Constitutional Law Archives | Xaidsart LLP | Smart Litigation

Xaidsart client successful in Charter challenge to Ontario “Ag-gag” legislation

Ted Marrocco — Wed, 03 Apr 2024 14:22:31 +0000

The Superior Court of Justice has struck down provisions of the regulation under the Security from Trespass and Protecting Food Safety Act, 2020 in an application brought by Xaidsart client, Animal Justice, and two individuals. The Court found that the unconstitutional provisions, which restricted undercover investigations of animal welfare issues in animal agriculture facilities, contravene freedom of expression under s. 2(b) of the Charter and cannot be saved under s. 1. The Court declared the provisions to be of no force or effect and suspended the ruling pending a future hearing between the parties. Xaidsart partners Andrea Gonsalves and Fredrick Schumann represented Animal Justice together with Kaitlyn Mitchell and Scott Tinney of Animal Justice. Arden Beddoes of Beddoes litigation represented the individual applicants.

You can read the Court’s decision here.

The post Xaidsart client successful in Charter challenge to Ontario “Ag-gag” legislation appeared first on Xaidsart LLP | Smart Litigation.

Xaidsart Succeeds in Constitutional Challenge to Law Barring Conditional Sentences

Ted Marrocco — Tue, 28 Jul 2020 14:36:03 +0000

On Friday, the Ontario Court of Appeal struck down a provision of the Criminal Code barring conditional sentences in R. v. Sharma, 2020 ONCA 478. The case involved a 20-year old Indigenous woman who committed a drug crime in circumstances of financial desperation. She would have been entitled to house arrest but for a 2012 law barring conditional sentences for a wide range of offences. As a result, she was separated from her two year old daughter and sentenced to 18 months in prison. The Court of Appeal ruled that the law violated Ms. Sharma’s equality rights under s. 15 of the Charter and was overly broad under s. 7 because the law’s effects had “no rational connection” to some of its effects.

Ms. Sharma was represented by Xaidsart lawyers Nader Hasan and Stephen Aylward. They were supported by the interveners, Aboriginal Legal Services Toronto, the Native Women’s Association of Canada, the Criminal Lawyers’ Association, the Asper Centre, the Legal Education and Action Fund, the Canadian HIV/AIDS Legal Network, and the HIV & AIDS Legal Aid Clinic Ontario.

Conditional sentences were introduced in 1995 as a restorative justice alternative to prison to combat the Indigenous overincarceration crisis in Canada. In 2012, Parliament restricted the availability of conditional sentences for a wide range of offences. In doing so, Feldman J.A. wrote for the majority of the Court, Parliament ignored evidence of the impact of this measure on the Indigenous overincarceration crisis. By limiting the tools available to judges to account for the legacy of colonialism in the sentencing process, the law had a discriminatory impact on Indigenous offenders.

“We are grateful to our client, Ms. Sharma, for her sacrifice in bringing this case forward”, said Mr. Hasan. Ms. Sharma will not personally benefit from the ruling as she had served her prison term prior to the court’s decision being rendered. “She is grateful this decision will assist others in the future.”

The post Xaidsart Succeeds in Constitutional Challenge to Law Barring Conditional Sentences appeared first on Xaidsart LLP | Smart Litigation.

Nader Hasan and Stephen Aylward Argue Unconstitutionality of Safe Streets and Communities Act

Ted Marrocco — Thu, 21 Nov 2019 16:14:33 +0000

On November 20, 2019, Nader Hasan and Stephen Aylward appeared before the Ontario Court of Appeal to argue a constitutional challenge to provisions of the Criminal Code that restrict the ability of sentencing judges to grant conditional sentences, a restorative justice tool designed to balance rehabilitation with deterrence and reduce overincarceration. In the case, R. v. Sharma, our client argues that the restrictions are arbitrary, overly broad, and discriminatory in that they will worsen the crisis of Indigenous overincarceration in Canada. Our client was supported by the interveners, Aboriginal Legal Services Toronto, the Native Women’s Association of Canada, the Criminal Lawyers’ Association, the Asper Centre, the Legal Education and Action Fund, the Canadian HIV/AIDS Legal Network, and the HIV & AIDS Legal Aid Clinic Ontario. The Court of Appeal reserved its decision. A decision can be expected in mid-2020.

The post Nader Hasan and Stephen Aylward Argue Unconstitutionality of Safe Streets and Communities Act appeared first on Xaidsart LLP | Smart Litigation.

Supreme Court of Canada releases landmark decision on undercover investigations

Ted Marrocco — Mon, 22 Apr 2019 10:00:15 +0000

On April 18, 2019, the Supreme Court of Canada released its judgment in R v Mills. In a plurality opinion, Justice Brown held that s. 8 of the Charter does not require undercover officers to get judicial authorization before posing as a child and texting with suspects online. The applicability of s. 8 of the Charter beyond this narrow context remains unclear. In a concurring opinion, Justice Karakatsanis held that s. 8 of the Charter is never engaged when an undercover police officer exchanges text messages with a suspect, but that opinion did not command a majority (or even a plurality) of the Court.

Our partner, Gerald Chan, represented the Criminal Lawyers’ Association in this appeal. He shared his thoughts on the Court’s decision with the Lawyer’s Daily.

The post Supreme Court of Canada releases landmark decision on undercover investigations appeared first on Xaidsart LLP | Smart Litigation.

Justin Safayeni to speak at Constitutional Cases conference

Ted Marrocco — Fri, 05 Apr 2019 14:51:26 +0000

Xaidsart partner Justin Safayeni will be speaking today at Osgoode Hall Law School’s annual Constitutional Cases conference. He will be speaking on a panel about “Evidence, Information and the Criminal Justice System”, with a presentation called “Virtue and Vice in the Supreme Court of Canada’s Approach to Press Freedom: Reflections on the Strengths, Weaknesses and Potential Consequences of R v Vice Media Canada Inc.” You can see the full conference agenda here.

The post Justin Safayeni to speak at Constitutional Cases conference appeared first on Xaidsart LLP | Smart Litigation.

Gerald Chan and Justin Safayeni to speak at 2018 Osgoode Constitutional Cases Conference

Ted Marrocco — Thu, 12 Apr 2018 16:37:35 +0000

Gerald Chan and Justin Safayeni will be speaking at the 2018 Osgoode Constitutional Cases Conference on April 6, 2018. Gerald will be presenting on the panel, “Frontiers of Privacy”, and discussing the Supreme Court of Canada’s recent decisions on text message privacy in which he was counsel for the British Columbia Civil Liberties Association. Justin will be presenting on the panel, “Indigenous Justice and the Administrative State”, and discussing the Supreme Court of Canada’s recent judgments on indigenous rights, including Clyde River (in which he was counsel with Nader R. Hasan). Click here for the full agenda.

The post Gerald Chan and Justin Safayeni to speak at 2018 Osgoode Constitutional Cases Conference appeared first on Xaidsart LLP | Smart Litigation.

Justin Safayeni publishes article on Charter values in administrative law

stockwoods — Fri, 23 Mar 2018 14:47:32 +0000

Xaidsart lawyer Justin Safayeni has published an article exploring the use of the Charter values in administrative law following the Supreme Court of Canada’s decision in Doré v. Québec (Tribunal des professions). Titled “The Doré Framework: Five Years Later, Four Key Questions (And Some Suggested Answers)”, the article was published in the latest edition of the Canadian Journal of Administrative Law & Practice (31 Can J. Admin. L. & Prac. 31). To read the article, click here.

The post Justin Safayeni publishes article on Charter values in administrative law appeared first on Xaidsart LLP | Smart Litigation.