OTTAWA – From the future of the beleaguered Senate, to the constitutionality of security certificates, Canada’s top court is in for a busy fall session. The court will face some of these cases with less than a full bench, after the newest justice, Marc Nadon, said he would temporarily sit out because a legal challenge has been launched of his appointment.
Here’s a brief look at some of the biggest cases that will be argued before the high court over the next few months:
Oct. 10: Minister of Citizenship and Immigration vs. Mohamed Harkat
At issue: The high court is being asked to determine the constitutionality of the revised security certificate regime and whether it was reasonable to issue a security certificate in this case.
Case in brief: The Algerian refugee was arrested in Ottawa under a security certificate in December 2002 on suspicion of being an al-Qaida sleeper agent.
The security certificate process is a seldom used tool under immigration law that allows the government to deport non-citizens deemed a threat to Canada, or lock them up if they refuse to leave, typically due to fear of persecution. The latter usually results in a court challenge in which much of the evidence is kept secret. The regime was re-tooled in 2007 after the Supreme Court found it violated the Charter, but Harkat argues the new system is no better.
The Federal Court and Federal Court of Appeal upheld the constitutionality of the security certificate regime. However, the Federal Court of Appeal ruled Harkat’s Charter rights were breached because Canadian Security Intelligence Service destroyed some of the original evidence against him, and ordered evidence derived from those original records excluded. While the Federal Court ruled this particular security certificate was reasonable, the appeal’s court overturned the decision because of its decision to exclude the evidence.
Oct. 15: Attorney General of Canada vs. Christopher John Whaling
At issue: The high court is being asked to determine the constitutionality of Bill C-59, the Abolition of Early Parole Act — one of the Conservative government’s tough on crime policies that came into force in March 2011. Of particular concern in this case is the retroactive application of the new law.
Case in brief: When the North Vancouver weapons dealer was first sentenced, the law stated that as a first time, non-violent offender, he was entitled to day parole after serving one-sixth of his sentence, and full parole after serving one-third if authorities agreed he would not likely commit a violent offence in the short-term. Shortly after, the new bill repealed the Accelerated Parole Review process and took those rights away.
Both his trial judge and the Court of Appeal ruled the change was tantamount to double jeopardy — extra punishment for the same crime.
Nov. 12-14: Reference — Senate Reform
At issue: The Harper Conservatives have promised Senate reform since taking office in 2006. Several bills dealing with term limits, the renewability of term limits and the consultative process have been introduced, thus far unsuccessfully. Canada’s official Opposition is advocating abolition. Also, an ongoing spending scandal involving a handful of high-profile Senate appointments and Stephen Harper’s former chief of staff has thrust the future of the upper chamber to the top of the political agenda.
Case in brief: The federal government has asked the Supreme Court to answer four questions. In a nutshell:
1. Can Parliament set term limits for senators?
2. Can Parliament, or the provincial and territorial legislatures, set out a consultative procedure to determine public preferences for potential nominees for appointment to the Senate? (i.e., a referendum.)
3. Is it within the legislative authority of Parliament to repeal provisions providing for property qualifications for senators?
4. Can the Senate be abolished through the general amending procedure in Sect. 38 of the Constitution Act of 1982 — the “7/50” procedure that requires consent from at least seven provinces and half the population. Or, is unanimous consent from all provinces required.
Dec. 5: Ontario Ministry of Community Safety and Correctional Services vs. Information and Privacy Commissioner
At issue: The high court is being asked to consider the public’s right to know how many sex offenders live in their neighbourhood, and the safety and security of those offenders.
Case in brief: An unnamed journalist made a request under Ontario’s Freedom of Information and Protection of Privacy Act to obtain a list that included the first three digits of every postal code and how many registered sex offenders live in each area in order to create an interactive map. The province denied the request, citing concerns the individuals might be identified and subjected to vigilantism.
The Information and Privacy Commissioner disagreed and ordered the records released. The province sought a judicial review of the decision but the divisional court sided with the commissioner. The province also lost its appeal.
Dec. 9: Matthew David Spencer vs. Her Majesty the Queen
At issue: The high court is being asked to decide if persons are guilty of making child pornography available if they didn’t know they were doing it. It’s also being asked to determine if an accused person has a reasonable expectation of privacy with respect to his or her Internet subscriber information, and if police needed a warrant to obtain the details from Shaw.
Case in brief: The Saskatoon man downloaded child pornography using the person-to-person file sharing program Limewire. The program automatically creates a “share” folder on the user’s computer and it’s incumbent on the user to turn off the feature if he or she doesn’t want other users to access the files. Spencer argued he didn’t know that and failed to turn off the feature. A police officer searched the share file on his computer and found the illicit images. The officers learned the IP address was assigned to Shaw Communications and wrote the company to request the subscriber’s name and address. Shaw obliged and a warrant to search the home where he was residing was obtained. His computer was seized, and he was charged with possession of child pornography and making child pornography available.
The trial court convicted him of possession but acquitted him on the other charge because he didn’t intend to make the images available to others. He appealed his possession conviction, while the Attorney General appealed the acquittal. The appeal’s court dismissed his appeal and allowed the government’s.
Click here for the Supreme Court’s full fall agenda.
tcohen@postmedia.com
Twitter.com/tobicohen
