The Canadian Bar Review

FOXES, HENHOUSES, AND THE CONSTITUTIONAL GUARANTEE OF JUDICIAL REVIEW

Mark Mancini — 2024-09-18

Canadian legislatures cannot completely forbid judicial review of administrative action. This has been a matter of constitutional law since the Crevier v AG (Quebec) decision. However, Crevier framed the constitutional guarantee of review around the much-maligned concept of jurisdictional error. In Canada (Citizenship and Immigration) v Vavilov, the Supreme Court held that jurisdictional errors were no longer relevant in conducting judicial review. This leaves the content of the constitutional guarantee obscure, a problem of considerable concern given recent cases on the matter.

This article argues that the constitutional guarantee must be reframed and should be re-articulated to protect judicial review over all questions of law and correctness review on constitutional questions, specifically those relating to the division of powers. The core aim uniting these functions is the prevention of foxes in henhouses”—unreviewable administrative legal authority. This revised constitutional guarantee is consistent both with the constitutional principles underlying Crevier and with the development of the modern law of judicial review, in which questions of law are reviewed on a presumptive deferential standard under an intensity of review framework. Though this revised constitutional guarantee is open to challenge, it is a better way of specifying the supervisory jurisdiction of superior courts considering the modern law of judicial review.

The paper tests out the new constitutional guarantee in light of two case studies: (1) the Federal Court of Appeal’s Best Buy decision, which dealt with the scope of a right of appeal in light of a privative clause; and (2) the Alberta Sovereignty Act, which purports to establish a standard of patent unreasonableness for questions relating to the division of powers.

LA GÉNÉALOGIE DE LA FAUTE LOURDE EN DROIT QUÉBÉCOIS

Charles Bourque-Chapleau — 2024-09-18

Gross fault has existed as a legal concept for over two millennia. Originating in Roman law, it has evolved over the centuries, notably through the definition given to it by the French jurist Pothier. Quebec law initially adopted this definition of gross fault. The concept was then shaped by decisions of our courts, until lawmakers gave it an official definition with the adoption of the Civil Code of Quebec (“faute lourde”). Today, the application of gross fault is rendered difficult by the strict interpretation given to it by judges. An analysis of the foundations of gross fault and of recent case law encourages us to believe that the definition will be revised to conform more closely to the wording of the Civil Code of Quebec.

“OVER THE HILLS: SECTION 12 OF THE CHARTER AT 40”

Colton Fehr — 2024-09-18

The longstanding framework for determining whether state conduct subjects an individual to cruel and unusual treatment or punishment contrary to section 12 of the Charter was recently challenged in R v Hills and R v Hilbach. While the Supreme Court defended its core jurisprudence, it also endeavoured ‘to provide greater clarity and more guidance’ for future challenges under the ‘severity’ track of section 12. While this afforded the Court an opportunity to take stock, several controversial features of its jurisprudence were left untouched. Three in particular warrant further consideration: (i) revising how courts should determine the ‘low end’ of the sentencing range when assessing whether a law meets the gross disproportionality standard; (ii) abandoning use of an existing case resulting in grossly disproportionate punishment where the case is considered ‘marginal’ and therefore would not qualify as a ‘reasonable hypothetical’; and (iii) the Court’s inconsistent reasons for including general deterrence as a factor when considering whether a mandatory minimum sentence is consistent with section 12 of the Charter.

PARADOXICAL RACE VISIBILITY IN CANADIAN SENTENCING LAW

Danardo Jones — 2024-09-18

Using insights from Critical Race Theory (“CRT”), this article illustrates how Canada’s proportionality-driven criminal sentencing structure (re)produces, invigorates, and sustains pernicious race-based discourses. Indeed, the concept of proportionality can reinforce archaic norms and notions about Black bodies’ status, belonging, identity, and worth. Moreover, the demands of proportionality, with its fixation on calibrating blame, can distort and pathologize Black lives in a perverse attempt at sentence mitigation, resulting in what I refer to as the paradox of visibility. The article uses an analysis of Impact of Race and Culture Assessments (IRCAs) reports to explore paradoxical race visibility. This allows us to better comprehend and redefine the impact of incorporating race awareness into the criminal sentencing process, which can have positive and negative consequences. Indeed, introducing race at the sentencing phase is a challenging and perhaps even a paradoxical manoeuvre—but one that may also be logical insofar as we operate within the cruel illogic of white supremacy.

LE PORT DE CAMÉRAS CORPORELLES PAR LES POLICIERS PEUT-IL PERMETTRE DE LUTTER CONTRE LE PROFILAGE RACIAL ?

Fernando Belton — 2024-09-18

Police brutality and racial profiling are neither novel concepts nor the outcome of a few isolated incidents. They stem, rather, from longstanding systemic racism entrenched within law enforcement agencies.

To combat this racism, citizens have armed themselves with mobile phones and cameras, documenting incidents of police misconduct, which has, in turn, given rise to significant tumult within civil society. This newfound visibility has shed light on the grievances that many oppressed communities have been denouncing for decades. From Rodney King to George Floyd, both in the United States and in Canada, there has been a crescendo of calls for the use of body-worn cameras by police officers as a measure against racial profiling and against the broader issue of systemic racism. This article contends that the results achieved to date from the implementation of body-worn cameras within law enforcement are far from meeting the lofty expectations initially established. By deconstructing the myths surrounding police officer accountability by the use of body-worn cameras and the purported objectivity of video evidence, this article’s principal argument is that these tools are minimally effective within criminal law and police ethics in holding officers accountable for misconduct and racial profiling. It is imperative to advocate for greater transparency and public discourse to understand how these tools might be of limited use against such a profoundly complex issue.

A MISSED OPPORTUNITY IN R V LANGAN

Samuel Mazzuca — 2024-09-18

The traditional rule against prior consistent statements continues to be mired in rigidity and unnecessary complexity. The courts continue to admit and use prior consistent statements for the truth of their content and by extension, for the impermissible purpose of bolstering a witness’s credibility. Juries continue to be improperly instructed on the proper uses and misuses of such statements. Despite warnings from provincial appellate courts across the country, counsel continue to tender prior consistent statements without articulating a precise basis upon which they should be admitted. This article attempts to shed light on this issue by reviewing appellate caselaw in the post-Khan era. In R v Khan, the concurring set of reasons put forth a framework for replacing the traditional rule with a principled approach to admissibility. Yet, the courts have been reluctant to embrace this principled approach. The Supreme Court of Canada had an opportunity to directly deal with this issue in R v Langan, however, it decided to sidestep this issue entirely. This article assesses the impacts of this decision and further argues that adopting a principled approach would ease many of the common issues with which courts struggle when assessing the admissibility and use of prior consistent statements.

REVERSING THE PRESUMPTION

Steven Penney — 2024-09-18

The traditional bar against admitting witnesses’ prior inconsistent statements for their truth has been the subject of longstanding criticism. The availability of the declarant for cross-examination at trial, the critique runs, allows the parties to test the statements’ reliability and prevents triers of fact from giving them undue weight. While the Supreme Court of Canada has endorsed this critique and admitted prior inconsistent statements under the principled hearsay exception, such statements are still subject to a presumption of exclusion that can only be rebutted in a voir dire considering multiple doctrinal factors. We argue for the reversal of this presumption based on two insights. First, many common law jurisdictions have discarded the traditional rule and made prior inconsistent statements at least presumptively admissible. Second, our statistical and qualitative analyses of reported Canadian cases show that such statements are admitted far more often than they are excluded, especially when there is a meaningful opportunity to cross-examine the witness. These developments suggest that it is past time for Canada to make prior inconsistent statements presumptively admissible as non-hearsay. This presumption would be rebutted only when meaningful cross-examination is impossible.

Transnational and Cross-Border Criminal Law

Gerry Ferguson — 2024-09-18

Edited By Robert J Currie
Toronto: Irwin Law Inc, 2023, Pp. 589