⚖️ Abusive

Who can claim abuse of process? Plus Alberta gears up for parental rights, Saskatchewan replaces Human Rights Commission, NB slips up on legislative drafting, and several new judicial appointments.

Happy Monday everyone. A special welcome to the group of law students from my alma mater who subscribed at the end of last week. If you like these emails you might also have an interest in applying for judicial clerkships next year. I’m always happy to chat about my experience, so feel free to get in touch. That goes for any law student — no school-based discrimination here.

— Dylan Gibbs

TODAY'S DOCKET

5 min read

  • SCC releases its first reserved decision of 2024

  • Alberta plans for parental rights

  • Saskatchewan overhauls its Human Rights Commission

  • NB slips up on legislative drafting

  • And several new judicial appointments

CRIMINAL

Abuse of process doesn’t require personal prejudice

Police officer steps on a crumpled paper that says "Charter"

R. v. Brunelle, 2024 SCC 3

The Supreme Court delivered its first reserved decision of the year on Friday. The issue: Who has standing to argue that criminal proceedings are an abuse of process? The answer: more people than you might have thought.

What happened: While arresting 31 people during a large-scale operation, police were a bit sloppy with Charter compliance. Officers waited before giving those arrested a chance to speak with a lawyer. They didn’t give notice before executing several search warrants (as required by the warrants). And they executed warrants outside the authorizing judicial district, without getting the proper approval.

But those shortcomings didn’t directly affect everyone — some of the 31 accused didn’t even want to speak with a lawyer during their arrest and weren’t targeted by the improper searches.

Scrap the whole thing? The trial judge stayed the proceedings against all 31 accused. He said the police conduct was so bad when considered cumulatively that it amounted to an abuse of process — continuing the proceedings against anyone arrested during the operation would bring the administration of justice into disrepute, whether police directly infringed their rights or not.

The Court of Appeal disagreed. The Court of Appeal said anyone who wasn’t directly affected didn’t have standing to claim abuse of process.

SCC: yes to standing, no to the nuclear option

According to the Supreme Court, all 31 accused had standing to claim abuse of process. But the trial judge shouldn’t have been so quick to grant everyone a stay of proceedings.

  • Standing: Abuse of process doesn’t require personal prejudice. An accused can base their claim on any state conduct connected to their case, including a breach of someone else’s Charter rights. But there does need to be a connection — the claim can’t be based on general police wrongdoing unrelated to the case against the accused.

  • Case-by-case: Even though everyone had standing, the trial judge still needed to consider each case separately. Without an individualized assessment, he shouldn’t have concluded police breached the right to counsel, and he certainly shouldn’t have granted the extreme remedy of a stay.

Off on her own: Justice O’Bonsawin authored the majority decision — the first set of reasons she’s written by herself since joining the Court. Last year, she co-authored majority reasons with Chief Justice Wagner and with Justice Rowe. She also wrote a dissent with Justice Rowe.

HEARSAY ROUNDUP

Canadiana

🏳️‍⚧️ Alberta is planning to introduce “parental rights” legislation this week, following the lead of Saskatchewan and New Brunswick. If those provinces are any indication, the legislation will likely require schools to get parental consent before referring to a child under the age of 16 by the child’s chosen name or pronouns. Will Alberta decide to save a few steps in the inevitable legal battle by invoking the notwithstanding clause even sooner than Saskatchewan? Stay tuned.

🥾 For reasons that might be completely unrelated to “parental rights”, Saskatchewan replaced every member of its Human Rights Commission.

🪧 The US government isn’t a fan of Quebec’s newly proposed signage regulations, which will force many businesses to add oversized French-language descriptors to their storefronts by 2025. And our southern neighbours aren’t the only ones concerned with the change — businesses say compliance will likely come with a price tag much higher than provincial estimates.

😲 New Brunswick accidentally repealed child protection legislation without enacting a replacement, leaving the province scrambling to fill a critical legal gap. To be fair, can we really expect legislative drafters to remember when legislation takes effect? Third reading, royal assent, proclamation … it’s all very technical.

🧑‍⚖️ Justice Minister Arif Virani announced judicial appointments this morning to the Federal Court, the Federal Court of Appeal, and the Ontario Superior Court of Justice. In total, four new faces joined the judiciary, three judges were elevated to higher courts, and one was appointed the role of Regional Senior Judge.

  • Justices Elizabeth Walker and Vanessa Rochester moved from the Federal Court to the Federal Court of Appeal

  • Allyson Whyte Nowak joined the Federal Court

  • Justice Patrick J. Boucher became the Regional Senior Judge for the Northeast Region of Ontario’s Superior Court of Justice

  • Justice Michael B. J. Carnegie moved from the Ontario Court of Justice to the Superior Court of Justice

  • Stephen J. Wojciechowski, Evelyn M. ten Cate, and Joanna M. Shaw also joined the Superior Court of Justice

There’s still plenty of work to be done.

FROM THE READERS

Here are the results of Friday’s poll about the Emergencies Act. Thanks to everyone who participated.

Poll question: Who got it right? Justice Mosley (no emergency) has 15 votes and The Commission (emergency) has 9 votes

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