Litigation Success
LITIGATION SUCCESS
[1] This case is about the scope of the prohibition against discrimination “regarding employment” under s. 13(1)(b) of the British Columbia Human Rights Code, R.S.B.C. 1996, c. 210. On April 3, 2014, Mr. Mohammadreza Sheikhzadeh-Mashgoul filed a complaint with the appellant, the British Columbia Human Rights Tribunal, against the respondent, Mr. Edward Schrenk, alleging employment discrimination based on religion, place of origin, and sexual orientation. Mr. Schrenk responded with an application to dismiss under s. 27(1)(a) of the Code, in which he argued that the alleged conduct was not discrimination “regarding employment” and was consequently beyond the jurisdiction of the Tribunal. The crux of Mr. Schrenk’s argument is simple: as he was not in a position of economic authority over Mr. Sheikhzadeh-Mashgoul — he was neither his employer nor his superior in the workplace — his conduct, however egregious, could not be considered discrimination “regarding employment” within the meaning of the Code.
[2] At issue, then, is the question of whether discrimination “regarding employment” can ever be perpetrated by someone other than the complainant’s employer or superior in the workplace. To be clear, the issue is not whether Mr. Schrenk’s alleged conduct would amount to discrimination; no one disputes this. Rather, the question in this appeal is whether such discrimination was “regarding employment”.
[1] This case concerns the proper approach for considering whether a guilty plea can be withdrawn on the basis that the accused was unaware of a collateral consequence stemming from that plea, such that holding him or her to the plea amounts to a miscarriage of justice under s. 686(1) (a)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 .
[2] The decision of an accused to plead guilty is plainly significant. By pleading guilty, an accused waives his or her constitutional right to a trial, relieving the Crown of its burden to prove guilt beyond a reasonable doubt. Taking this step is of such significance that it represents one of the very few decisions in the criminal process which an accused must personally take. Indeed, defence counsel are ethically bound to ensure that the ultimate choice is that of the accused.
[3] The plea resolution process is also central to the criminal justice system as a whole. The vast majority of criminal prosecutions are resolved through guilty pleas and society has a strong interest in their finality. Maintaining their finality is therefore important to ensuring the stability, integrity, and efficiency of the administration of justice. Conversely, the finality of a guilty plea also requires that such a plea be voluntary, unequivocal and informed. And to be informed, the accused “must be aware of the nature of the allegations made against him, the effect of his plea, and the consequence of his plea” (R. v. T. (R.)(1992), 10 O.R. (3d) 514 (C.A.), at p. 519).
[1] Côté J. — Canada’s Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA ”), recognizes that there are important social, cultural and economic benefits to immigration. It also recognizes that successful integration of permanent residents involves mutual obligations for those new immigrants and for Canadian society.
[2] This appeal concerns the obligation of permanent residents to avoid “serious criminality”, as set out in s. 36(1) (a) of the IRPA . This obligation is breached when a permanent resident is convicted of a federal offence punishable by a maximum term of imprisonment of at least 10 years, or of a federal offence for which a term of imprisonment of more than 6 months has been imposed.
[3] The appellant, Thanh Tam Tran, was convicted of a federal offence and received a 12-month conditional sentence. At issue in this appeal is whether a conditional sentence consists of a “term of imprisonment” for the purposes of s. 36(1) (a) and whether, when the maximum sentence for an offence has changed over time, the “maximum term of imprisonment” referred to at s. 36(1) should be taken to be the maximum sentence that could have been imposed at the time of the commission of the offence, of the conviction, of sentencing or of the determination as to the permanent resident’s admissibility to Canada.
[1] The present judicial review Application pursuant to s.18.1 of the Federal Courts Act, RSC 1985, c F-7 concerns the March 28, 2014 course of conduct between the Applicant, Ms. Peterkin, and employees of the Respondent Bank’s Toronto Danforth branch. The central event of the course of conduct was Ms. Peterkin’s (request to withdraw funds from her bank account, and the initial rejection of this request. Ms. Peterkin is a 60 year-old black woman who maintains that racism was in play in delivering the rejection, while the Respondent maintains that its employees were justified in not meeting Ms. Peterkin’s request for the key reason that she failed to produce proper identification.
[2] As a result, on December 12, 2014, Ms. Peterkin filed a Complaint with the Canadian Human Rights Commission (Commission) pursuant to s.5(b) of the Canadian Human Rights Act, RSC 1985, c H-6 (the Act) on the basis that she suffered adverse differential treatment from the Respondent because of her race.
[3] Following the filing of the Complaint, in submissions dated February 19, 2015, the Respondent argued that the Complaint is frivolous and without merit, and, therefore, the Commission should decline to deal with it pursuant to s.41(1)(d) of the Act. In response, an officer of the Commission prepared a report dated April 26, 2016 recommending that the Commission deal with the Complaint pursuant to s.41(1) of the Act. The Commission agreed.
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Peterkin v. TD Canada Trust (Federal Court)
R v. Harriott (SCJ)
[1] The accused, O’Neil Harriott (Harriott), was acquitted by a jury on three counts of trafficking in cocaine (counts 1 -3), convicted of one count of trafficking in cocaine (count 5) and convicted of one count of weapons trafficking (count 4). The counts Harriott was acquitted of involved actual sales of cocaine to an undercover officer. The only possible defence was duress, which the jury accepted for those three counts.
[2] The accused, Harriott, was convicted of trafficking in a handgun and one count of trafficking in cocaine. Both convictions involved offers to traffic, and there was no exchange of money, cocaine or weapons on the offences the accused was convicted of. The accused raised a defence of duress for those offences as well, but the jury rejected the duress defence for those two offences.
[3] Ironically, even though no actual exchange of items took place, the most serious charge appears to be the weapons trafficking charge, which contains a statutory mandatory minimum sentence of three years.
[4] The defence brings a constitutional challenge pursuant to section 52(1) of the Constitution Act 1982 that section 99 (2)(a) violates sections 15, 7 and 12 of the Charter, and cannot be saved by section 1 of the Charter.
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[1] This Interim Decision is issued to address certain matters raised with the parties in my Case Assessment Direction (“CAD”) dated August 9, 2016 regarding the basis of this Tribunal’s jurisdiction to consider the outstanding “data collection question”, and to respond to the submissions filed by the parties in response to my CAD.
Background
[2] In terms of a brief history of this matter, Chad Aiken filed a human rights complaint with the Ontario Human Rights Commission (the “Commission”) on July 5, 2005, alleging that he had been discriminated against by the Ottawa Police Service. He is a young African Canadian male who was driving a Mercedes when he was stopped by police on May 29, 2005. Mr. Aiken alleges that he was stopped for no valid reason, and claims that he was a “victim of discrimination, racial profiling and systemic anti-Black racism” within the Ottawa police force.
[3] Ultimately, Mr. Aiken’s complaint was referred by the Commission to the Human Rights Tribunal of Ontario for a hearing. The parties to the hearing were: Mr. Aiken; the Ottawa Police Services Board; and the Commission. The hearing was set to commence before the Tribunal in July 2010.
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