The Supreme Court of Canada will hear the following appeals this week including the highly anticipated R. v. Cole, about a high school teacher who was charged after nude photos of a Grade 10 student were found on a laptop issued to him by his regional school board. The photos were ruled inadmissible by the Ontario Court of Appeal a year ago on the principle that Cole had a right to expect his personal files on the computer’s hard drive would remain private.

May 14 — Federal Court — Callaghan v. Chief Electoral Officer of Canada

Administrative law: This case relates to expenses during the 2006 federal elections. The chief electoral officer wouldn’t reimburse certain expenses submitted by some Conservative party candidates because he was concerned that the party might have incurred the advertising costs but then transferred them to the candidates since it had almost reached its spending limit. The candidates successfully challenged the officer’s decision before the Federal Court but the Federal Court of Appeal allowed the appeal.

May 15 — Ontario — R. v. Cole

Charter of Rights and Freedoms: Richard Cole was a computer science high school teacher. One of the school’s information technologists found naked photos of a female student on Cole’s computer, which he had accessed through another student’s email account. He was charged with possession of child pornography and fraudulently obtaining data from another computer hard drive. At trial, the judge determined that Cole’s s. 8 Charter rights had been violated and excluded the evidence. The Court of Appeal then allowed the appeal and remitted the case for trial. There is a publication ban in the case.

May 16 — Nova Scotia — Aucoin v. R.

Charter of Rights and Freedoms: Brendan Aucoin was convicted of possessing cocaine for the purposes of trafficking. On appeal, he argued that his s. 8 Charter rights had been violated when the police officer conducted a pat-down search, which the majority of the Court of Appeal dismissed.

The Supreme Court of Canada will hear the following appeals this week — all from Nova Scotia:

May 7 — Nova Scotia — Chehil v. R.

Charter of Rights and Freedoms: RCMP officers found a large stash of cocaine on Mandeep Singh Chehil when he was searched at the Halifax airport. He was charged with possession for the purpose of trafficking but the Supreme Court of Nova Scotia ruled the search violated his Charter rights and Chehil was acquitted. The Court of Appeal allowed the appeal and ordered a new trial.

May 8 — Nova Scotia — Annapolis County District School Board v. Marshall

Procedural law: Johnathan Marshall, 4, was playing outside his home located along a highway when he was hit by a school bus and suffered serious injuries. When he turned 19, he filed a lawsuit against the bus driver and the Annapolis County District School Board. The Supreme Court of Nova Scotia dismissed the case after the jury found no negligence on the bus driver’s part. The Court of Appeal allowed the appeal and ordered a new trial.

May 10 — Nova Scotia — A.B. v. Bragg Communications Inc.

Procedural law: A girl applied for a court order to require Bragg Communications Inc. to disclose the identity of the person who used a particular IP address to create a fake Facebook profile of her. She also requested to be identified by initials and ban the public from knowing the words in the fake Facebook profile. The judge granted the disclosure order but not the ban on the fake profile. The Court of Appeal upheld that decision. There is a publication ban and sealing order in the case.

At 9:45 a.m. on May 11, the SCC will also release its ruling in R. v. R.P. (Que.).

Do you know what day the 1867 Constitution Act came into force?

Queen Elizabeth II signed the Charter proclamation on April 17, 1982. (Photo: Archives Canada)

According to a recent survey conducted by the Canadian Constitution Foundation, only 54 per cent of respondents knew the answer. (The correct response is July 1, of course.)

With the 30th anniversary of the 1982 Constitution Act quickly approaching, several groups are doing what they can to spread awareness.

The CCF designated March 29 as “Constitution Day” in an effort to improve Canadians’ understanding of the act. The date was chosen to align with the constitution acts of 1867 and 1982, which both received Royal assent on that day. The official anniversary is April 17, as that was the day Queen Elizabeth II signed the Constitution Act of 1982.

Chris Schafer, CCF executive director, says the survey results show that Canadians’ constitutional knowledge is lacking. For example, only nine per cent of respondents knew the Charter doesn’t include protection for private property.

Bruce Elman, a constitutional law professor at the University of Windsor, agrees that there’s a general lack of awareness among members of the public. He recalls much discussion about the Constitution leading up to 1982, “but I don’t think there’s much talk of it now . . . even in terms of whether or not the court is getting the balance right,” he says.

Naturally, Elman is a strong supporter of education. During his time as Windsor law’s dean, he would speak to high school students about what they should know about the Constitution. “Unless you understand our Constitution, you don’t fully understand democracy,” he says.

“[The Constitution] really informs how we operate as citizens. Even something as simple as which level of government is responsible for what. In order to be an informed voter in the province of Ontario, you sort of have to know what is actually the responsibility of the provincial government and what’s the responsibility of the federal government,” he adds.

Elman says there needs to be a greater emphasis on teaching students about the Constitution and the Charter within the Canadian education system. “I think the most obvious way to give the public an understanding of their rights and about constitutional values more generally is first of all in the schools. I think the easiest way to do it is to get young minds thinking about these issues,” he says.

The CCF also aims to educate and spread awareness of the Constitution. It has even created a web site dedicated to “Constitution Day.”

Windsor law students recently launched the Charter Project to encourage Canadians to start discussions about the Charter. Among their various initiatives, they have produced public service announcements featuring Canadian celebrities and video interviews with legal experts.

As former dean, Elman supported the project from the very beginning. “I’m a huge supporter of anything that will get constitutional issues — Charter or otherwise — out into the public square as opposed to the rarified realm of law firms and judicial forums,” he says.

The Supreme Court of Canada will hear the following appeals this week, including the high-profile set of cases looking at the issue of alleged jury tampering by the Crown in a series of Ontario criminal cases:

March 13 — Federal Court — St.Michael Trust Corp., as Trustee of the Fundy Settlement v. R. and St.Michael Trust Corp., as Trustee of the Summersby Settlement v. R.

Taxation: The Fundy Settlement was settled by a resident in the Caribbean island of St. Vincent and had Canadian beneficiaries. The trustee is a corporation resident in Barbados. When the Fundy Settlement disposed of shares it owned in a Canadian company, the purchaser remitted amounts to the Canadian government on account of potential tax from the capital gains. The trustee sought to have the withheld amount returned, claiming an exemption because tax would only be payable in the country where the seller resides and the trustee claims the Fundy Settlement is a Barbados resident. The Minister of National Revenue claimed the tax exemption didn’t apply because the Fundy Settlement was a Canadian resident. The trustee then appealed the assessments on behalf of the Fundy Settlement, which the Tax Court of Canada and the Federal Court of Appeal dismissed.

The second case relates to the Summersby Settlement.

March 14 — Ontario — Ibrahim Yumnu v. R. and Vinicio Cardoso v. R.
March 15 — Tung Chi Duong v. R.
(3 separate appeals from same case)

Criminal law: The jury vetting cases. Ibrahim Yumnu, Vinicio Cardoso, and Tung Chi Duong were convicted of first-degree murder. On appeal, it was disclosed that the Crown took part in jury vetting in Barrie, Ont. The Crown had used police officers to obtain information on prospective jurors and didn’t disclose the information to the defence. The Ontario Court of Appeal dismissed the appeal, stating that the Crown’s failure to disclose the information to the defence did not affect the fairness of the trial. There are publication bans and sealing orders in the cases.

March 15 — Ontario — James Peter Emms v. R.

Criminal law: This case also relates to jury vetting. James Peter Emms was convicted of fraud relating to the sale of office furniture. The Ontario Court of Appeal found there was no miscarriage of justice and dismissed the appeal. There is a sealing order in the case.

March 15 — Ontario — Troy Gilbert Davey v. R.

Criminal law: This case also relates to jury vetting. Troy Gilbert Davey was convicted of the first-degree murder of a police officer. Davey accused the Crown of jury vetting but his appeal was dismissed. There is a sealing order in the case.

March 16 — Ontario — R. v. Marius Nedelcu

Charter of Rights and Freedoms: Marius Nedelcu took the victim for a ride on their employer’s motorcycle. The victim, who wasn’t wearing a helmet, suffered permanent brain damage after the motorcycle crashed. Nedelcu was charged with dangerous and impaired driving causing bodily harm. He was also sued by the victim and his family. In discovery, Nedelcu claimed he couldn’t remember what happened that evening but at trial he provided a detailed account of the accident. The Crown sought leave to cross-examine Nedelcu on his discovery evidence, which the trial judge approved. The issue on appeal is whether civil discovery evidence can be used to impeach the credibility of an accused who chose to testify.

The case of a Muslim woman seeking to wear her niqab to testify is being argued before the Supreme Court of Canada today.

The woman, identified as N.S., has accused her uncle and cousin of sexually assaulting her when she was a child. She wishes to wear her religious clothing — a hijab, a full body dress, and a niqab, which covers the entire face except for the eyes — when testifying against them.

The SCC will decide if a woman can wear her niqab when testifying in a sexual assault case. Photo: Alfred Weidinger

The defendants argue she should remove her niqab during her testimony and cross-examination to allow access to demeanor evidence, including seeing her facial expressions.

But N.S. claims the Charter of Rights and Freedoms protects her right to wear the niqab as part of her Muslim beliefs.

Joanna Birenbaum, director of litigation for the Women’s Legal Education and Action Fund, an intervener in the case, says if the SCC orders N.S. to remove her niqab, it could have far-reaching implications for sexual assault victims. “For Muslim women who already experience racism and other forms of discrimination, a signal from the court that the Canadian justice system is an unwelcome place to them will further exacerbate that problem.”

The problem she’s referring to is the number of sexual assaults that go unreported. Birenbaum claims that less than 10 per cent of all sexual assaults are reported and in certain minority or marginalized communities that number drops to less than 10 per cent.

She says: “if [Muslim women] believe that they will be required to remove their niqabs or put through a demeaning and humiliating process before having a determination of whether or not they can wear their niqabs while testifying, they’re simply not going to report [sexual assaults].”

On the contrary, if the SCC rules that N.S. is allowed to wear her niqab, Birenbaum says it will not be “a huge shift in Canadian jurisprudence.” She points to the hearsay rule, which permits evidence to be submitted before the court without the ability to see or cross-examine the witness. Other examples include witnesses, such as children, who testify behind a screen or in another room, and transcripts read in court.

“With a niqab-wearing witness, that witness is in the courtroom answering questions. Fundamentally and ultimately it’s the evidence — the words, the statements — that the person gives which are most important and that evidence is fully available,” she adds.

The judge at the preliminary inquiry ordered that N.S. remove her niqab before testifying but an Ontario Superior Court judge later dismissed that order. The Ontario Court of Appeal then overturned the Superior Court’s decision, ruling that witnesses must remove the niqab on the stand only if it’s been proven that it would threaten the accused’s right to a fair trial, which must be determined on a case-by-case basis.

“If a witness establishes that wearing her niqab is a legitimate exercise of her religious freedoms, then the onus moves to the accused to show why the exercise of this constitutionally protected right would compromise his constitutionally protected right to make full answer and defence,” Justice David Doherty wrote in the Court of Appeal’s ruling.

The appeal court sent the case back to the preliminary inquiry judge, but N.S. appealed the decision to the Supreme Court instead.

The Supreme Court of Canada will hear the following appeals this week. It’s a big week for copyright law cases:

Dec. 6 — Federal Court — Society of Composers, Authors and Music Publishers of Canada v. Bell Canada

Copyright law: Should commercial Internet websites that sell music downloads allow users to preview the works following the Copyright Board of Canada’s 2007 decision regarding royalties for communication to the public of musical works? It will address whether previews of musical works is a fair dealing for the purpose of research that doesn’t infringe copyright. There is a sealing order in the case.

Dec. 6 — Federal Court — Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada

Copyright law: At issue is whether a video game download that includes music fits under the Copyright Board of Canada’s 2007 decision regarding royalties for communication to the public of musical works.

Dec. 6 — Federal Court — Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada

Copyright law: This case also relates to the Copyright Board of Canada’s 2007 decision regarding royalties for communication to the public of musical works, involving Internet service providers.

Dec. 7 — Federal Court — Province of Alberta as represented by the Minister of Education v. Canadian Copyright Licensing Agency Operating as “Access Copyright”

Copyright law: The Copyright Board of Canada certified a tax for photocopying textbooks in Canadian schools (except for Quebec). The board determined that royalties were payable for some photocopies because they didn’t constitute a fair dealing. The Minister of Education applied for judicial review. The Federal Court of Appeal upheld the board’s ruling. The main question is whether photocopying textbooks for teaching in the classroom is a “fair dealing” under the Copyright Act.

Dec. 7 — Federal Court — Re: Sound v. Motion Picture Theatre Associations of Canada

Copyright law: This case also relates to royalties for the communication to the public of sound recordings in a movie soundtrack shown in a movie theatre or on TV.

Dec. 8 — Ontario — N.S. v. R.

Charter of Rights and Freedoms: A Muslim woman accused her cousin and uncle of sexually assaulting her. At the preliminary inquiry, she asked to testify while wearing a niqab for religious reasons but the Crown objected and the judge ordered her to remove her niqab. At issue is the Charter’s freedom of religion and right to equality versus the accused’s right to a fair trial and the value of assessing a witness’ credibility based on demeanour. There is a publication ban in the case.

Dec. 9 — British Columbia — Larry Wayne Jesse v. R.

Criminal law: Larry Wayne Jesse was convicted of sexual assaulting a woman at a party. At trial, the Crown introduced evidence from a previous sexual assault conviction that Jesse had not appealed. The judge admitted the evidence from his previous conviction and did not allow Jesse to challenge the conviction on a voir dire. The issue is whether the Crown has the right to introduce evidence from the accused’s prior conviction if it’s related to the current charge and whether the accused can challenge the validity of his previous conviction. There is a publication ban in the case.

The SCC will also release its ruling in:

Dec. 8 — Quebec — Attorney General of Quebec v. Department of Human Resources and Social Development Canada

A B.C. Supreme Court decision has posed an interesting debate: do legal aid rates provide the accused with a fair trial, and, the ability to assembling an adequate defence team? And, should the taxpayer bear the cost of an exhaustive defence team putting every aspect under a microscope when the average individual, unable to qualify for legal aid, could not afford such a protracted defence?

A B.C. judge has waded into the debate over enhanced fees for legal aid lawyers.

Pivotal to the issue is the public purse. Supreme Court Justice Sunni Stromberg-Stein, in a recent decision in R. v. Bacon, criticized the B.C. attorney general for negotiating fees above those publicly posted by the Legal Services Society.

“But, sadly, when the Attorney General is approached for ‘special fees,’ and engages in negotiations with counsel who seek a richer deal, cost and common sense take a back seat. This is evidenced by the enormous legal fees paid in the past in the Air India, Pickton and Basi and Virk trials. The Attorney General has stated that a counsel rate of $250 per hour is unsustainable, in an apparent move to reign in public spending on legal fees. There seems to be little political or public appetite to perpetuate the process used to determine fees and number of counsel as has occurred in the past,” she said.

In the case, accused killers Jamie Bacon, Matt Johnston, and Cody Haevischer came before Stromberg-Stein to argue that unless the AG’s office could double the LSS rate, they felt they could not assemble the defence team they needed and their rights to a fair trial would be compromised.

“Senior counsel want $250 per hour. The numbers of counsel requested for each defence team have varied. I understand each team wants two to three senior lawyers,” Stromberg-Stein said in reasons. “Funding a second lawyer is exceptional. It is a very rare occurrence, to ever fund three lawyers.”

Bacon, Johnston, and Haevischer along with co-accused Michael Le (who did not participate in the proceedings) are all alleged members of the Red Scorpion gang and charged in 2009 with first degree murder of six individuals. The Surrey Six murders are considered B.C.’s worst gang homicides.

Bacon’s lawyer Kimberley Eldred, who spoke for all the defence counsel, maintained since June 2010, the AG’s office has not dealt in good faith with funding issues and has the ability to increase the LSS funding. She argued that this case required a remedy of proper funding, not a stay of proceedings, and asked the court to establish a funding structure. She also maintained the hourly rate structure goes to the quality of counsel an accused person can hire, and the degree of devotion that counsel can give to the accused person’s case.

LSS spokesperson Brad Daisley said currently legal aid lawyers receive between $83 and $92 an hour with an “enhanced” fee for more senior counsel rising to $125 an hour on major complex cases. On larger cases that can monopolize a lawyer’s time, the attorney general has the ability to add a 15 per cent fee to LSS-appointed counsel, which would raise the legal aid lawyer’s fee to $144 an hour. This only happens in “rare” cases, said Daisley.

Justice Stromberg-Stein pointed out that the comparison should not be between what LSS could pay and what the AG’s department could spend on counsel but rather if B.C.’s legal aid rate fell below the standard offered by other provinces to enable the accused to obtain counsel.

“I conclude government rates paid in other cases are not relevant. . . . The hourly rate, without context, is not a comparator,” said Stromberg-Stein. “What is a comparator is the legal aid rate paid in other provinces. British Columbia, by far, offers the richest compensation for counsel engaged in complex trials.”

The judge noted the lawyers had not returned the LSS certificates or applied to withdraw from the case, an option if they felt they were not able to financially take on the case.

“When assessing Charter rights related to representation by publicly funded counsel, the test is simply whether counsel is ‘sufficiently qualified to deal with the matter at issue,’ not whether counsel is the better or best qualified lawyer,” Stromberg-Stein reasoned.

She cited the Rowbotham and Fisher applications, but noted that few courts today follow Fisher. She concluded neither application of the law applied here.

The Surrey Six trial is expected to be a complex, large trial. However, the judge was critical of the rising costs of mega-trials. “What is a ‘mega’ trial if not a big complex criminal trial?” she asked. “Simply describing a trial as ‘mega’ seems enough to ensure that it will mushroom out of control and take on a life of its own. The description creates the monster,” she said, adding in reasons the more resources that poured into these larger, longer trials, the more complex they tend to be and thus, result in a self-fulfilling prophecy.

In the end, Stromberg-Stein simply ruled: “I agree with counsel for the Attorney General. This case does not invite judicial intervention or remedial action. It invites counsel to make a decision: they must decide whether they will accept what is being offered by LSS, as enhanced by the Attorney General, or whether they will seek to withdraw.”