⚖️ Contemptuous

Judge cites lawyer for refusing to write memo. Plus the current state of the SCC, the FCA's Charter values protest, Trans Mountain's variance, and a hefty bid-rigging fine.

Welcome back. Hopefully no one had too tough of a time dealing with apocalyptic conditions this weekend. I’m thankful I didn’t personally have to deal with any rolling blackouts, sunken sailboats, or erupting volcanos.

I’ve started keeping track of the decisions under reserve at the Supreme Court of Canada. I don’t plan to send the data out every day, but I’ll make it a regular segment if readers are interested. Let me know what you think below.

— Dylan Gibbs

TODAY'S DOCKET

5 min read

  • State of the SCC

  • Is not writing a memo worth a contempt citation?

  • Round up: Trans Mountain variance, the Federal Court of Appeal’s Charter values protest, an ex-CFL player’s murder appeal, and a hefty fine for bid rigging.

SCC

Reserved decision status

Here are the unreleased Supreme Court decisions that have spent the most months under reserve:

Reference re: An Act respecting First Nations ...

Paramountcy of Indigenous laws over provincial legislation

13.4

R. v. Bykovets

Expectation of privacy in an IP address

12.1*

Dickson v. Vuntut Gwitchin First Nation

First Nation requiring elected officials to reside within First Nation

11.4

R. v. Brunelle

Standing to allege abuse of process

11.4

Ontario v. Information and Privacy Commissioner of Ontario

Access to communications between Ontario Premier and his ministers

9.1

The average time from hearing to decision is 5 months.
* The Court re-heard R. v. Bykovets on Dec 11, 2023

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Week ahead

The next two months are exclusively criminal at the Supreme Court. Here’s what’s in store this week:

  • R. v. Vu (as of right) — Capacity to consent to sexual contact while intoxicated — The complainant was highly intoxicated and (according to the accused) passed out during sexual contact. According to the trial judge, the Crown didn’t prove the complainant was incapable of consenting. On appeal, a dissenting judge said the trial judge failed to consider the cumulative effect of the evidence. If you’re interested, here’s some commentary on the lower court decisions.

  • R. v. Landry (as of right) — Fraud — A police officer misled a doctor investigating his medical leave so that the doctor would be more likely to exempt the officer from returning to work. The officer’s statements were inconsequential — he wasn’t fit to return to work in any event. The lower courts held the officer still committed fraud, even if his employer didn’t suffer a loss.

  • R. v. Caleb (as of right) — Hearsay — The trial judge admitted an unsworn written statement of a witness who refused to cooperate while testifying. The Quebec Court of Appeal upheld that decision.

HEARSAY ROUNDUP

Canadiana

🛢️ The Trans Mountain pipeline expansion made it closer to the finish line on Friday. The Canada Energy Regulator changed its mind about Trans Mountain’s variance request, permitting narrower pipe in a section of rocky terrain.

🙉 It looks like the Federal Court of Appeal is already trying to rein in the Supreme Court of Canada’s recent Charter values decision. In CSFTNO, the Supreme Court said an administrative decision-maker needed to consider unwritten Charter values before restricting access to minority language education. The Court’s decision effectively created minority language protections broader than the rights defined in the Charter. The Federal Court of Appeal seems to be openly revolting against that outcome:

[S]ection 1 of the Charter, in binding words that cannot be ignored, says that the Charter protects the “rights and freedoms set out in it”, not other things such as “values”. Thus, the “values” that administrative decision-makers are to take into account cannot be broader than, undercut or do an end run around the established scope of the “rights and freedoms set out” in the Charter …

Sullivan v. Canada, 2024 FCA 7 at para 11

🏈 The BC Court of Appeal upheld ex-CFL player Josh Boden’s murder conviction.

👀 Construction DJL Inc. settled bid-rigging allegations prosecuted by the Competition Bureau. The company needs to pay $1.5 million for running up prices on paving contracts tendered by Quebec’s transportation ministry.

🔫 A convicted BC murderer probably shouldn’t have written a song about his crimes.

PRACTICE

Lawyer refuses to write memo and gets cited in contempt

Woman in pantsuit sits in a jail cell with piles of papers. She has an upset look on her face.

Can a judge order a lawyer to do extra work under threat of contempt? Should they?

A judge of the Ontario Court of Justice recently cited defence lawyer Genevieve Eliany in contempt for refusing to write a memo. Eliany tried to schedule a motion during a pretrial conference. Justice Wendl questioned the need for the motion and ordered Eliany to explain her position in a writing. The pretrial was adjourned for a month, but Eliany never wrote the memo.

Justice Wendl officially cited Eliany in contempt last week, with a contempt hearing to follow at some point down the road.

  • Justice Wendl’s rationale for ordering the memo seems to be that criminal courts are too strained to deal with unfounded pre-trial motions. Why schedule a motion if the moving party can’t articulate a proper basis for it?

  • On the other hand, parties have the right to bring motions and have those motions decided on the merits. Is it appropriate for judges to exercise a pre-screening function that effectively serves as summary dismissal? Defence lawyers are also strapped for time and — if working on legal aid — won’t get paid to write an extra memo.

2 cents: On the issue of pre-screening motions, I’ll admit that seemingly frivolous pre-trial motions frustrated me as a Crown — there’s only so much trial time to go around. But it’s difficult to reconcile pre-emptive judicial screening with the very high bar for summary dismissal in criminal cases. As for the contempt citation, I’m surprised it went that far. If the concern was about scheduling a frivolous motion, why not just refuse to schedule it?

If you have thoughts about this case, I’d love to hear them. As always, feel free to reply to this email.

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