Jessica Orkin

Two federal inmates serving indeterminate sentences applied for reclassification from medium- to minimum-security facilities.

Despite recommendations from their case management teams and wardens, administrative decision-makers denied the reclassifications.

The appellants sought habeas corpus ad subjiciendum with certiorari in aid, challenging the denials as unlawful deprivations of their residual liberty.

The majority held that a decision to deny a lower security reclassification constitutes a deprivation of liberty reviewable by way of habeas corpus, as it has the qualitative effect of restricting liberty without requiring proof of a change in status quo or a pre-existing legal entitlement to the less restrictive state.

The dissent maintained that habeas corpus is only available where an inmate has acquired a legal entitlement to the lower security classification, consistent with the framework in Dumas.

As both appellants had been reclassified and transferred by the time the appeal was heard, the Court allowed the appeal on the moot legal question of public importance.

In the context of CCAA proceedings, the court-appointed Monitor sought a Mareva injunction against a former executive, his company, and his spouse.

The Monitor alleged that the executive had misappropriated millions of dollars from the insolvent companies for personal use, including purchasing a yacht, private jet fractional interests, and real estate, while failing to remit significant taxes.

The court found a strong prima facie case of fraud and breach of fiduciary duty against the executive and his company, and inferred a real risk of asset dissipation given their ties to St. Lucia.

An uncapped Mareva injunction was granted against them.

However, the court found insufficient evidence of actual knowledge to establish a strong prima facie case of knowing assistance or receipt against the spouse, and instead ordered her to provide a statement of worldwide assets.

The appellants, Frank Dorsey and Ghassan Salah, appealed a Superior Court decision that denied their applications for habeas corpus to challenge the Correctional Service of Canada's refusal to reclassify and transfer them to lower-security institutions.

The application judge found that these denials did not constitute a deprivation of residual liberty reviewable by habeas corpus.

The Court of Appeal, in a majority decision, upheld the application judge's finding, concluding that a refusal to reclassify an inmate to a lower security level, without a change in the conditions of detention or an entitlement to greater liberty, does not amount to a deprivation of residual liberty for the purposes of habeas corpus.

The Court affirmed that the existing grievance procedure and judicial review in the Federal Court are the appropriate avenues for such challenges.

The dissenting judge argued that an unlawful reclassification refusal could crystallize an initially lawful deprivation of liberty into an unlawful one, making it reviewable by habeas corpus.

This decision addresses motions for leave to intervene in an appeal concerning the availability of habeas corpus to challenge the refusal of prisoner transfers to lower security institutions.

The appellants, Frank Dorsey and Ghassan Salah, sought to overturn a lower court's denial of their habeas corpus application.

The Court of Appeal granted intervention to the Canadian Civil Liberties Association, the Black Legal Action Centre, the Canadian Association of Elizabeth Fry Societies, and the Canadian Prison Law Association, finding that the appeal raises issues of constitutional and public importance.

The court determined that the proposed interveners offered distinct and useful perspectives, and that their participation would not cause injustice to the parties, even if aligned with the appellants' position.

The applicant, a member of the Aamjiwnaang First Nation, sought judicial review of the Band Council's decisions to refuse her an allocation of tax-exempt unmarked cigarettes for her smoke shop.

The Council based its refusal on criminal convictions related to an unlicensed cannabis dispensary operating on the same property.

The Divisional Court dismissed the applications, finding that the Council reasonably interpreted its authority under the Tobacco Tax Act regulations to revoke quotas from retailers involved in the illegal sale of drugs.

Although the Council breached its minimal duty of procedural fairness by not giving the applicant an opportunity to respond to the information, the Court declined to quash the decisions because the outcome would not have been different.

The Court of Appeal addressed the status of an intervener, the John Howard Society of Canada (JHSC), in an appeal.

The JHSC had been granted party intervener status in the court below.

While the appellants and respondent consented to the JHSC's continued leave to intervene as an added party, they disagreed on the scope of its participation.

The court clarified that interveners granted party status in the lower court generally expect to continue as parties on appeal without needing a fresh motion, unless there are intervening events or exceptional circumstances.

The JHSC's status as an added party intervener was confirmed, with the terms of participation to be determined later.

The applicants brought a motion to enforce an interim settlement agreement with the City of Toronto regarding physical distancing standards in the city's shelter system during the COVID-19 pandemic.

The City had asserted compliance with the agreement on June 15, 2020, which would trigger the termination of the agreement.

The court found that the City breached the agreement by asserting compliance when it had not used its 'best efforts' to achieve the required physical distancing standards across all sites.

The court ordered the City to continue its pre-compliance reporting obligations until it fully met its obligations under the agreement.

The applicants brought a refusals motion to compel answers and document production from the City of Toronto and Ontario in a Charter application challenging shelter standards during the COVID-19 pandemic.

The motion sought to enforce an Interim Settlement Agreement regarding physical distancing and bed capacity in shelters.

The court granted the motion in part, finding many of the City's refusals improper regarding system-wide compliance data for the May 15-June 15, 2020 period, but upheld other refusals based on proportionality, particularly concerning the Central Intake service, daily capacity data, and information outside the specified period.

This endorsement addresses two motions to intervene in a land claim action brought by the Cree Nation of Eeyou Istchee against the Crown.

The Moose Cree First Nation sought to intervene as a necessary party, claiming exclusive Aboriginal title to a portion of the disputed lands.

The Nishnawbe Aski Nation (NAN), a political territorial organization representing 49 First Nations, sought to intervene as an added party, asserting a general interest in the interpretation and application of Treaty #9.

The court granted the Moose Cree First Nation status as a necessary party without conditions under Rule 5.03, acknowledging its direct territorial claim.

The Nishnawbe Aski Nation was granted status as a friend of the court under Rule 13.02, with specific limitations on its participation, as it lacked a direct or immediate interest in the substance of the claim independent of its members.

The court emphasized the complexity of multi-lateral disputes between First Nations in the context of reconciliation.

The applicant sought judicial review of decisions by the Information and Privacy Commissioner regarding a freedom of information request for an OPP investigation report.

The Commissioner had found that the Ministry repeatedly failed to properly exercise its discretion under the law enforcement exemption, but closed the appeal file claiming he was functus officio and had no further recourse.

The Divisional Court quashed the Commissioner's decisions, finding he erred in law by misapprehending the scope of a prior Supreme Court of Canada remittal order.

The Court remitted the matter back to the Commissioner and issued a declaration that the Ministry had disregarded the Commissioner's proper directions regarding its exercise of discretion.

The applicant sought a stay of proceedings under s. 11(b) of the Charter, alleging unreasonable delay in his prosecution for murder and break and enter.

The total delay from arrest to the scheduled trial date was over 53 months.

The court analyzed the periods of delay, noting that significant portions were attributable to the applicant's difficulties in retaining counsel of choice and his subsequent challenges to the jury roll.

The court concluded that the institutional delay was not unreasonable in the circumstances and that the societal interest in a trial on the merits outweighed the applicant's s. 11(b) interests.

The application was dismissed.

The accused, charged with murder, sought to relitigate a pre-trial ruling that found his police statement voluntary.

The original trial judge retired before the trial commenced, and the accused argued the new trial judge was not bound by the previous ruling under the Criminal Code.

The court held that the situation was analogous to rulings made by a case management judge or after a mistrial, where previous rulings remain binding unless it is in the interests of justice to relitigate.

Finding no new evidence or change in circumstances, the court dismissed the application and upheld the voluntariness ruling.

The applicants, two Aboriginal men facing murder charges, brought a pre-trial application challenging the representativeness of the 2015 Thunder Bay jury roll under ss. 11(d) and 11(f) of the Charter.

They argued the state failed to make reasonable efforts to obtain source lists and deliver jury notices to on-reserve First Nations residents.

Applying the Supreme Court of Canada's framework in Kokopenace, the court reviewed the state's efforts, including the creation of an Aboriginal Jury Coordinator position, pilot projects offering compensation to bands for lists and delivery, and follow-ups on returned mail.

The court found that the state made reasonable efforts and provided a fair opportunity for a broad cross-section of society to participate, dismissing the application.

The applicants, two Aboriginal men facing murder charges, challenged the 2015 Thunder Bay jury roll, arguing it violated their ss. 11(d) and 11(f) Charter rights due to inadequate inclusion of on-reserve Aboriginal residents.

The court applied the Supreme Court of Canada's test from R. v. Kokopenace, focusing on whether the state made reasonable efforts to provide a fair opportunity for a broad cross-section of society to participate.

The court reviewed the extensive efforts made by the province, including pilot projects, increased questionnaires, and follow-ups, and concluded that the state had met its constitutional obligation.

The application was dismissed.

The applicant brought an application for habeas corpus with certiorari in aid challenging the legality of his detention.

Prior to the scheduled hearing, the applicant sought directions regarding the order of filing evidence at the second stage of the application, specifically whether he could file rebuttal evidence after the respondents filed their record.

The respondents argued the applicant should file all evidence first, consistent with typical application procedures.

The court held that habeas corpus proceedings are unique because the burden shifts to the respondents to justify the deprivation of liberty.

The court permitted the applicant to file rebuttal evidence after the respondents' materials so that the applicant could tailor his response to the case advanced against him.

The accused applied to challenge the representativeness of the 2014 Thunder Bay jury roll, arguing that Ontario failed to make reasonable efforts to include Indigenous on‑reserve residents, thereby breaching the right to a representative jury under ss. 11(d) and 11(f) of the Charter.

The court applied the test articulated in R. v. Kokopenace, assessing whether the state made reasonable efforts in compiling source lists, delivering jury questionnaires, and encouraging responses.

Evidence showed continued reliance on inaccurate band electoral lists containing off‑reserve members, inadequate review of those lists, high undeliverable rates for jury questionnaires, and extremely low return rates from on‑reserve residents without meaningful remedial action.

The court concluded that the province failed to exercise reasonable diligence in addressing known systemic problems affecting Indigenous representation on jury rolls.

A Charter breach was established.

During a jury trial for historical sexual assault involving a teacher and two former students, the court made four evidentiary rulings.

The court ordered the disclosure of unedited psychologist notes to the defence since the witness would use them to refresh his memory.

The court allowed the Crown to adduce some, but not all, evidence of uncharged discreditable conduct to complete the narrative of the relationship.

The court permitted a retired psychologist to testify based on past recollection recorded to explain the complainant's actions.

Finally, the court allowed the Crown to call the complainant's wife to rebut an implicit allegation of recent fabrication arising from the defence's cross-examination regarding the complainant's deteriorating memory.

On a voir dire in a sexual assault prosecution, the Crown sought admission of two videotaped police interviews with the accused.

The defence argued the statements were involuntary due to inducements, oppression, police persistence despite repeated assertions of the right to silence, and attempts to undermine counsel’s advice.

Applying the confessions rule from R. v. Oickle and related jurisprudence, the court assessed threats or inducements, oppression, and the accused’s ability to exercise a meaningful choice to speak.

Although certain police tactics raised concerns, including repeated questioning after assertions of silence and comments undermining counsel, the court found no nexus between those tactics and the accused’s decision to speak.

The Crown proved beyond a reasonable doubt that both statements were voluntary and admissible.

During a jury trial for historical sexual assault involving two complainants, the Crown sought to admit the evidence of each complainant as similar fact evidence on the counts relating to the other.

Applying the framework from R. v. Handy, the court assessed whether the probative value of the proposed evidence outweighed its potential prejudicial effect.

Although certain similarities existed, including allegations of sexual acts occurring after the accused provided alcohol and took students to private residences, the court found significant dissimilarities in the nature of the interactions and the presence or absence of grooming behaviour.

The court also noted the fifteen‑year gap between the allegations.

These differences undermined any meaningful unity between the incidents.

The court concluded that the probative value did not outweigh the potential prejudice and refused to admit the evidence as similar fact evidence.

The appellants achieved modest success on their appeal, successfully striking down a ban on signs under s. 2(b) of the Charter and certain prohibitions in a municipal by-law.

However, the respondent municipality was substantially successful overall.

The Court of Appeal awarded the respondent reduced costs of the appeal fixed at $25,000.

The court declined to interfere with the lower court's costs award of $350,000 for the injunction motion and by-law application, finding it fair and reasonable.