employer's responsibility to ensure the workplace is safe for their workers. The Tribunal's broad interpretation of s. 196(1) of the Act, the administrative penalty provision,was not patently unreasonable. Imposing an administrative penalty will further the statutory goal of promoting workplace safety and deterring future accidents. The interpretation appreciates the complexity of maintaining workplace safety and that s. 196(1) can apply in situations where the employer does not fail to comply with specific obligations set out in the Act.

Justice Côté, dissenting, determined that it is unreasonable to impose an administrative penalty in this case. In adopting s. 26.2(1) of the Regulation, the Board exceeded the scope of its delegated mandate and legislative powers by conflating the duties of owners and employers. As the legislative scheme defines "owner" and "employer" as two separate entities, an administrative penalty should not have been imposed.

Justice Brown, dissenting, determined that the Board acted within its legislative authority when it adopted s. 26.2(1) of the Regulation, but it was patently unreasonable to impose an administrative penalty on West Fraser Mills for the same reasons as Justice Côté.

Justice Rowe, dissenting, agreed with the majority that the Board acted within its legislative authority when it adopted s. 26.2(1) of the Regulation, but stated that understanding the scope of jurisdiction requires legal analysis. It was patently unreasonable to impose an administrative penalty on West Fraser Mills for the same reasons as Justice Côté.

4.  Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 and

Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33

LSBC v TWU

Trinity Western University (TWU) and Brayden Volkenant appealed the Law Society of British Columbia's (LSBC) decision not to accredit TWU's proposed law school.  TWU is an evangelical Christian university that requires its students and faculty to adhere to a religious based code of conduct known as the Community Covenant Agreement (Covenant).  The Covenant prohibits "sexual intimacy that violates the sacredness of marriage between a man and a woman."  The LSBC, the regulator of the legal profession in British Columbia, voted to hold a referendum on the issue of TWU law school approval.  The referendum resulted in a declaration that TWU would not be an approved faculty of law.  The issue at the Supreme Court was whether a law society could deny the accreditation of a religious-based law school on the basis that the school discriminates against LGBTQ individuals by requiring students to sign the Community Covenant prohibiting sexual intimacy except between married heterosexual couples

The LSBC acts according to a statutory mandate, as provided by the Legal Profession Act.  It has been granted the privilege of self-government in exchange for a corresponding obligation to self-regulate in the public interest.  LSBC's determination as to the appropriate approach to furthering its broad public interest mandate is entitled to deference.  The LSBC is entitled to consider inequitable barriers to entry into law schools as imposing inequitable barriers to entry into the profession generally.  Approval of the proposed law school would negatively impact equitable access to, and diversity within, the legal profession.  LGBTQ individuals would be harmed.  Personal and inalienable characteristics, entirely unrelated to merit, cannot provide a reasonable grounds for limiting access to membership to the legal profession.  In interpreting the public interest as being supported by ensuring diversity in the legal profession, the LSBC acted reasonably.  LSBC's consideration of an inequitable admissions policy was a valid deployment of its statutory mandate.

To be reasonable, a decision must fall within a range of possible and acceptable outcomes, while simultaneously exhibiting justification, transparency and intelligibility within the decision-making process.  However, the LSBC was not required to give formal reasons explaining the decision resulting from its referendum.

While the TWU community's s. 2(a) religious freedom Charter rights were limited by the LSBC's decision, the decision nevertheless reflected a proportionate balancing exercise by the LSBC.  Indeed, religious freedom contains a communitarian element.  Members of the TWU community sincerely believe that studying in a community guided by a religious covenant contributes to their spiritual development.  Notwithstanding that a s. 2(a) infringement on TWU's religious freedom was established, the limitation imposed on TWU was incomparable to the profoundly severe interference on LGBTQ equality rights.  The LSBC was effectively faced with two options – approve or not approve.  In declining to approve TWU's law school, the LSBC's decision represented a proportionate balancing.  While religious freedom was interfered with only to a minor extent, the LSBC's decision prevented a risk of significant harm to LGBTQ people who may choose to attend TWU's proposed law school.  Though the TWU community has the right to determine its rules of conduct, it cannot impose the values its Covenant seeks to further on all members of the community.  Where religious freedom impacts others, a fundamental premise of religious freedom has been violated – that religion must be practiced according to one's own volition.  Coercing community members to conform to prescribed religious practices is not a valid exercise of s. 2(a) rights.  Therefore, in voting not to approve TWU's law school, the LSBC chose one of the two options available to it.  Its decision was reasonable.

TWU v LSUC

Similar to the LSBC, the Law Society of Upper Canada (LSUC) decided not to accredit TWU's proposed law school.  LSUC's decision reflected a proportionate balancing between the limitation on TWU's s. 2(a) rights and LSUC's overarching statutory objectives.

LSUC has been delegated the statutory authority to decide who may and who may not be licensed in Ontario.  It is additionally empowered to set conditions pursuant to such licenses.  LSUC received and considered written submissions from TWU, members of the legal profession, members of the public and reports from the Federation of Law Societies of Canada.  Ultimately, the Benchers voted not to accredit TWU's law school by a vote of 28-21.  TWU sought judicial review of LSUC's decision.

The Law Society Act requires LSUC to consider the overarching statutory objective of protecting the public interest in determining requirements for admission to the legal profession.  Because LSUC is a self-governing profession, it is owed deference regarding how a particular discretionary decision best furthers its objectives.  LSUC interpreted its duty to uphold and protect the public interest as enabling it to preclude TWU's approval because the mandatory Covenant imposed inequitable barriers on entry to law school, and therefore on entry into the legal profession.  The approval of TWU's law school would negatively affect equitable access to, and diversity within, the legal profession, a notion that is fundamentally at odds with the public interest.  LSUC was entitled to contemplate these considerations in arriving at its conclusion that denying TWU's law school accreditation was within the ambit of its duty to uphold the public interest.  LSUC, in its role as a statutorily mandated public actor, has an interest in protecting values such as equality, inclusivity and human rights in carrying out its functions.

Administrative decisions affecting Charter protections, like that made by the LSUC, are reviewed based on the Doré/Loyola framework.  The first question posed is whether the decision engages the Charter by limiting a particular Charter protection.  If Charter protections are indeed engaged, the next question becomes whether the decision reflects a proportionate balancing of the Charter protections involved.  To demonstrate a limitation on s. 2(a), TWU must establish that it has a sincere belief or practice that has a nexus with religion.  It must additionally show that the impugned decision manifests in an inability to act in accordance with that particular practice or belief in a manner that is more trivial and insubstantial.  The decision not to accredit TWU's proposed law school constitutes a limitation on the religious freedom of TWU community members.  They have a sincere belief that studying in a community defined by religious beliefs, in which members adhere to a particular set of religious rules, contributes to their spiritual development in a meaningful way.  However, the LSUC did not limit TWU's religious freedom to a large extent – it only interferes with TWU's ability to operate a law school in which students must sign a mandatory Covenant.  Conversely, the LSUC decision significantly advanced the objectives of ensuring equal access to, and diversity within, the legal profession in a significant way.  Religious freedom can be inhibited where the belief or practice harms or interferes with the rights of others.  LSUC's decision gave sufficient consideration to all Charter protections in issue, and reflected a proportionate balancing of TWU's religious rights and the equality rights of LGBTQ individuals.

5.  Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40

In this case, the Supreme Court of Canada considered whether the duty to consult applied to the law-making process. Since Haida Nation v British Columbia, the duty to consult requires the Crown to consult and, where appropriate, accommodate Aboriginal peoples before pursuing action that may adversely affected asserted or established rights under s. 35 of the Constitution Act, 1982. The Supreme Court of Canada ultimately found that the duty to consult does not apply to the law-making process. The majority's reasoning found that the separation of powers and parliamentary sovereignty meant that it was rarely appropriate for the courts to scrutinize the law-making process.

In April 2012, two pieces of omnibus legislation with significant effects on Canada's environmental protection regime were introduced in Parliament, Bill C-38 and Bill C-45. The Mikisew brought an application for judicial review in Federal Court, arguing that the Crown had a duty to consult them on the development of the omnibus bills.

The reviewing judge found that the duty to consult had been triggered. On appeal, the majority of the Federal Court of Appeal concluded that the reviewing judge erred in conducting a judicial review of a legislative action contrary to the Federal Courts Act. The reviewing judge's decision was inconsistent with the principles of parliamentary sovereignty, the separation of powers, and parliamentary privilege. The courts cannot supervise the legislative process.

Chief Justice Wagner and Justices Karakatsanis and Gascon reasoned that the Federal Court had exceeded its jurisdiction. It did not have the required statutory grant of jurisdiction. Section 17(1) of the Federal Courts Act provides that the Federal Court has concurrent original jurisdiction where relief is claimed against the Crown. This does not extend to executive actors when they are exercising legislative power. The Mikisew, in this case, are challenging actions which are uniformly legislative in character. Sections 18 and 18.1 of the Federal Courts Act only grant the Federal Court jurisdiction to judicially review action taken by a "federal board, commission or other tribunal". When developing legislation, Ministers do not act as a federal board, commission or other tribunal and their actions are immune from judicial review. Furthermore, the development of legislation by ministers is legislative action that does not trigger the duty to consult. The Crown conduct sufficient to trigger the duty to consult has only been found to include executive action or action taken on behalf of the executive. The door was left open for the courts to recognize other protections in future cases. The duty to consult, while inapplicable in the legislative sphere, is not the only means to give effect to the honour of the Crown.

Justices Abella and Martin agreed that judicial review is not available for the actions of federal ministers in the parliamentary process under the Federal Courts Act. However, they disagreed on whether the duty to consult had been triggered. The obligation of the honour of the Crown gives rise to a duty to consult that applies to all contemplated government conduct with the potential to adversely impact asserted or established Aboriginal and treaty rights, including legislative action. The honour of the Crown is always at stake in its dealings with Indigenous peoples. The question is not whether a duty to consult is appropriate in the circumstances, but whether the decision is one to which the duty to consult applies. Parliamentary sovereignty and parliamentary privilege cannot displace the honour of the Crown.

Justice Brown found that even absent the jurisdictional bar, the separation of powers, parliamentary privilege, the scope of judicial review and the existing jurisprudence on the duty to consult all lead to the conclusion that the Mikisew's application for judicial review cannot succeed. The entire law-making process – from initial policy development to and including royal assent – is an exercise of legislative power which is immune from judicial interference. The only procedure due to any citizen of Canada is that proposed legislation receive three readings from the Senate and House of Commons and that it receive royal assent. The development, introduction, consideration and enactment of bills is not Crown conduct which triggers the duty to consult. Consequently, judicial review of the legislative process, including post-facto review of the process of legislative enactment, for adherence to s. 35 of the Constitution Act, 1982, and for consistency with the honour of the Crown, is unconstitutional.

Justices Moldaver, Côté, and Rowe agreed with Justice Brown. Furthermore, when legislation has been adopted, those who assert that the effect of the legislation is to infringe s. 35 rights have their remedies under the infringement and justification framework set out in R v Sparrow.

In the result, the Supreme Court of Canada dismissed the appeal. The Federal Court was not validly seized of the Mikisew's application for judicial review in this case.

6.  Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4

The Williams Lake Indian Band has traditional territory near Williams Lake. The territory was never protected under the pre-emption system in place during Colonial times. After Confederation, Canada took responsibility for creation of Indian reserves. The Federal Crown acknowledged that pre-emption in respect of the Band's territory had been a  mistake but did not want to interfere with the rights of the existing settlers on those lands. Instead, the Crown gave the Band another tract of land as a reserve.

The Band filed a claim to compensation under the Specific Claims Tribunal Act for losses arising from these events.  Specific Claims Tribunal decided that Canada had owed, and breached, fiduciary obligations to the Band in relation to the protection of its land from pre-emption. It further found that Canada could be held responsible under the Act for the Band's pre Confederation claim. Therefore, the Band's specific claim was valid under the Act and the matter could proceed to the compensation stage.

The Supreme Court held that the standard of review of the Specific Claims Tribunal decisions is reasonableness and that the Tribunal was reasonable in concluding that there had been a breach of fiduciary duty owed to the Band. The Court confirmed that the relationship between the Crown and Indigenous peoples is fiduciary in nature, even prior to Confederation. That fiduciary obligation requires that the Crown's discretionary control be exercised in accordance with the standard of conduct to which equity holds a fiduciary, which is "that of a man of ordinary prudence in managing his own affairs".  It was reasonable for the Tribunal to conclude that federal Crown officials with knowledge of the circumstances surrounding the Williams Lake pre emptions and the band's situation did nothing to challenge the pre emptions. Their inaction and the decision making that led to the eventual allotment of a reserve to the band elsewhere fell short of fulfilling the Crown's fiduciary obligations.

7.  R. v. Vice Media Canada Inc., 2018 SCC 53

A media organization and one of its journalists (together, "Vice Media") wrote and published three news stories in 2014 based on exchanges between a journalist and a source. The source was a Canadian man suspected of having joined a terrorist organization in Syria. The articles contained statements by the source. If true, these statements could provide strong evidence implicating the source in multiple terrorism offences.

The RCMP successfully applied ex parte to the Ontario Court of Justice for an order directing Vice Media to produce the screen captures of the messages exchanged with the source. In response, Vice Media brought an application in the Superior Court to quash the order. The reviewing judge dismissed Vice Media's challenge to the production order, holding that it was open to the authorizing judge to conclude that the media's interest was outweighed by the public interest in obtaining reliable evidence of a very serious terrorism offences. The Court of Appeal dismissed Vice Media's appeal.

The Supreme Court (5-4) dismissed Vice Media's further appeal. The production order was properly issued and should be upheld.

The majority (Justices Moldaver, Gascon, Côté, Brown, and Rowe) redefined and applied the framework for considering applications for search warrants and production orders relating to the media, as set out in Canadian Broadcasting Corp v Lessard and its companion case, Canadian Broadcasting Corp v New Brunswick (Attorney General). It was found that the factors of this framework should be reorganized; the effect of prior partial publication of the materials sought should be assessed on a case-by-case basis; and a modified standard of review should be adopted when reviewing an order related to the media that was made ex parte.

The Lessard framework, which seeks to balance the state's interest in the investigation and prosecution of crime and the media's right to privacy in gathering and disseminating the news, provides nine factors. These were re-organized into a four-part analysis: 1) the authorizing judge must consider whether to exercise his or her discretion to require notice to the media; 2) all statutory preconditions must be met; 3) the authorizing judge must balance the state's interest in the investigation and prosecution of crimes and the media's right to privacy in gathering and disseminating the news; and 4) if the authorizing judge decides to exercise his or her discretion to issue the order, he or she should consider imposing conditions to ensure that the media will not unduly be impeded in the publishing and dissemination of the news.

Rather than being assessed as an independent factor to be considered on its own, prior partial publication of the information sought should be treated as part of the overall Lessard balancing exercise. The effect of prior partial publication should now be assessed on a case-by-case basis. In determining the effect of prior partial publication, the authorizing judge should consider all of the circumstances, including the nature of the materials (both published and unpublished) and how must of the full body of materials has already been published.

The standard of review to be applied to ex parte production orders targeting the media should be a modified version of the standard set out in R v Garofoli, which is highly deferential and, in some cases, works unfairness due to the absence of the media at the authorization stage. Instead, the following test should be applied: if the media points to information not before the authorizing judge that, in the reviewing judge's opinion, could reasonably have affected the authorizing judge's decision to issue the order, then the media will be entitled to a de novo review. If the media fails to meet this threshold required, then the traditional Garofoli standard will apply.

In applying the refined Lessard framework, the production order in this case should not be set aside. It was found that the appeal could readily be disposed of without rethinking s. 2(b) of the Charter.

In dissent, Chief Justice Wagner and Justices Abella, Karakatsanis and Martin found that when the state seeks to access information in the hands of the media through a production order, both the media's section 2(b) and section 8 Charter rights are engaged. A rigorously protective and harmonized analysis is therefore required. The media's s. 2(b) rights include not only the right to transmit news and other information, but also the right to gather this information without undue interference from government. This includes protection for journalistic work product.

What is now required is a proportionality inquiry showing that the benefit of the state's interests in obtaining the information outweighs the harmful impact on the press' constitutionally protection s. 8 and s. 2(b) rights. While the issue of notice is ultimately a matter within the discretion of the authorizing judge, it is highly preferable in most cases to proceed on notice to the media. Where there are exigent circumstances or a real risk of the destruction of evidence, notice may not be feasible, but these cases will be rare. In proceedings where the press is involved, and there has been no notice before the authorizing judge, the press will not have had the opportunity to explain how the order would interfere with its work until after the authorization is made. In such cases, the press is entitled to a de novo balancing on the review.

8.  R. v. Boudreault, 2018 SCC 58

The Supreme Court of Canada considered four appeals by seven individuals concerning the constitutionality of the mandatory victim surcharge imposed under section 737 of the Criminal Code. Under this section (introduced by the Harper government), judges were required to impose the fee for every summary or indictable conviction, with no discretion to waive or decrease the fee, even if its imposition would cause undue hardship to the convicted person. The imposition of the surcharge could only be appealed if the fee exceeded the statutory minimum.

Each of the applicants were living in poverty and enduring addiction, mental health, disability and/or precarious housing situations. They  challenged the provision under sections 7 and 12 of the Charter of Human Rights and Freedoms.

The Supreme Court allowed the appeal and held that the mandatory victim surcharge violated section 12 of the Charter, and  could not be saved under section 1 of the Charter. The Court declined to assess the violation under section 7. 

For the Court, the victim surcharge constituted a "constitutionally impermissible form of cruel and unusual punishment" with a particular view to the impact on the applicants as economically marginalized persons.  The victim surcharge constituted punishment as it flowed directly and automatically from the conviction. Parliament's intention for the surcharge to constitute punishment for the offender was confirmed by the express mandate in section 747 that the surcharge be applied "in addition to any other punishment".   The surcharge constituted cruel and unusual punishment as it creates egregious impacts that are contrary to the principles of proportionality in sentencing. In determining whether a sentence is grossly disproportionate, the Supreme Court assessed whether the victim surcharge was grossly disproportionate, firstly, in relation to the specific claimant and to the "reasonable hypothetical offender" and secondly, in relation to the principles of sentencing. Drawing on the hardship, precarious housing and economic marginalization of the claimants and experiences representative of others who may be impecunious before the courts, the surcharge was found to be grossly disproportionate. Accordingly, the Court invalidated section 747, with immediate effect.

9.  Rogers Communications Inc. v. Voltage Pictures, LLC, 2018 SCC 38

In the context of a copyright infringement action, Voltage Pictures had sought a Norwich order compelling Rogers to disclose information about an unknown person who had engaged in illegal file sharing of its films online in contravention of the Copyright Act (Act). The case concerns the relationship between the steps that an internet service provider ("ISP") such as Rogers must take to comply with the "notice and notice" regime contained in ss. 41.25 and 41.26 of the Act and the steps that it would have to take to comply with a Norwich order, and implications of that relationship for an ISP's ability to recover the costs of complying with a Norwich order. The motion judge allowed Rogers to recover the costs of all steps to comply with the Norwich order. The Federal Court of Appeal confined its recovery to the reasonable costs of the actual act of disclosure.

The Supreme Court of Canada allowed the appeal. While there is a statutory prohibition on the recovery of costs arising from the notice and notice regime, an ISP's obligation under a Norwich order to identify a person is distinct from its obligation under the notice and notice regime to ensure the accuracy of its records that allow the identity of the person to be determined. The copyright owner is only entitled to that information under a Norwich order, which falls outside the ISP's obligations under the notice and notice regime. As such, an ISP is entitled to recover the reasonable costs of steps that are necessary to discern a person's identity from accurate records retained under the Act to the extent that they do not overlap with the duties imposed under the Act.  It will be a matter for the judge hearing the Norwich motion to determine which costs are recoverable by the ISP and which costs relate to the obligations imposed on the ISP by the Act and are not, therefore, recoverable.

10.  Office of the Children's Lawyer v. Balev, 2018 SCC 16

The Convention on the Civil Aspects of International Child Abduction seeks to protect children by enforcing custody rights and securing children's quick return to their country of "habitual residence".  This case dealt with the proper approach to determining a child's "habitual residence". 

The parents had married in Ontario, subsequently moved to Germany and had two children. The parents later separated and decided the mother would take the children to Canada for 16 months for schooling purposes. The parents signed an agreement to this effect, specifying that the move would be temporary.  At the end of the 16 months, the mother did not return the children to Germany. The father asked the Ontario court to order the return of the children.  The mother argued that the children's habitual residence was Ontario because of the time they had spent here.  The father argued that it was Germany.  The children were eventually returned to Germany pursuant to an order of the Ontario court. Some months thereafter, the German courts granted the mother sole custody of the children and the children and mother returned to Canada.

While the case was technically moot because of the order of the German courts, the Supreme Court of Canada elected to hear the appeal to provide guidance on how to determine a child's habitual residence in future cases. The Court held that courts should look to all relevant considerations to determine a child's habitual residence. While the Court found there was no definitive list of factors, courts could consider the child's links to, and circumstances in each country, as well as the circumstances and intentions of the parents and the views of the children. In addition, a court can decline to return a child if an exception listed in the treaty applies.

The Court also made an important comment about the task of interpreting international treaties:  it is an overriding interpretive principle that where domestic legislation is enacted to implement an international treaty aimed at multinational harmonization, an interpretation of that domestic legislation that preserves harmony among adhering countries is to be preferred.  The Court concluded that it was permissible and appropriate to consider how foreign courts had interpreted the phrase "habitual residence" in deciding how it should be interpreted in Canada.

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Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions