Notes of Cases - Jurisprudence (original) (raw)
Related papers
The Evolving Tort of Conspiracy to Restrain Trade Under Canadian Common Law
1996
For centuries, the common law doctrine of restraint of trade has prevented legal enforcement of agreements among competitors that courts find unreasonable. Although the concept of reasonableness has continued to evolve, and today in Canada reflects modern insights about the evils of competition-harming cartel practices, Canadian courts have never rejected an 1892 House of Lords decision, Mogul. Steamship, holding that the tort of conspiracy to injure is unavailable in the case of trade restraints absent malice. Seizing upon hopeful language in several recent Supreme Court of Canada decisions suggesting that Canada might take a "different course" than the English courts, the author suggests that a fresh Canadian look at this issue would lead to the application of the tort of conspiracy to cartel practices. The article suggests that the English approach no longer reflects Canadian legal or economic thinking, explains how the tort of conspiracy will fill a valuable gap in the...
R. v. Hape [2007] S.C.C. 26 Supreme Court of Canada
International Legal Materials, 2007
Constitutional law-Charter of Rights-Application-Searches and seizures outside Canada-Whether Canadian Charter of Rights and Freedoms applies to extraterritorial searches and seizures conducted by Canadian police officers-If not, whether evidence obtained abroad ought to be excluded because its admission would render trial unfair-Canadian Charter of Rights and Freedoms, ss. 7, 8, 11(d), 24(2), 32. Legislation-Interpretation-Canadian Charter of Rights and Freedoms-Scope of extraterritorial application of Charter-Presumption of conformity with international law. RCMP officers commenced an investigation of the accused, a Canadian businessman, for suspected money laundering activities. They sought permission from the Turks and Caicos Islands authorities to conduct parts of their investigation on the Islands where the accused's investment company is located. Detective Superintendent L of the Turks and Caicos Police Force, who was in charge of criminal investigations on the Islands, agreed to allow the RCMP to continue the investigation on Turks and Caicos territory, but warned the officers that he would be in charge and that the RCMP would be working under his authority. During a one-year period, the RCMP officers conducted searches of the accused's office on the Islands and on each occasion L was with them. At trial, the Crown adduced documentary evidence that the police had gathered from the records of the accused's office. The RCMP officers testified that they were aware there were no warrants authorizing the perimeter searches of the accused's office but that they had relied on L's expertise and advice regarding the legalities of investigations conducted on the Islands. They also testified that they had understood warrants to be in place for the covert entries and had read a document they understood to be a warrant authorizing the overt entries. However, no warrants was entered into evidence at trial. The accused sought to have the documentary evidence excluded, pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms, on the basis that the evidence was obtained in violation of his right under s. 8 of the Charter to be secure against unreasonable search and seizure. He submitted that the Charter applies to the actions of the RCMP officers in the course of their searches and seizures at his office, notwithstanding that those actions took place outside Canada. The trial judge held that the Charter did not apply, dismissed the application and convicted the accused of two counts of money laundering. The Court of Appeal upheld the convictions.
A Reappraisal of the Canadian Anti-Combines Act of 1889
Queen's Law Journal (forthcoming)
In 1889, in response to growing concern about the role of cartels and other "combines" in the economy, the Canadian parliament passed the Anti-Combines Act, the world’s first modern competition statute. A tentative first step, the Act made it a misdemeanour to enter into agreements that were previously unenforceable under the contract law restraint of trade doctrine. The Act, however, was not a success, with only a single prosecution (which resulted in acquittal) brought under it prior to its amendment in 1900. Since that time, it has been broadly criticized in the academic literature, with critics alleging three reasons for its failure: that it extended only to conduct already "unlawful" under the restraint of trade doctrine; that it criminalized only conduct already indictable under the crime of conspiracy; and that it was an intentional failure, a "political sham". Each of these critiques, however, is built on a flawed understanding of the restraint of trade doctrine, reading back into the law in 1889 two House of Lords’ decisions from the 1890s, Mogul Steamship v McGregor, Gow (1892) and Nordenfelt v Maxim Nordenfelt Guns & Ammunition (1894), which made it substantially more difficult to prove agreements were unreasonable vis-a-vis the public interest. Though the Act would not have been the panacea intended by its chief sponsor, Nathaniel Clarke Wallace, it would have been a useful tool against the most pernicious of combine agreements, had the law remained as it was at the time of enactment. The Anti-Combines Act should thus be remembered not for its failure, but as a Canadian legislative innovation hampered by judicial decisions rendered in Westminster.
Winter v. Canada (Attorney General), 2016 SKQB 3
Winter v. Canada (Attorney General), 2016 SKQB 3, 2016
Criminal law --- Narcotic and drug control — Administration and enforcement — Forfeiture — Offence-related property Accused charged on 16 Informations with total of 42 charges for drug and other offences — Charges, some of which were serious, were numerous and involved repeated behaviour with respect to possession of cannabis — Quantity of money was seized from accused's house totalling 58,349.90—Counselforaccusedwithdrewaslawyerduetoinabilitytopayretainer—Accusedreleasedfromcustodyfollowinginitialchargesandwaslivinginhome—Titletohouseregisteredinaccused′snamewassubjecttomortgageandotherencumbrancesinformofwritofexecutionandfamilylawsupportorder—Exactnatureoftheseotherencumbranceswasnotclearlysetforthinmaterialsbutfromaffidavitaccusedwasinarrearsofchildsupportobligationsome58,349.90 — Counsel for accused withdrew as lawyer due to inability to pay retainer — Accused released from custody following initial charges and was living in home — Title to house registered in accused's name was subject to mortgage and other encumbrances in form of writ of execution and family law support order — Exact nature of these other encumbrances was not clearly set forth in materials but from affidavit accused was in arrears of child support obligation some 58,349.90—Counselforaccusedwithdrewaslawyerduetoinabilitytopayretainer—Accusedreleasedfromcustodyfollowinginitialchargesandwaslivinginhome—Titletohouseregisteredinaccused′snamewassubjecttomortgageandotherencumbrancesinformofwritofexecutionandfamilylawsupportorder—Exactnatureoftheseotherencumbranceswasnotclearlysetforthinmaterialsbutfromaffidavitaccusedwasinarrearsofchildsupportobligationsome40,000 — Mortgage on home was in arrears and bank had commenced foreclosure proceedings — Accused had significant equity in house, perhaps as much as 150,000—Accusedbroughtapplicationtohaveseizedfundsreleasedfrommanagementordertopaylegalandlivingexpensespursuanttos.462.34(4)(c)(i)and(ii)ofCriminalCode—Applicationallowedinpart—Fortythousandorderedreleasedtobeusedexclusivelyforlegalexpensesofaccused—Thereshouldbenopaymentfromseizedfundsforlivingexpensesofaccused—Noorderwouldbemadetoallowreimbursementoffamilymembersforpaymentsmade—TherewasnostatutoryrequirementinCodeconstrainingsuchreleaseoffundstoonlythosecaseswhereLegalAidwasnotavailabletotakeondefenceofaccused—Ifunsuccessfulinapplication,accusedwouldnotbehavingcounselrepresenthim—Therewerenovel,complexpointsoflawtobearguedwithrespecttomedicalmarijuanalicenceandCanadianCharterofRightsandFreedomsargumentsinvolvingsearchesandothermatters—Potentialencumbranceholdersincashdidnotyetholdinterestinthatproperty—Courtdeclinedtoordereitherofencumbranceholdersshouldbeprovidedwithnoticeoftheseproceedings—Reasonablelivingexpensesdidnotequatetopreservationofequityinprivatelyownedhome—Asaccusedcouldhavechosenotherlawyers,paymentfortraveltimesoughtbyaccused′scounselwasnotsubjecttopayment—Reasonableamountforlegalfeeswouldbebasedonmaximumof150,000 — Accused brought application to have seized funds released from management order to pay legal and living expenses pursuant to s. 462.34(4)(c)(i) and (ii) of Criminal Code — Application allowed in part — Forty thousand ordered released to be used exclusively for legal expenses of accused — There should be no payment from seized funds for living expenses of accused — No order would be made to allow reimbursement of family members for payments made — There was no statutory requirement in Code constraining such release of funds to only those cases where Legal Aid was not available to take on defence of accused — If unsuccessful in application, accused would not be having counsel represent him — There were novel, complex points of law to be argued with respect to medical marijuana licence and Canadian Charter of Rights and Freedoms arguments involving searches and other matters — Potential encumbrance holders in cash did not yet hold interest in that property — Court declined to order either of encumbrance holders should be provided with notice of these proceedings — Reasonable living expenses did not equate to preservation of equity in privately owned home — As accused could have chosen other lawyers, payment for travel time sought by accused's counsel was not subject to payment — Reasonable amount for legal fees would be based on maximum of 150,000—Accusedbroughtapplicationtohaveseizedfundsreleasedfrommanagementordertopaylegalandlivingexpensespursuanttos.462.34(4)(c)(i)and(ii)ofCriminalCode—Applicationallowedinpart—Fortythousandorderedreleasedtobeusedexclusivelyforlegalexpensesofaccused—Thereshouldbenopaymentfromseizedfundsforlivingexpensesofaccused—Noorderwouldbemadetoallowreimbursementoffamilymembersforpaymentsmade—TherewasnostatutoryrequirementinCodeconstrainingsuchreleaseoffundstoonlythosecaseswhereLegalAidwasnotavailabletotakeondefenceofaccused—Ifunsuccessfulinapplication,accusedwouldnotbehavingcounselrepresenthim—Therewerenovel,complexpointsoflawtobearguedwithrespecttomedicalmarijuanalicenceandCanadianCharterofRightsandFreedomsargumentsinvolvingsearchesandothermatters—Potentialencumbranceholdersincashdidnotyetholdinterestinthatproperty—Courtdeclinedtoordereitherofencumbranceholdersshouldbeprovidedwithnoticeoftheseproceedings—Reasonablelivingexpensesdidnotequatetopreservationofequityinprivatelyownedhome—Asaccusedcouldhavechosenotherlawyers,paymentfortraveltimesoughtbyaccused′scounselwasnotsubjecttopayment—Reasonableamountforlegalfeeswouldbebasedonmaximumof200 per hour for 160 hours — This provided level of recompense in excess of Legal Aid tariff but below what solicitor would normally have charged for services.
Recent Developments in Canadian Criminal Law (2009)
Criminal Law Journal, 2009
This year's review canvasses and analyses a number of substantive, penal, procedural, and evidentiary developments in Canadian criminal law. Substantive law and penal topics to be discussed include recent jurisprudence concerning the extent, if any, to which inchoate offences can be combined; the interpretation of the offence of obstruction of justice in the context of a police officer's exercise of his or her discretion not to charge a suspect; the extent to which there is or should be a defence of innocent possession; whether "sexsomnia" should be classified as sane or insane automatism; and the unfortunate proliferation of minimum sentences in recent years. Procedural and evidentiary topics considered include the continuing evolution of common law police powers in the context of search and seizure; developments in the right to silence; recent discussions of the reliability of expert opinion evidence; and the Supreme Court's latest word on the Canadian approach to corroboration.
Recent Developments in Canadian Criminal Law (2011)
Criminal Law Journal, 2011
This year's review canvasses and analyses a number of substantive, procedural and evidentiary developments in Canadian criminal law. The substantive law topics include recent jurisprudence concerning whether transferred intent applies to attempts; causal liability for the death of innocent victims in gang shoot-outs; the extent to which acts of aiding and abetting must be causally connected to the commission of the principal offence; whether consent to sexual practices involving bodily harm is null and void; whether failure to disclose HIV-positive status before engaging in protected sex constitutes fraud vitiating consent; whether a person can give advance consent to sexual acts performed on them while unconscious; and re-examination of the elements of the defence of provocation. Procedural and evidentiary topics considered in this article include the new Canadian approach to the exclusion of illegally obtained evidence; developments in journalist-source privilege; the ongoing (r)evolution in the protection of a detainee's silence rights; and whether a court can refuse to allow defence counsel to withdraw for non-payment of fees.
2017
Many members of the public fear crimes committed by strangers despite statistics showing greater danger from friends, acquaintances, and relatives. Since this fear is rooted in the fear of the unknown, some people prefer to fall victim to white-collar crimes as opposed to street crimes. Since most white-collar crimes require gaining the victim’s trust, many are committed by people that know the victim. Moreover, the traditional view of white-collar criminals as people of high respectability and social class drastically influences our perception of crime and can lead to significant societal implications. In Canada, this traditional view of white-collar criminals is reflected in criminal legislation. Not only are the actions of white-collar offenders less likely to be criminalized and prosecuted but also the punishments enacted are typically much less severe than for street crimes. In a regime without the possibility of life imprisonment and minimum sentencing, there is instead a prog...
Illicit drugs and crime in Canada
1999
HIGHLIGHTS n Although the overall rate of police-reported drug offences has increased 12% since 1993, the long-term trend has generally remained stable over the past 15 years. It must be noted that trends in drug offences are directly influenced by levels of police enforcement. n After a ten-year decline, the rate of cannabis offences has increased by 34% since 1991. Conversely, the rate of cocaine offences increased between 1981 and 1989, but has dropped by 36% since 1989. The rate of heroin offences also increased for a number of years, peaking in 1993, and then falling 25% over the last four years. n Cannabis-supply offences (trafficking, importing and cultivation) increased for the fourth consecutive year in 1997, partially driven by an increase in cultivation offences. Cannabis-possession offences increased steadily from 1991 to 1996, but dropped slightly in 1997. n Cannabis offences continue to account for the majority of all drug offences. More than 7 in 10 drug offences reported in 1997 involved cannabis. Two-thirds of cannabis offences were for simple possession. n British Columbia continued to show the highest rate (426 offences per 100,000 population) of drug offences in 1997, almost twice the national average. However, when examining only the number of persons charged with drug offences, the rate for British Columbia was only 41% greater than the national average. Newfoundland reported the lowest rate (132) of drug offences for the second year in a row. n While Newfoundland and Alberta have shown the largest decreases in drug offences in recent years, Nova Scotia (+44%), Saskatchewan (+26%) and Manitoba (+14%) have seen the largest increases in the rate of drug offences over the last 2 years. n Younger people are less likely to be charged with serious drug offences. Of all persons charged with cocaine and heroin offences, only 36% were under 25 years of age. For cannabis offences, this proportion was 86%. n The courts continue to treat trafficking offences more severely than possession offences. In 1996-97, data from seven provinces and one territory show that about two-thirds (64%) of persons convicted of trafficking were sentenced to imprisonment, compared to 13% for possession. n Data from a one-day snapshot of inmates in correctional facilities in 1996 show that the most serious offence for which 9% of the adult inmate population in Canada were incarcerated was a drug offence.
Amicus Curiae Submission Eli Lilly and Company v. The Government of Canada
ICSID Case No. UNCT14/2, 2016
This amicus brief was submitted to the North American Free Trade Agreement (NAFTA) arbitral tribunal in Eli Lilly v. Canada (ICSID Case No. UNCT/14/2) by Amici. Amici are scholars whose research and teaching focus is intellectual property law (Dr. Burcu Kilic, Professor Brook Baker, HU Yuanqiong, Professor Cynthia Ho, Dr Luke McDonagh, Pratyush Upreti and Yaniv Heled, J.S.D.). The brief was accepted by the Tribunal with respect to Dr. Burcu Kilic (Washington DC, United States), Professor Brook K. Baker (Boston, United States), Professor Cynthia Ho (Chicago, United States), and Mr. Yaniv Heled J.S.D. (Atlanta, United States), denied with respect to the other academics for lack of standing. In September 2013, the Claimant Eli Lilly and Company (Lilly) launched a CDN $ 500 million claim against the Government of Canada under the North American Free Trade Agreement’s (NAFTA) investment chapter. The Claimant is challenging Canada’s invalidation of secondary patents related to the previously-known and patented active ingredients atomoxotine (Strattera) and olanzapine (Zyprexa), drugs used to treat attention deficit hyperactivity disorder, schizophrenia and bipolar disorder. Lilly is challenging the decision of Canadian courts to invalidate two patents for failing to comply with Canada’s requirement of usefulness after failing to prevail in Canadian courts. The challenge is under the “investment” chapter of NAFTA, rather than the IP chapter. Lilly argues that this “improper” and “discreditable” invalidation of its patents constitutes a NAFTA-prohibited “indirect expropriation” and a breach of NAFTA’s guarantee of a “minimum standard of treatment” for foreign investors. This case against Canada is a case of first impression and the first case pursuing investor-state dispute resolution (ISDS) with respect to intellectual property rights affecting pharmaceuticals, the case has heightened significance. The outcome of this case will be instructive about whether other foreign investors pursue future attacks on substantive policies embedded in national patent systems through the arbitral proceedings challenging differences in patentability standards that frustrate their “expectations”. Of particular concern is that this challenge may make countries hesitant to use legitimate flexibilities under the Agreement on Trade Related Aspects of Intellectual Property (TRIPS). In addition, the invalidated patents are secondary patents that Eli Lilly seeks to use to extend its patent term after initial patents expired, but without substantial evidence that these new inventions are in fact useful. Although Canada bars such patents under the “promise of a patent” for usefulness that is unique, other countries similarly bar such patents, under different patentability doctrines. The Brief addresses, amongst other issues: • NAFTA Chapter 17 patentability standards • Patentability standards in Canada and their judicial interpretation • Secondary patents and patent evergreening • Evolving nature of patent law • Abuse of the system of international investment protection and misuse of the system • Adverse chilling effect of the case on efforts to enhance access to medicines globally
The Impact of Vaillancourt v. the Queen on Canadian Criminal Law
Alberta Law Review
The 1987 Supreme Court decision of Vaillancourt Struck down s. 213(d) of the Criminal Code, finding that the constructive murder provision violated ss. 7and 11(d) of the Charter. This paper looks at how the courts have since applied Vaillancourt to other sections of the Criminal Code, particularly the remaining murder provisions. The analysis is based largely on a consequence-circumstance distinction, where legally consequences involve the harm caused by the accused and the circumstances refer to conditions that must be shown to exist before there can be a conviction. However, because murder is a unique crime with a "special stigma" attached to it, courts will not allow an objective standard of mens rea to form the basis of a murder conviction.