Canadian Lawyer

July 2021

The most widely read magazine for Canadian lawyers

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UPFRONT 10 OTTAWA UPDATE NEWS BRIEFS SCC rules on consent, capacity Supreme Court agrees that capacity is a precondition to consent and that incapacity prevents consent TRIAL JUDGES do not have to consider consent and capacity to consent separately in criminal cases or to decide them in a particular order, the Supreme Court of Canada ruled in a 6/2/1 decision in May. In R. v. G.F., the majority of the Supreme Court agreed that capacity is a precondi- tion to consent and that incapacity prevents consent. Justice Suzanne Côté, who would have dismissed the appeal, including on the evidence, found that incapacity can vitiate consent rather than prevent it. G.F. and R.B., a common-law couple, were charged with sexually assaulting a 16-year- old during a camping trip. The issue at trial was whether the teenager — who had been drinking heavily and went to lie down in the respondents' trailer — had consented to sexual No legal basis to restore church membership Five Toronto-area churchgoers have no legal basis for asking the courts to restore their voluntary church membership, the Supreme Court of Canada ruled in May. In a unanimous decision in Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, the court noted that many voluntary associations have rules and sometimes a constitution, bylaws in the pursuit of common goals and a governing body to adopt and apply the rules. These may assist in the pursuit of shared objectives but do not in and of themselves give rise to contractual relationships between the individuals who join. Refugee lawyers file challenge to border restrictions The Canadian Association of Refugee Lawyers initiated a case on May 4 against the federal government's Canada-U.S. border restrictions that have prevented most refugee claimants from entering Canada since the start of the COVID-19 pandemic. The association's media release noted that, following the COVID-19 outbreak, Bill Blair, public safety and emergency preparedness minister, initially stated that the government would not turn away refugee claimants at the Canadian border and instead impose a health screening and a 14-day quarantine. However, in March 2020, the government announced border restrictions that turned back refugee claimants to the U.S. CJC releases handbooks for self-represented litigants The Canadian Judicial Council has published three new informational handbooks for self- represented litigants on civil, criminal, or family litigation procedures for each province and territory, available in both English and French. The handbooks, produced by the council together with the Judicial Education Society of British Columbia, aim to assist individuals navigating the justice system without the representation of legal counsel as they prepare for court proceedings. It also offers judges tools to suggest to self-represented litigants, the council said in a press release. Lawyers laud Law Commission of Canada revival Among the federal government's announcements in its 2021 budget was the reconstitution of the Law Commission of Canada. First created in 1971 as the Law Reform Commission of Canada, it was disbanded in 1992, re-established in 1996, then scrapped by the last Conservative government in 2006. Leah Howie, president of the Federation of Law Reform Agencies of Canada, praised the commission's attention to systemic racism in the justice system, legal issues around climate change, establishing a new relationship with Indigenous peoples, and rapid technological shifts in the world. Rights not breached in denying automatic appeal Denying young offenders an automatic right to appeal their convictions to the Supreme Court of Canada is constitutional, the high court ruled. The May 8, 8/1 decision upheld a teenager's sexual assault conviction in a case examining capacity to consent. In R. v. C.P., the majority of the court found that a young person's Charter rights were not violated by denying him the right to an automatic appeal to the Supreme Court where a conviction was upheld on appeal but an appellate judge had dissented on a point of law.

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