Highlights

Impaired
VANCOUVER’S COMMUNITY COURT
FIGHTING SPAM
Feds relaunch
anti-spam law
violate Charter:
Quebec courts
driving rules

LUIS MILLAN MONTREAL

PAGE 9

Days before Canada’s toughest impaired driving laws came into effect in British Columbia, two partially conflicting Court of Quebec judgments have thrown into doubt the fate of changes introduced two years ago by the federal government that strengthened drug-impaired driving rules.

In a 160-page comprehensive ruling that provides a broad overview of impaired driving litigation in Canada, Court of Quebec Justice Pierre Lortie ruled that the new amendments dealing with impaired driving offences introduced by Bill C- 2, the Tackling Violent Crime Act, were unconstitutional as they infringed the presumption of innocence as guaranteed by the Charter. Judge Lortie also concluded that the provisions did not constitute reasonable limits as per s. 1 of the Charter, and declared s. 258(c), s. 258(d), and s.258(d.01) of the Criminal Code null and void.

But in a separate recent ruling, another Court of Quebec judge ruled that the amendments were only partly unconstitutional. In a 51-page ruling, Justice Conrad Chapdelaine concluded that the presumptions of identity set out by s. 258(1)(c) and s. 258(1)(d.1) of the Criminal Code infringe s. 11(d) of the Charter. But unlike Judge Lortie, Justice Chapdelaine found that the presumption of accuracy foreseen in s. 258(1)(c) of the Criminal Code did not violate the Charter. Nor did he find that the restrictions imposed by the legislator that precludes the use of evidence—such as the amount of alcohol the accused consumed and the rate at which the alcohol that the accused consumed would have been absorbed and eliminated by the accused’s body—to demon-

See Impaired Page 8

WEARING
TWO
HATS

Justice Thomas Gove sits in his innovative “community court” in Vancouver. It is one of a group of courts that were recently evaluated on their effectiveness in dealing with mental health and addiction.

ALISTAIR EAGLE FOR THE LAWYERS WEEKLY

See story on page 3

When councillors sit
on two councils
Drop in caseload worries SCC observers

PAGE 14

LEGAL EDUCATION

CRISTIN SCHMITZ OTTAWA

Is the Supreme Court of Canada taking on enough cases?

It’s a question lawyers and academics are posing again these days as the top court has decided fewer cases — and opened its doors to fewer litigants — in the first nine months of 2010 than in any comparable period in the court’s modern history.

“Is the welcome mat out at the Supreme Court—the statistics indicate that there is still space at the dinner table,” commented Lang Michener’s Eugene Meehan, an Ottawa-based Supreme Court agent, points out that the percentage of leaves granted

Meehan

“The court is less accessible than it has been at any time in its modern history since 1975.

by the court started at 13 per cent in 2000 and recently hit a new low of about nine per cent.

In addition a Lawyers Weekly analysis shows that the top court had decided just 35 cases from Jan. 1 to Sept. 23, 2010—its lowest output during that period in decades.

Figures confirmed by the court also show that its nine justices presently have more cases under reserve (42), than they have decided in 2010—partly because they are wrestling with some weighty appeals, including several that are more than a year old.

In light of the judges’ unusually low output so far this year, they will have to crank out an additional 23 decisions over the next three months (more than twice their pace this year) to even tie their record low output of 58 judgments in 2007 — a year Chief Justice Beverley McLachlin explained at the time as an anomalous “blip”.

More troublingly, according to observers, so far in 2010 the court has been continuing the downward trend in the number of appeals it accepts to hear. It has repeatedly indicated it continues to grant leave in all cases that meet the statutory test of public importance. (The court declined comment on the subject when asked for an explanation by The Lawyers Weekly.)

At press time, the judges had accepted only 31 cases of the 341 leave applications (nine per cent) they decided in 2010, according to court statistics. If that pattern persists, the court’s

See SCC Page 2

Demand for law school spots is high, and the number of grads is a ‘freight train’ heading towards the profession

PAGE 21

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