Tag Archives: Constitutional

Tessier Ltée v. Quebec (Commission de la santé et de la sécurité du travail), 2012 SCC 23

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On appeal from the Court of Appeal for Quebec

Constitutional law — Division of powers — Labour relations — Company normally and habitually providing crane and heavy equipment rental services and, to lesser extent, stevedoring services — Whether stevedoring activities form part of federal jurisdiction over shipping — Whether stevedoring activities form integral part of federally regulated undertaking — Whether company’s employees governed by federal or provincial occupational health and safety legislation — Constitution Act, 1867, ss. 91(10), 92(10), and 92(13).

Held: The appeal should be dismissed.

T is a heavy equipment rental company that rents out cranes and heavy equipment. It also engages in intra‑provincial road transportation and maintenance and repair of equipment. In 2005‑2006, some of its cranes were used for stevedoring. This activity represented 14 percent of its overall revenue and 20 percent of the salaries paid to employees. T’s stevedoring services were not performed by a discrete unit of employees; the employees were fully integrated into T’s workforce and worked interchangeably across the different sectors of the organization. At the relevant time, all of T’s activities took place within the province of Quebec.

In 2006, and based on the Stevedores Reference, [1955] S.C.R 529, T’s parent company sought a declaration from Quebec’s Commission de la santé et de la sécurité du travail (“CSST”) that T’s activities fell under federal jurisdiction and that it was not, as a result, subject to provincial occupational health and safety legislation. T argued that its stevedoring activities are part of the federal government’s jurisdiction over shipping, with the result that its employees should be federally regulated. The CSST concluded that T’s activities came under provincial jurisdiction. This conclusion was upheld by the Commission des lésions professionnelles but was overturned by the Superior Court. The Court of Appeal allowed the appeal and agreed that provincial regulation applied, based primarily on the findings that stevedoring represented only a minor part of T’s overall operations, that it did not have a special stevedoring division, and that T had not adduced evidence of the nature of its contractual or organizational relationships with the federal shipping companies it serviced.

Tessier Ltée v. Quebec (Commission de la santé et de la sécurité du travail), 2012 SCC 23

United Food and Commercial Workers, Local 401 v Alberta (Attorney General), 2012 ABCA 130

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This is an appeal of a decision that United Food and Commercial Workers, Local 401 acted contrary to the Personal Information Protection Act (PIPA) by collecting images of individuals crossing the picket line, with plans to publish them on the Internet. The Union argued that these activities were subject to the journalistic exception in PIPA. Alternatively, they argued that PIPA impugned the Charter protected right to freedom of expression. The Court of Appeal states:

“[79] The Adjudicator’s interpretation of the Act, and the order she granted interfered with the union’s Charter rights. The chambers judge attempted to remedy that breach by providing expansive and somewhat artificial interpretations on some of the terms used in the Act, and by declaring other portions of the Act inoperative.

[80] The particular problem that arises in this appeal could be remedied in any one of a number of ways. Striking out or reading down portions of the statute are not attractive options. The courts have neither the institutional nor the legislative ability to rewrite the Act. It is possible that all of the impugned provisions of the Act might have a constitutional application in some cases, so long as protected rights are not engaged. There is no obvious way to prune this statute so as to make it constitutional. Artificially expanding the meaning of “journalism” is not a helpful solution.

[81] The appropriate remedy in this case is, therefore, not to strike down any portion of the statute. A declaration should issue that the application of the Act to the activities of the union was unconstitutional, because it infringed on the union’s Charter rights. The order of the Adjudicator should be quashed. It is within the particular mandate of the Legislature to decide what amendments are required to the Act in order to bring it in line with the Charter.”

United Food and Commercial Workers, Local 401 v Alberta (Attorney General), 2012 ABCA 130

R. v. Yat Fung Albert Tse et al., 2012 SCC 16

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On appeal from the British Columbia.

Held : The appeal should be dismissed. The declaration of invalidity is suspended for 12 months to allow Parliament to redraft a constitutionally compliant provision.

Constitutional law — Charter of Rights — Search and seizure — Interception of private communications — Police intercepting communications without authorization pursuant to s. 184.4 of Criminal Code on grounds interceptions were immediately necessary to prevent serious harm to person or property and judicial authorization not available with reasonable diligence — Whether s. 184.4 contravenes right to be free from unreasonable search and seizure pursuant to s. 8 of the Charter — Whether provision saved under s. 1 — Canadian Charter of Rights and Freedoms, ss. 1 and 8 — Criminal Code, R.S.C. 1985, c. C‑46, ss. 184.4, 185,186 and 188.

In this case, the police used s. 184.4 to carry out unauthorized warrantless interceptions of private communications when the daughter of an alleged kidnapping victim began receiving calls from her father stating that he was being held for ransom. Approximately 24 hours later, the police obtained a judicial authorization for continued interceptions, pursuant to s. 186 of the Code. The trial judge found that s. 184.4 contravened the right to be free from unreasonable search or seizure under s. 8 of the Charter and that it was not a reasonable limit under s. 1. The Crown has appealed the declaration of unconstitutionality directly to this Court.

Section 184.4 permits a peace officer to intercept certain private communications, without prior judicial authorization, if the officer believes on reasonable grounds that the interception is immediately necessary to prevent an unlawful act that would cause serious harm, provided judicial authorization could not be obtained with reasonable diligence. In principle, Parliament may craft such a narrow emergency wiretap authority for exigent circumstances. The more difficult question is whether the particular power enacted in s. 184.4 strikes a reasonable balance between an individual’s right to be free from unreasonable searches or seizures and society’s interest in preventing serious harm. To the extent that the power to intercept private communications without judicial authorization is available only in exigent circumstances to prevent serious harm, this section strikes an appropriate balance. However, s. 184.4 violates s. 8 of the Charter as it does not provide a mechanism for oversight, and more particularly, notice to persons whose private communications have been intercepted. This breach cannot be saved under s. 1 of the Charter.

Section 184.4 recognizes that on occasion, the privacy interests of some may have to yield temporarily for the greater good of society — here, the protection of lives and property from harm that is both serious and imminent. The stringent conditions Parliament has imposed to ensure that the provision is only used in exigent circumstances, effect an appropriate balance between an individual’s reasonable expectation of privacy and society’s interest in preventing serious harm. To that extent, s. 184.4 passes constitutional muster. In its present form however, s. 184.4 contains no accountability measures to permit oversight of the police use of the power. It does not require that “after the fact” notice be given to persons whose private communications have been intercepted. Unless a criminal prosecution results, the targets of the wiretapping may never learn of the interceptions and will be unable to challenge police use of this power. There is no other measure in the Code to ensure specific oversight of the use of s. 184.4. In its present form, the provision fails to meet the minimum constitutional standards of s. 8 of the Charter. An accountability mechanism is necessary to protect the important privacy interests at stake and a notice provision would adequately meet that need, although Parliament may choose an alternative measure for providing accountability. The lack of notice requirement or some other satisfactory substitute renders s. 184.4 constitutionally infirm. In the absence of a proper record, the issue of whether the use of the section by peace officers, other than police officers, renders this section overbroad is not addressed.

The objective of preventing serious harm to persons or property in exigent circumstances is pressing and substantial and rationally connected to the power provided under s. 184.4. It is at the proportionality analysis of R. v. Oakes that the provision fails. The obligation to give notice to intercepted parties would not impact in any way the ability of the police to act in emergencies. It would, however, enhance the ability of targeted individuals to identify and challenge invasions to their privacy and seek meaningful remedies.

R. v. Yat Fung Albert Tse et al., 2012 SCC 16

Canada (Attorney General) v. Bedford, 2012 ONCA 186

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On appeal from the judgment of Justice Susan G. Himel of the Superior Court of Justice dated September 28, 2010, with reasons reported at 2010 ONSC 4264, (2010), 102 O.R. (3d) 321 (S.C.).

prostitution – bawdy houses – Section 7 & 2(b) of the Charter – 1990 Prostitution Reference – standing to challenge Criminal Code provisions

[3] At issue in this case is the constitutionality of three provisions of the Criminal Code, R.S.C. 1985, c. C-46, which form the core of Parliament’s response to prostitution:
1. Section 210, which prohibits the operation of common bawdyhouses. This prevents prostitutes from offering their services out of fixed indoor locations such as brothels, or even their own homes;
2. Section 212(1)(j), which prohibits living on the avails of prostitution.
This prevents anyone, including but not limited to pimps, from profiting from another‟s prostitution; and
3. Section 213(1)(c), which prohibits communicating for the purpose of prostitution in public. This prevents prostitutes from offering their services in public, and particularly on the streets.

Issue 1: Do Ms. Bedford and Ms. Scott have standing to bring the constitutional challenge?
[50] There is a simple reality here. Ms. Lebovitch has private interest standing to challenge the three Criminal Code provisions. Neither appellant says otherwise. This placed all the constitutional issues squarely before theapplication judge and now places them before this court. Accordingly, the issue of Ms. Bedford‟s and Ms. Scott‟s standing is irrelevant. We decline to address it.

Issue 2: Are the respondents precluded from challenging the constitutionality of the bawdy-house and communicating provisions
(Criminal Code, R.S.C. 1985, c. C-46, ss. 210 and 213(1)(c)) by the decision of the Supreme Court in the Prostitution Reference, coupled with the principle of stare decisis?
[52] As we will explain, we conclude that the application judge did not err in considering whether or not the bawdy-house and communicating provisions violate s. 7 of the Charter. The reason is that both the legal issues raised, and the legal framework to be applied, are different now than they were at the time of the Prostitution Reference. By contrast, we conclude that the application judge erred in reconsidering whether or not the communicating provision is an
unjustified infringement of s. 2(b) of the Charter. The Supreme Court definitively decided this issue in the Prostitution Reference, and only that court may revisit it.

Held: Appeal allowed in part.

Canada (Attorney General) v. Bedford, 2012 ONCA 186

R. v. Walters, 2012 ABQB 83

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14-year-prison sentence for three counts of sexual assault with a weapon, one count of robbery, one count of unlawful confinement and one count of theft reduced by 7 years. Credit given for pre-sentence custody, mistreatment by police and poor conditions in the Edmonton Remand Centre.

The Honourable Mr. Justice R.A. Graesser:

“[130] By my calculation, Mr. Walters has been in custody for 909 days to February 1, 2012. 45 days of that should be treated as time served for the immigration offences. The pre-sentence custody period Mr. Walters is entitled to credit for is thus 864 days. Mr. Walters is thus entitled to a credit against his sentence in the amount of 2045 days, based on 2.25 to 1.

[131] I have already determined that Mr. Walters should receive a reduction of 9 months on account of the triple bunking, and 3 months for the lack of clean underwear. He is also entitled to a credit of 4 months (16 weeks) for the initial s.7 breach. The total credits are therefore 1 year (52 weeks) plus 292 weeks plus 16 weeks for a total of 360 weeks.

[132] Mr. Walters global sentence of 14 years (728 weeks) is reduced to a remaining sentence of 368 weeks (7.08 years)”.

R. v. Walters, 2012 ABQB 83