Ludmila B. Herbst

On a statutory interpretation appeal concerning reserve land taxation, the appellant argued that a bylaw clause permitting consideration of restrictions placed on land use “by the band” excluded a lease restriction created in a Crown lease.

The Court held that the assessor could consider the golf-club use restriction when valuing the leased reserve lands for assessment purposes.

Reading the bylaw text, purpose, and legislative context together, the Court found the 1996 amendment narrowed qualifying restrictions but did not bar this restriction.

The Court also held the Crown’s historical statutory role in reserve leasing did not negate that the restriction was placed by the band in context.

The appeal was dismissed with costs.

During an extradition hearing, the appellant disclosed in camera that he was a confidential police informer.

The extradition judge appointed an amicus curiae and subsequently ordered that media counsel and representatives be granted access to the amicus documents, subject to confidentiality undertakings, to argue whether the proceedings should remain in camera.

The Supreme Court of Canada allowed the appeal, holding that informer privilege is absolute and non-discretionary, subject only to the innocence at stake exception.

The Dagenais/Mentuck test for discretionary publication bans does not apply.

The extradition judge erred in ordering the disclosure of privileged information to the media.

The Crown obtained an ex parte order for a judicial investigative hearing under s. 83.28 of the Criminal Code in relation to the Air India bombings.

The application judge ordered the hearing to be held in camera and kept secret.

A newspaper reporter discovered the proceedings and sought access.

The hearing judge dismissed the application for access.

The Supreme Court of Canada allowed the newspaper's appeal in part, holding that the open court principle applies to s. 83.28 hearings.

While the initial ex parte application was properly held in camera, the existence of the order and the constitutional challenge should have been public.

The investigative hearing itself must be presumptively open, subject to the Dagenais/Mentuck test for publication bans or in camera orders.

During a murder investigation, police used a 'crime boss' undercover scenario to elicit a confession from the accused.

At the voir dire, the trial judge granted a publication ban on the identity of the undercover officers and the investigative techniques used.

The appellant newspaper appealed the ban directly to the Supreme Court of Canada.

The Court allowed the appeal, applying the Dagenais/Mentuck test.

It held that a ban on the investigative techniques was not necessary and its deleterious effects on freedom of expression outweighed its salutary effects.

However, a ban on the officers' identities was necessary to protect ongoing operations, but was limited to a period of one year.

The Musqueam Indian Band surrendered reserve land to the Crown for leasing.

The land was subdivided, serviced, and leased to individuals for 99 years.

The leases provided for rent reviews, stating rent should be 6 percent of the 'current land value' of 'unimproved lands'.

The parties disagreed on whether 'current land value' meant fee simple value off-reserve or leasehold value on-reserve, and whether 'unimproved' meant unserviced.

The Supreme Court of Canada held that 'current land value' refers to the hypothetical fee simple value of the land on the reserve, which requires a 50 percent discount from comparable off-reserve land to account for Indian reserve features.

The Court also held that 'unimproved' means unserviced, so servicing costs must be deducted from the land value.