Jessica Orkin

The appellants, representing the Haudenosaunee Development Institute, challenged two municipal by-laws passed by the City of Brantford to prohibit unauthorized interference with development and the imposition of unauthorized fees.

The appellants argued the by-laws were passed in bad faith, violated the open meeting requirements of the Municipal Act, 2001, infringed sections 2(b) and 15 of the Charter, and were ultra vires the province under section 91(24) of the Constitution Act, 1867.

The Court of Appeal dismissed most of the appeal, finding the by-laws were validly passed and did not target the Haudenosaunee.

However, the Court allowed the appeal in part, striking the words 'invite', 'request', and 'sign' from the by-laws as they unjustifiably limited freedom of expression under section 2(b) of the Charter.

The appellant, an Aboriginal man, was convicted of manslaughter by a jury in the District of Kenora.

He appealed his conviction on the basis that the jury roll from which his petit jury was selected was unrepresentative, as it systematically under-represented Aboriginal on-reserve residents.

The Court of Appeal found that the state failed to make reasonable efforts to address known, long-standing problems with the delivery and return rates of jury questionnaires on reserves.

This failure violated the appellant's rights under sections 11(d) and 11(f) of the Charter.

The appeal was allowed and a new trial was ordered.

The appellant challenged the constitutionality of s. 243 of the Criminal Code, which prohibits concealing the dead body of a child whether it died before, during, or after birth, arguing the provision is impermissibly vague in its application to a child that died before birth, thereby infringing s. 7 of the Charter.

The Supreme Court unanimously dismissed the appeal, holding that s. 243 meets the minimum standard of precision required by the Charter when interpreted to apply only to a fetus that would likely have been born alive.

The Court adopted a likelihood standard from R. v. Berriman, finding the provision gives fair notice and sufficiently limits enforcement discretion.

The matter was remitted for a new trial.

The applicant municipality successfully obtained an interlocutory injunction to prevent the respondents from blockading various development sites and successfully defended a motion to quash its by-laws.

The applicant subsequently sought its costs of the proceedings.

The respondents argued they were public interest litigants and that costs should be in the cause or paid by the province.

The court rejected these arguments, finding the respondents' unlawful conduct necessitated the litigation and they were not acting in the public interest.

The court awarded the applicant costs fixed at $350,000, significantly reducing the $887,000 claimed due to duplication, excessive time, and the exclusion of costs for a court-ordered consultation process.

The appellant appealed his convictions for first degree murder and kidnapping, arguing that the Crown and police engaged in improper jury vetting.

The Crown had requested police to conduct extensive background checks on prospective jurors, including traffic violations and police contacts, and to provide comments on their suitability.

This information was used by the Crown in exercising peremptory challenges but was not disclosed to the defence.

The Court of Appeal found that the extent of the jury vetting, the violation of privacy legislation and Crown policy, and the failure to disclose the information disrupted the balance in the jury selection process.

This created an appearance of unfairness amounting to a miscarriage of justice.

The appeal was allowed and a new trial ordered.

The United States sought the extradition of two Aboriginal Canadians to face drug trafficking charges.

The applicants faced significantly harsher sentences in the US than they would in Canada, and the US system does not consider Aboriginal status in sentencing.

The Minister of Justice ordered their surrender, concluding that the Gladue principles were not relevant to their s. 6(1) Charter mobility rights and that surrender would not shock the conscience under s. 7.

The Court of Appeal set aside the surrender orders, holding that the Minister erred in law by failing to properly apply the Gladue principles to the s. 7 analysis and by failing to conduct an independent Cotroni analysis under s. 6(1).

The Court found that surrendering the applicants to face crushing sentences without consideration of their Aboriginal background would violate the principles of fundamental justice.

Several civil liberties and HIV/AIDS organizations brought motions to intervene in an appeal concerning the constitutionality of the Marihuana Medical Access Regulations.

The Crown opposed the interventions, arguing the appeal was fact-based and the interventions would be duplicative or prejudicial.

The court granted the motions to intervene, finding that the proposed interveners would provide unique viewpoints on the broader legal and constitutional issues without causing injustice to the parties or prejudicing the appeal process.

Following a motion for leave to appeal, the court received written submissions on the reserved issue of costs.

The moving parties argued for a no-costs order, while the responding party sought its costs.

The court found that the responding party was entitled to its costs on a partial indemnity scale, noting that the moving parties had a full hearing on constitutional issues and did not disclose their funding arrangements to support a no-costs order.

Costs were fixed at $28,000 all-inclusive.

The applicants, appealing their convictions, sought disclosure or production of band lists used by the Court Services Division to prepare jury rolls in the Kenora District and Simcoe County.

They argued the lists were necessary to demonstrate systemic underrepresentation of First Nations persons on the jury rolls, which violated their Charter rights.

The Court of Appeal granted the application, finding that the requested records met the 'likely relevant' test for third-party production under O'Connor, as they could be used to test the statements of Crown deponents and understand the jury roll preparation process.

The applicants, family members of individuals whose deaths were investigated by the Special Investigations Unit (SIU), sought a declaration that police officers involved in SIU investigations are not entitled to legal assistance in preparing their notes.

The application judge dismissed the application on grounds of standing, justiciability, and mootness.

The Court of Appeal allowed the appeal, finding the applicants had public interest standing and the issues were justiciable and not moot.

Exercising its jurisdiction to decide the substantive issues, the Court held that the Police Services Act and the SIU Regulation do not permit police officers to have a lawyer vet or assist in the preparation of their notes, though they may obtain basic legal advice regarding their rights and duties provided it does not delay note completion.

The appellant was convicted of manslaughter following a stabbing during a fight.

He appealed his conviction on four grounds, including an improper closing address by the Crown, misleading jury instructions regarding expert pathology evidence, an unreasonable verdict, and systemic underrepresentation of aboriginal on-reserve residents in the jury roll.

The Court of Appeal split the appeal into two parts.

The Court dismissed the first three grounds, finding the trial was fair, the jury instructions were adequate, and the verdict was reasonable.

The Court adjourned the appeal to hear submissions on the discrete issue of the jury roll composition.

Two sets of proposed interveners sought to be added as parties to two separate criminal appeals in order to cross-examine witnesses and tender evidence regarding the jury panel selection process.

The court dismissed the motions to add them as parties, noting that adding strangers as parties to a criminal appeal is inappropriate.

However, the court granted the applicants intervener status as friends of the court and, exceptionally, exempted them from the usual condition of accepting the record as it exists, allowing them to potentially augment the record and cross-examine witnesses.

The Information Commissioner of Canada sought judicial review of refusals to disclose records located in the offices of the Prime Minister, the Minister of National Defence, and the Minister of Transport, as well as the Prime Minister's agenda held by the RCMP and PCO.

The Supreme Court of Canada held that Ministers' offices are not 'government institutions' under the Access to Information Act.

The Court established a two-part test to determine if records in a Minister's office are 'under the control' of a government institution: whether the record relates to a departmental matter, and whether the institution could reasonably expect to obtain a copy.

Applying this test, the requested records were not under the control of the respective government institutions.

Furthermore, the Prime Minister is not an 'officer' of a government institution under the Privacy Act, meaning his agenda is exempt from disclosure as personal information.

The appeals were dismissed.

The respondents moved to strike or quash portions of the appellants' Notice of Appeal, specifically a request for a declaration and a ground of appeal relating to justiciability and standing.

The Court of Appeal dismissed the motion, deferring the jurisdictional issue to the panel hearing the appeal.

The appellants' cross-motion to have the appeal case-managed was granted, with costs of the motion awarded to the appellants.

The accused was charged with concealing the dead body of a child.

The trial judge found that the words 'died before . . . birth' in the Criminal Code were unconstitutionally vague and severed the word 'before', leading to the accused's acquittal.

The Crown appealed.

The Court of Appeal allowed the appeal, holding that the provision is not unconstitutionally vague when interpreted using the common law 'chance of life' standard, which provides fair notice and limits law enforcement discretion.

A new trial was ordered.

The appellant, who was found not criminally responsible by reason of mental disorder and detained in a mental health facility, sought an absolute discharge and treatment orders as remedies under s. 24(1) of the Charter.

The Supreme Court of Canada established a new approach for determining whether an administrative tribunal is a court of competent jurisdiction under s. 24(1).

The Court held that the Ontario Review Board has the jurisdiction to grant Charter remedies because it has the authority to decide questions of law.

However, the Court dismissed the appeal, finding that the specific remedies sought by the appellant—an absolute discharge for a dangerous patient and a treatment order—were expressly precluded by the Board's statutory scheme under the Criminal Code.

The appellants, a newspaper and its journalists, received an allegedly forged document from a confidential source implicating the Prime Minister in a conflict of interest.

The police obtained a search warrant and assistance order to seize the document and its envelope to identify the source through forensic testing.

The appellants challenged the warrant, claiming a constitutional or common law journalist-source privilege.

The Supreme Court of Canada held that while s. 2(b) of the Charter does not provide a blanket constitutional immunity for journalists, a case-by-case privilege may be established using the Wigmore criteria.

On the facts, the public interest in investigating the serious crime of forgery outweighed the public interest in protecting the confidential source.

The search warrant and assistance order were upheld as reasonable under s. 8 of the Charter.

At the opening of a judicial review hearing, the applicant moved for leave to adduce fresh evidence and subsequently sought an adjournment to bring the new evidence before the Information and Privacy Commissioner for reconsideration.

The respondents did not oppose the adjournment.

The Divisional Court vacated a prior order to permit the motion and granted the adjournment.

The Crown appealed an order of an Ontario Court of Justice judge who purported to exercise delegated habeas corpus powers to declare the accused's detention in jail unlawful.

The accused had been ordered to undergo a mental health assessment at a hospital but was held in jail due to a lack of beds.

A Superior Court judge had remitted the accused's habeas corpus application to the lower court under s. 775 of the Criminal Code.

The Court of Appeal quashed the appeal, holding that the lower court judge's order was not a judgment issued on the return of a writ of habeas corpus, as s. 775 does not permit the delegation of superior court habeas corpus powers to a lower court.

Consequently, there was no statutory jurisdiction to hear the appeal under s. 784(5) of the Criminal Code.