Canadian Lawyer

October 2010

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TOP COURT TALES BY PHILIP SLAYTON Their ideological confusion is showing Recent rulings from the Supreme Court of Canada don't seem to have much coherence. the Supreme Court of Canada was "very busy" and "the work of the court continues well." But what, exactly, has it been up to over the sweltering summer just past? Three recent cases have particularly A interested court watchers. I mentioned one of them, the June decision in Ontario (Public Safety and Security) v. Criminal Lawyers' Association, in my last Top Court Tales column. A unanimous sev- en-member panel decided the Charter of Rights and Freedoms does not guar- antee public access to all documents in the government's hands, although it said open government "requires that the citi- zenry be granted access to government records when it is necessary to mean- ingful public debate on the conduct of government institutions." There was a mixed reaction to this judgment. Some (including me), fired up by the muscu- lar Canada (Prime Minister) v. Khadr decision in January, were disappointed the court didn't take on the executive branch, in this case the government of Ontario, in a more vigorous way. Other more timorous souls thought the court showed wisdom and restraint. The court may have been cautious in the Criminal Lawyers' case, but in July, in Vancouver (City) v. Ward, it seemed to throw caution to the wind. t the Canadian Bar Association's annual meeting in August, Chief Justice Beverley McLachlin said On Aug. 1, 2002, former prime min- ister Jean Chrétien was in Vancouver and the Vancouver Police Department had received information someone was going to throw a pie at him. The police mistakenly thought Alan Ward (a law- yer, as it happens) was the prospective pie thrower. They arrested Ward and took him to a police lockup where he was strip searched. A few hours later, the police, realizing they had made a mistake, released Ward. He sued. Section 24(1) of the Constitution Act authorizes the court to grant such rem- edies to individuals for infringement of Charter rights as it "considers appropri- ate and just in the circumstances." The court unanimously upheld an award to Ward of $5,000 in "constitutional dam- ages" for unreasonable search and sei- zure in breach of his s. 8 Charter rights. We can now expect a flood of damages claims from individuals who argue their Charter rights have been breached. Another important July case was the pro-police (but only by four justices to three) R. v. Cornell. In his dissent- ing reasons, Justice Morris Fish graphi- cally described what happened at Jason Cornell's Calgary residence around 6 p.m. on Nov. 30, 2005: "Loaded weap- ons in hand, nine masked members of a police tactical unit smashed their way into the appellant's home in a residential Calgary neighbourhood. They forced the appellant's brother, who has a mental 16 OC T O BER 2010 www. C ANADIAN Law ye rmag.com disability, face-down to the floor and cuffed his hands behind his back. They dented the front door with their batter- ing ram and broke the door frame. . . ." The police had been issued a search warrant, but did not have it with them, and were looking for cocaine, which they found. Cornell, the accused, later argued the drugs were discovered by unreasonable search and seizure and, because of s. 8 of the Charter, should not be admitted into evidence. The trial DARCY MUENCHRATH

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