⚖️ Classroom cruelty

To: Hearsay Readers

Good morning.

Most of the lawyers surveyed by the Law Society of Ontario’s Futures Committee aren’t using artificial intelligence — they don’t know how or even if they should incorporate AI in their practice. But not everyone feels that way. Brazilian city councillor Ramiro Rosário drafted legislation using ChatGPT and presented it to his fellow councillors as if he’d written it himself. The law passed with unanimous approval.

— Dylan Gibbs

TODAY’S DOCKET

  • Charter: Is Saskatchewan’s pronoun law cruel and unusual?

  • Round up: NBA star’s home purchase marred by fraudulent misrepresentation, Quebec planning to block tenants from freely transferring leases, and Ontario victims of crime getting a boost for civil lawsuits

  • Criminal law: SCC splits on consequential Charter breaches

CHARTER

Saskatchewan pronoun fight continues

Parents and child sitting in school classroom in setting that looks like a parent-teacher conference

The LGBTQ2S+ advocates challenging Saskatchewan’s pronoun law aren’t going down without a fight. The provincial government assumed it had the last word when it used the notwithstanding clause to enact its controversial Parents’ Bill of Rights last month. But the groups challenging the government’s policy are now relying on a section of the Charter that the Parents’ Bill of Rights doesn’t override.

The new argument is that the pronoun law imposes cruel and unusual treatment by forcing teachers to deadname and misgender students who don’t have parental support — that would violate section 12 of the Charter. The Parents’ Bill of Rights applies “notwithstanding sections 2, 7 and 15 of the Charter”, but it doesn’t say anything about section 12.

On the merits: The new argument faces some obstacles, but it’s not outlandish. The advocacy groups need to show that compelled deadnaming and misgendering is a form of “treatment” covered by section 12 and that it rises to the level of being cruel and unusual.

Even if the argument is successful, though, the government can always amend the legislation to expressly override section 12 of the Charter in addition to the sections it already mentions.

In the meantime: Several teachers have said they won’t enforce the new law. Premier Scott Moe isn’t happy about that, but he’s not quite sure how the government will respond.

Given Moe’s strongly held view that no one should follow laws they think are discriminatory, he’s probably a bit conflicted. Here he is trying to articulate why the Parents’ Bill of Rights is paramount but the federal carbon tax is optional:

Woman deep in thought with mathematical formulas overlaid

HEARSAY ROUNDUP

Canadiana

🏀 NBA player Shai Gilgeous-Alexander successfully unwound his Burlington home purchase. The seller of the home failed to disclose that the previous tenant was “Crypto King” Aiden Pleterski — the man who was kidnapped and held for ransom after being accused of stealing over $25 million from investors. According to an Ontario judge, Pleterski’s connection to the property created an “ongoing safety risk [that] rendered the Burlington property dangerous and unfit for habitation.” The vendors should have disclosed that latent defect. And they definitely shouldn’t have fraudulently misrepresented the property as “private and secure”.

🏡 Quebec wants to change residential tenancies so that landlords can terminate a lease if the tenant asks to assign the tenancy to someone else. The proposed change prompted protests over the weekend.

💵 Ontario wants to make it easier for crime victims to sue offenders for emotional distress. The province’s Victims’ Bill of Rights already gives victims of certain offences a statutory right to sue, but amendments tabled last week would expand the list of eligible offences. Some of the people who can sue under the Victims’ Bill of Rights are “presumed” to suffer emotional distress, so they don’t have to testify about it again after going through the initial ordeal of a criminal trial. The updated legislation also extends that presumption to more victims, including victims of child sex offences, voyeurism, and human trafficking.

🎲 Mastermind Toys blames the Competition Bureau for its insolvency. The company says it had a deal lined up to potentially save the business but wasn’t able to proceed because of a required competition review.

⛏ Canadian mining company First Quantum initiated arbitration proceedings against Panama.

CRIMINAL LAW

Consequential Charter breaches... aren’t that bad?

Police with drug dog beside a vehicle. The driver's door of the vehicle is open. Two police cars are visible in the background

The Supreme Court of Canada split over how to deal with “consequential” Charter breaches. The case was about police using a drug-sniffing dog during a traffic stop even though they didn’t have the proper grounds. The sniff search gave grounds to arrest the accused and search his vehicle — so those “consequential” steps were tainted by the unlawful search.

Four of five judges agreed that police breach the Charter if they rely on unlawfully obtained evidence to ground a further arrest or search. But the Court split on the significance of that conclusion when it came time to assess the “seriousness” of the state’s Charter-infringing conduct.

Team no big deal: Justices Rowe and O’Bonsawin said consequential breaches might have a greater impact on the accused, but they don’t make the state’s conduct any worse. The focal point is on the initial breach that kicked off the chain of police action.

  • How serious is it that the police used a sniffer dog without having proper grounds?

  • 🚫 How serious is it that the police used a sniffer dog without proper grounds and arrested the accused without proper grounds and searched the interior of the vehicle without proper grounds?

Team very big deal: Justices Martin and Kasirer disagreed, saying consequential breaches are cumulative and make the state’s conduct much worse.

Flying solo: As she tends to do, Justice Côté wrote her own set of reasons — she said the consequential state actions didn’t even breach the Charter. Police had every right to rely on unlawfully obtained evidence to ground their next steps.

Net result: Team “not a big deal” carried the day — the combined conclusions of Justices Côté, Rowe, and Martin led to the evidence going in and the appeal being dismissed. But Justice Côté didn’t deal with the test for excluding evidence, since she fundamentally disagrees that consequential breaches are a thing. That’ll probably leave some lingering uncertainty for lower courts trying to figure out what to do with these cases. We'll just have to hope the Chief Justice assigns more than 5 judges next time the issue crops up.

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