case in intel

Osgoode Hall Law Journal, 1972

In a recent article in the Osgoode Hall Law Journal,' Professor P. W. Hogg criticized the decision of the Supreme Court of Canada in Bell v. Ontario Human Rights Commission. 2 Principally his criticisms were threefold. First, he disapproved of the wide view the Court took of its powers to review decisions for jurisdictional error. Secondly, he took issue with the Court's finding that the accommodation in question was not a "self-contained dwelling unit". 3 Finally, he rejected the Court's decision to inquire into the merits of the case in favour of the decision of 'the Ontario Court of Appeal 4 that review was untimely until the board of inquiry had had an opportunity of determining the jurisdictional question. On the question whether the accommodation came within the Act, I accept Professor Hogg's analysis and agree with him that the Supreme Court was wrong at this point. However, with respect to the issues of the authority of the Court to review for jurisdictional fact and the timeliness of judicial review, there are certain points at which I find Professor Hogg's conclusions difficult to accept. The general basis upon which the courts define their power to review decisions for jurisdictional error is that in the conferring of statutory powers the legislature attributes tentative decision-making authority to the statutory decision-maker with respect to some issues and final decision-making authority with respect to other issues. Those over which the decision-maker has only tentative authority are issues affecting his jurisdiction. Those over which he has final authority are those within his jurisdiction and are not generally subject to review. 5 The principal difficulty in classifying various stages of the decision-making process into one of these two categories is caused by the fact that the legislature seldom, if ever, indicates which issues it considers jurisdictional and which it considers to be intra-jurisdictional.

Winter v. Canada (Attorney General), 2016 SKQB 3, 2016

Criminal law --- Narcotic and drug control — Administration and enforcement — Forfeiture — Offence-related property Accused charged on 16 Informations with total of 42 charges for drug and other offences — Charges, some of which were serious, were numerous and involved repeated behaviour with respect to possession of cannabis — Quantity of money was seized from accused's house totalling $58,349.90 — Counsel for accused withdrew as lawyer due to inability to pay retainer — Accused released from custody following initial charges and was living in home — Title to house registered in accused's name was subject to mortgage and other encumbrances in form of writ of execution and family law support order — Exact nature of these other encumbrances was not clearly set forth in materials but from affidavit accused was in arrears of child support obligation some $40,000 — Mortgage on home was in arrears and bank had commenced foreclosure proceedings — Accused had significant equity in house, perhaps as much as $150,000 — Accused brought application to have seized funds released from management order to pay legal and living expenses pursuant to s. 462.34(4)(c)(i) and (ii) of Criminal Code — Application allowed in part — Forty thousand ordered released to be used exclusively for legal expenses of accused — There should be no payment from seized funds for living expenses of accused — No order would be made to allow reimbursement of family members for payments made — There was no statutory requirement in Code constraining such release of funds to only those cases where Legal Aid was not available to take on defence of accused — If unsuccessful in application, accused would not be having counsel represent him — There were novel, complex points of law to be argued with respect to medical marijuana licence and Canadian Charter of Rights and Freedoms arguments involving searches and other matters — Potential encumbrance holders in cash did not yet hold interest in that property — Court declined to order either of encumbrance holders should be provided with notice of these proceedings — Reasonable living expenses did not equate to preservation of equity in privately owned home — As accused could have chosen other lawyers, payment for travel time sought by accused's counsel was not subject to payment — Reasonable amount for legal fees would be based on maximum of $200 per hour for 160 hours — This provided level of recompense in excess of Legal Aid tariff but below what solicitor would normally have charged for services.

International Legal Materials, 2007

Constitutional law-Charter of Rights-Application-Searches and seizures outside Canada-Whether Canadian Charter of Rights and Freedoms applies to extraterritorial searches and seizures conducted by Canadian police officers-If not, whether evidence obtained abroad ought to be excluded because its admission would render trial unfair-Canadian Charter of Rights and Freedoms, ss. 7, 8, 11(d), 24(2), 32. Legislation-Interpretation-Canadian Charter of Rights and Freedoms-Scope of extraterritorial application of Charter-Presumption of conformity with international law. RCMP officers commenced an investigation of the accused, a Canadian businessman, for suspected money laundering activities. They sought permission from the Turks and Caicos Islands authorities to conduct parts of their investigation on the Islands where the accused's investment company is located. Detective Superintendent L of the Turks and Caicos Police Force, who was in charge of criminal investigations on the Islands, agreed to allow the RCMP to continue the investigation on Turks and Caicos territory, but warned the officers that he would be in charge and that the RCMP would be working under his authority. During a one-year period, the RCMP officers conducted searches of the accused's office on the Islands and on each occasion L was with them. At trial, the Crown adduced documentary evidence that the police had gathered from the records of the accused's office. The RCMP officers testified that they were aware there were no warrants authorizing the perimeter searches of the accused's office but that they had relied on L's expertise and advice regarding the legalities of investigations conducted on the Islands. They also testified that they had understood warrants to be in place for the covert entries and had read a document they understood to be a warrant authorizing the overt entries. However, no warrants was entered into evidence at trial. The accused sought to have the documentary evidence excluded, pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms, on the basis that the evidence was obtained in violation of his right under s. 8 of the Charter to be secure against unreasonable search and seizure. He submitted that the Charter applies to the actions of the RCMP officers in the course of their searches and seizures at his office, notwithstanding that those actions took place outside Canada. The trial judge held that the Charter did not apply, dismissed the application and convicted the accused of two counts of money laundering. The Court of Appeal upheld the convictions.