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Supreme Court fall preview: non-status Indians, privilege, weird animal appeals

|Written By David Dias

It’s back to work for the Supreme Court of Canada, which begins its fall session of hearings next week. The court will be receiving arguments on 25 appeals over the next three months, with a light calendar that includes the usual assortment of statutory and Charter challenges, commercial and civil appeals, and the occasional legal oddity.

Supreme Court of Canada   courtroom
The Supreme Court of Canada's fall session starts next week.
The Status of Non-Status Indians

Next week, the top court will get right down to business as it tackles a heavyweight in Daniels v. R , a 16-year-old constitutional challenge launched by Métis leader Harry Daniels, who is demanding that Métis and non-status aboriginals be recognized as “Indians” under the federal definition.

Daniels won at the Federal Court of Canada, but he saw the decision clawed back on appeal, where the court ruled that, while Métis were Indians, “non-status” aboriginals would have to be assessed individually.

The court will also hear a couple of Charter challenges next week (in Jordan v. R. and R. v. Williamson) on institutional delay within the justice system, and whether the right to be tried within a reasonable time frame is absolute or should be weighed against other factors.

Solicitor-client privilege in Quebec

In early November, the SCC looks at a rather esoteric matter that will nonetheless resonate within the legal community. In Canada v. Chambre des notaries du Québec, the Canada Revenue Agency is challenging a ruling that found notaries in Quebec — and only in Quebec — to be protected under solicitor-client privilege when ordered by the Minister of National Revenue to provide tax info on clients.

It’s an odd decision in that it imposes jurisdictional considerations on the federal Income Tax Act. The Supreme Court here will no doubt sort out the issue in la belle province while laying out principles that will prove influential across the country and further clarify the bounds of solicitor-client privilege.

Credit for time served: Truth in Sentencing Act

Political brinksmanship will also be on display in November as the court hears another Charter challenge of the Truth in Sentencing Act — Ottawa’s controversial attempt to limit judicial discretion in determining credit for time served.

Judges have railed against the tough-on-crime law, which was partially struck down last year by the Supreme Court. In R. v. Summers, the court ruled that judges may continue to offer credit of 1.5 days for every day served in custody prior to sentencing (to reflect the reality that well-behaved prisoners are typically released two-thirds into their sentence).

However, in R. v. Safarzadeh-Markhali, the Crown is appealing a decision by the Ontario Court of Appeal that struck down a specific provision that prohibits a trial judge from giving more than 1-to-1 pretrial credit if a justice of the peace denies bail due to a previous conviction.

Round II of this contentious battle begins on Nov. 4.

Can the World Bank be subpoenaed?

In World Bank v. Wallace, also being heard in November, the fate of SNC-Lavalin employees will hang in the balance as the Supreme Court rules on whether representatives of the World Bank, which aided the RCMP in its corruption investigation of SNC, can be called to testify.

As an international organization, the World Bank claims it is immune from court processes. The SCC here will determine how far that immunity goes in practice.

Arm’s-length regulation

Another big statutory challenge, Canadian Pacific Railway v. Canada, will be heard in December, as the court reviews regulations under the Fair Rail for Grain Farmers Act.

The law, which Ottawa enacted last year to give grain farmers greater access to rail transport, expands “interswitching” obligations, where railway operators are required to move containers from one rail line to another.

Prior to the amendments, operators were required to provide interswitching services to rail lines within 30 kilometres of each other; now that limit has expanded to 160 kilometres, placing an onerous new burden on the rail sector.

CP Rail is not challenging the law itself but rather the administration of regulations under the law. In its appeal, the company argues the Canadian Transportation Agency showed itself to be a puppet of Parliament by neglecting to carry out an independent review of the proposed regulations.

This hearing will focus on the extent to which administrative bodies must be free from political interference.

Bestiality and animal games

Then you have your odds and ends and legal curiosities — a couple of which deal with animals this fall.

In Riesberry v. R., an animal trainer was caught injecting performance-enhancing drugs into a race horse. He argues that horse racing is not technically a “game” under the Criminal Code and, therefore, he wasn’t committing a “crime.”

And, finally, in R. v. D.L.W., the highest court in the land will be required to hear an appeal, as of right, on bestiality.

The respondent here argues that the crime of bestiality requires actual penetration. We’re not going to touch that here, but come November the SCC definitely will.


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