Robert J. Frater

This is a costs endorsement following an appeal where the Court of Appeal allowed the appeal on a preliminary jurisdictional question raised by the court itself, rather than on the substantive issues.

The court had determined that neither the application judge nor the Court of Appeal had jurisdiction to decide whether a proposed payment would constitute an offence under the Criminal Code.

Given these unique circumstances, where the disposition was based on a threshold jurisdictional question posed by the panel and did not determine the underlying substantive issues, the court ordered that each party bear their own costs below and on appeal.

The Court of Appeal for Ontario set aside a Superior Court declaration that a proposed payment by estate executors to a law firm, in satisfaction of a Dubai judgment, would violate s. 83.03(b) of the Criminal Code due to alleged connections between the judgment creditors and a terrorist group.

The appellate court held that the Superior Court lacked jurisdiction to issue such a declaration, as it improperly interfered with prosecutorial discretion and provided no binding immunity from criminal prosecution.

The court emphasized that Rule 14.05(3) of the Rules of Civil Procedure and s. 60(1) of the Trustee Act are procedural and do not create jurisdiction for declarations on criminal legality, especially when based on disputed facts.

Senator Michael Duffy sued the Senate of Canada for over $7 million in damages, alleging his suspension and denial of expenses were politically motivated, unconstitutional, and violated his Charter rights, despite his acquittal on criminal charges.

The Senate moved to dismiss the action, asserting parliamentary privilege.

The court granted the Senate's motion, finding that the Senate's decisions regarding member discipline, internal affairs, proceedings, and freedom of speech were protected by parliamentary privilege and thus immune from judicial review.

In consolidated constitutional reference appeals, the Court upheld the cooperative capital markets framework and confirmed the draft federal statute was within Parliament's general trade and commerce power.

It held the memorandum did not legally bind provincial legislatures or impermissibly transfer primary legislative authority, and that the federal scheme validly targeted systemic risk and financial crime.

On a motion to extend the suspension of the declaration of constitutional invalidity granted in an earlier physician-assisted death ruling, the moving party sought a six-month extension.

The Court held that the federal election delay constituted extraordinary circumstances justifying only a four-month extension.

The Court also granted an exemption for Quebec in relation to specified provincial end-of-life care provisions and permitted eligible individuals to seek judicial authorization from superior courts during the extension period.

A partial dissent would have granted only the four-month extension and refused both exemption requests.

Special costs were awarded on a full indemnity basis.

The appellants challenged Criminal Code provisions barring assistance in dying, arguing the absolute prohibition violated section 7 Charter rights of competent adults with grievous and irremediable medical conditions causing intolerable suffering.

The Court held the blanket ban was overbroad relative to Parliament’s objective of protecting vulnerable persons and was not justified under section 1.

It declared section 14 and section 241(b) of no force or effect to the extent they prohibit physician-assisted death for competent, consenting adults meeting the defined criteria.

The declaration of invalidity was suspended for 12 months to allow a legislative response.

The Court also awarded special costs on a full indemnity basis to the appellants, with partial cost responsibility assigned to British Columbia.

The Governor in Council referred the proposed federal Securities Act to the Supreme Court of Canada to determine its constitutional validity.

The proposed Act sought to create a single national securities regulator and a comprehensive federal regime for securities regulation.

The federal government argued the Act was a valid exercise of its general trade and commerce power under s. 91(2) of the Constitution Act, 1867.

The Court applied the General Motors test and concluded that while certain aspects of the securities market are national in scope, the main thrust of the Act was the day-to-day regulation of securities, which falls under provincial jurisdiction over property and civil rights (s. 92(13)).

Consequently, the Court found the proposed Act unconstitutional, though it noted that a cooperative federal-provincial approach remains available.

The Attorney General of Canada appealed a decision granting a constitutional exemption to Insite, a safe injection facility in Vancouver, from federal drug possession and trafficking laws.

The Supreme Court of Canada held that while the Controlled Drugs and Substances Act is valid federal criminal legislation that applies to provincial health facilities, the federal Minister of Health's refusal to grant an exemption under section 56 of the Act violated the claimants' section 7 Charter rights.

The Court found the Minister's decision was arbitrary and grossly disproportionate in its effects, as it denied life-saving medical care to vulnerable individuals without a corresponding benefit to public safety.

The Court ordered the Minister to grant the exemption forthwith.

The respondent, a Canadian citizen, was detained by U.S. authorities at Guantanamo Bay.

Canadian intelligence officials interviewed him, knowing he had been subjected to sleep deprivation, and shared the information with U.S. authorities.

The respondent sought an order requiring the Canadian government to request his repatriation.

The Supreme Court of Canada held that the conduct of Canadian officials violated the respondent's rights under s. 7 of the Charter.

However, the Court concluded that ordering the government to request repatriation was not an appropriate remedy, as it unduly interfered with the Crown prerogative over foreign affairs.

Instead, the Court granted a declaration that the respondent's Charter rights were violated, leaving it to the government to determine how best to respond.

The respondent, a Canadian citizen detained at Guantanamo Bay, sought disclosure of records of interviews conducted by Canadian officials with him and shared with U.S. authorities.

The Supreme Court of Canada held that the Charter applied to the Canadian officials' actions because the process at Guantanamo Bay violated Canada's binding international human rights obligations.

Under section 7 of the Charter, Canada has a duty to disclose the records of the interviews and any information given to U.S. authorities as a direct consequence, subject to national security and other considerations under the Canada Evidence Act.

The parties filed several motions in the context of an appeal regarding disclosure of materials to a detainee at Guantanamo Bay.

The respondent sought a sealing order to file fresh evidence obtained from U.S. proceedings, which was granted with conditions to allow the panel hearing the appeal to determine its admissibility.

The appellants moved to strike portions of the respondent's factum and the entirety of two interveners' factums, arguing the submissions lacked factual basis, were non-justiciable, and raised new issues.

The Court dismissed the motions to strike, holding that these objections should be argued before the panel hearing the main appeal.

The appellant, a dual Canadian-American citizen, was convicted in Canada of drug offences.

The United States subsequently sought his extradition for a related drug transaction in Detroit.

The Minister of Justice ordered his surrender, concluding that extradition would not unjustifiably infringe his mobility rights under s. 6(1) of the Charter.

The Supreme Court of Canada held that the Minister's decision to surrender a fugitive, including the assessment of Charter rights, is reviewable on a standard of reasonableness.

The Court found that the Minister provided adequate reasons and reasonably concluded that the appellant had not already been punished in Canada for the U.S. offence, and that the U.S. had a greater interest in prosecuting the conduct that occurred on its territory.

The United States sought the extradition of the appellants under the 'record of the case' method.

The appellants challenged the constitutionality of the evidentiary provisions of the Extradition Act, arguing they violated section 7 of the Charter by allowing committal on unreliable evidence.

The Supreme Court of Canada held that the provisions are constitutional because section 29(1) of the Act grants the extradition judge the discretion to refuse committal if the evidence is manifestly unreliable or unavailable for trial.

The appeals were dismissed and the committals for extradition were upheld.

The appellant brought nearly $35,000 in cash to post bail for a client.

The police seized the money without a warrant under the Controlled Drugs and Substances Act.

When the Crown applied to extend the detention of the money under s. 490(2) of the Criminal Code, the appellant cross-applied for its return.

The Provincial Court judge ordered the money returned, finding the seizure unlawful.

The Supreme Court of Canada held that a Provincial Court judge has no jurisdiction under s. 490(2) or outside the Code to order the return of unlawfully seized property.

The proper procedure is an application for replevin or Charter review to a superior court.

The appeal was allowed and the Court of Appeal's order was set aside.

The Supreme Court of Canada heard three appeals concerning the constitutionality of s. 488.1 of the Criminal Code, which sets out a procedure for determining claims of solicitor-client privilege in relation to documents seized from a law office under a warrant.

The Court held that s. 488.1 violates s. 8 of the Charter because it more than minimally impairs solicitor-client privilege.

The provision allows privilege to be lost through the inaction of the lawyer, requires the naming of clients, lacks notice to clients, imposes strict time limits without judicial discretion, and permits the Attorney General to inspect documents before privilege is determined.

The Court struck down s. 488.1 and established common law guidelines for law office searches.