Current Cases Corner: September to November 2024
Current Cases Corner is a light-hearted, brief brief about several current cases that folks may wish to know about. This article does not contain legal advice, and you're encouraged to do further research.
Facebook and Data Privacy
Clarifying compliance standards with the Personal Information Protection and Electronic Documents Act ("PIPEDA"), the Federal Court of Appeal found Facebook, Inc. failed to get consent for and, subsequently, protect personal user data from third-parties. To comply, privacy policies should be accessible to promote meaningful consent, and companies should likely introduce third-party oversight mechanisms.
This move will hopefully lead to better safeguarded user data in the future. Further, it means that simply putting a consent clause in privacy policy won't be sufficient – so get ready for more website pop-ups.
The Do-Re-Mi of Bankruptcy
Ever wake up feeling energized by the soundtrack of life? Ever read a Lord Denning decision and think, “When did this poetry leave the judicial process?”
Look no further than the decisions of Raffi A. Balmanoukian, Registrar in Bankruptcy. In Peverill (Re), Balmanoukian treats us to a judgement inspired by the classic musical The Sound of Music (1965, dir. Robert Wise). Riffing off familiar tunes like “Maria” and “So Long, Farewell,” despite the unfortunate circumstances of this case, it is a treat to read.
I recommend reading the entire judgement. (It’s only 18 paragraphs long!)
Sexting as Evidence
The SCC affirms in R v Goldfinch, 2019 on s. 276(1) of the Criminal Code (“CC”) that evidence cannot be used to evoke “twin-myths” reasoning, which falsely suggest that prior sexual behaviour with a person makes someone more likely to consent to future sexual activity. The Ontario Court of Appeal determined in R v Reimer that the trial judge erred in dismissing prior sexts from being submitted as evidence under s. 276, CC. A partial stay was granted for a temporary publication ban on the sexts, pending the Crown’s leave to appeal application to the SCC.
This case may have wide implications for privacy of sexual assault complainants and sexting evidence being admissible to ground an accused’s belief in consent.
“Merely Incidental”: Provinces Dismayed at C-92
Reference re An Act respecting First Nations, Inuit and Métis children, youth and families
An Act respecting First Nations, Inuit and Métis children, youth and families (“C-92”) was assented to on June 21st, 2019 and its reference decision (“Ref C-92") was released in February 2024. Both C-92 and Ref C-92 re-affirm inherent Indigenous jurisdiction over child & family services to support “cultural continuity” and atone for policies like residential schools and issues that pushed for (re)litigation of Jordan’s Principle.
C-92 sets the national standards through s 91(24) of the Constitution Act, 1982 (“CA, 1982") that binds provinces, citing impacts that are “merely incidental” – in this case, much to the government of Quebec’s dismay. Ref C-92 was a unanimous decision and links collective s 35 rights to cultural continuity in the community management of child and family services. The SCC grounds Legislature’s ability to affirm Indigenous child and family laws as having federal power equivalency through s 91(24) of the CA 1982. C-92’s preamble affirms UNDRIP, Indigenous sovereignty, and the historical backdrop of the harmful colonial management of Indigenous nations' child and family services.²
Additionally, the SCC links the Honour of the Crown to self-government recognition. Crown must act as though Indigenous peoples enjoy inherent right to self-government of child and family services.³ The Supremes cited Schulich’s own Professor Naiomi W. Metallic’s concept of recognition legislation and recognizes the Act as an example of legislative reconciliation.⁴ Legislative reconciliation gives parameters to constrain problematic state actions adopted under legislative schemes.
Definitely a case worth exploring!
¹ Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 at paras 98, 100, and 103.
² Ibid at paras 4, 14, 15, and 85.
³ Ibid at para 60.
⁴ Naiomi Metallic, “Aboriginal Rights, Legislative Reconciliation and Constitutionalism” (2023) 27:2 Rev Const Stud 1 at 22-23. Recognition Ref C-92 at paras 3-5, 13-15, 16-18.
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