Canadian Lawyer

September 2020

The most widely read magazine for Canadian lawyers

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Page 11 of 51

UPFRONT 10 OTTAWA UPDATE SCC upholds Jordan framework High court affirms the 30-month presumptive ceiling in a case of spousal homicide IN A pithy decision numbering just nine paragraphs, a unanimous Supreme Court of Canada dismissed the Crown's appeal of a Quebec court decision that stayed charges of second-degree murder against a man because of unreasonable delay. In R. v. Thanabalasingham, issued on July 17, the Supreme Court found that the Crown's delay of 43 months in bringing the case to trial was excessive and that Quebec courts had been right to stay the charges. Although most of the delay had accrued before the court's 2016 decision in R. v. Jordan was released, the transitional excep- tional circumstance did not justify the delay, the court found, and nor would the delay have been acceptable under the guidelines set in R. v. Morin. to Sri Lanka. The Crown appealed the stay decision regardless of the respondent's absence from Canada, but the Quebec court of appeal agreed with the trial judge in a split decision — twice. The Supreme Court found that the delay in the case far exceeded the 30 month presump- tive ceiling established in Jordan and, although most of the delay accrued before Jordan was released, the transitional exceptional circum- stance did not justify the delay. Even under the old framework established in R. v. Morin, the case would have qualified for a stay as Morin set ceilings of 14 to 18 months. The right to be tried within a reasonable time benefits not only the accused but "victims and society as a whole as well," the court wrote. In a decision that noted "the culture of rampant and longstanding systemic delay" in the justice system, the Supreme Court missed an opportunity to address the issue of the "chronic underfunding" of the justice system, DiGiuseppe says. "It's good to see that the court is making a very strong statement, affirming the princi- ples they set down in Jordan and Cody," says Stephanie DiGiuseppe, a criminal lawyer and partner in Ruby Shiller Enenajor DiGiuseppe Barristers LLP in Toronto. T h e r e s p o n d e n t S i v a l o g a n a t h a n Thanabalasingham, a refugee from Sri Lanka and permanent resident of Canada, was arrested and charged in August 2012 with the murder of his wife. Thanabalasingham's trial was scheduled to begin in April 2017, but he applied for a stay of proceedings on the ground that his right to be tried within a reasonable time had been infringed. The Quebec Superior Court trial judge accordingly ordered a stay of proceedings, and, in July 2017, the respondent was removed NEWS BRIEFS FLSC commits to reconciliation framework The Federation of Law Societies of Canada agreed in August to adopt an advisory committee's recommendations for advancing reconciliation with Indigenous peoples in Canada. This follows on the release of the Federation's Truth and Reconciliation Commission Calls to Action Advisory Committee report in June containing nine recommendations which tackled two of the TRC's Calls to Action and which advanced a broader approach to reconciliation. No cause of action in lottery suit A waiver of tort as an independent cause of action for disgorgement does not exist in Canadian law, the Supreme Court ruled on July 24 in striking down plaintiffs' class action claims against the Atlantic Lottery Corporation over its use of video lottery terminals. In Atlantic Lottery Corp. Inc. v. Babstock, the SCC found there was no reasonable cause of action in the proceeding for waiver of tort, breach of contract or unjust enrichment. The minority disagreed on the cause of action for breach and would've allowed the class certification. "Parliament gets a pass if the Supreme Court only talks about culture and not chronic underfunding." Stephanie DiGiuseppe, Ruby Shiller Enenajor DiGiuseppe Barristers LLP

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