Assemble
Giving life to an overlooked Charter protection. Plus the LSO's cheating scandal, minority-language rights, and the latest Canadian legal news.
Dylan Gibbs
April 09, 2025
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Lawyers get a bad rap for constantly hunting down rankings and prestige. Some of us sure aren’t helping.
A Brazilian judge is facing criminal charges because he decided his vanilla origin story and Brazilian-sounding name (José Eduardo Franco dos Rei) weren’t good enough. He switched things up when he enrolled in law school, telling everyone his parents were British aristocrats.
Apparently no one noticed the fraud for decades. If you ask me, it should have been a hint that Dos Reis chose the most satirical-sounding British name of all time: Edward Albert Lancelot Dodd Canterbury Caterham Wickfield.
— Dylan Gibbs
TODAY'S DOCKET |
Cheating
Housekeeping
Extra long ballots
Suing the common law
Minority language education
Underdeveloped Charter rights
STAYING CURRENT 🗞️
Recent and notable
If you’ve been following the Law Society of Ontario’s 2021 bar exam scandal, you know that a group of students used answer keys to cheat. You also know that the LSO cancelled the cheaters’ licensing registrations, barred them from reapplying for a year, and left open the possibility of holding good character hearings that could block them from entering the profession altogether.
The prospective lawyers found some success at Ontario’s Divisional Court, where a three-member panel held that the LSO acted unfairly. The Court said the LSO should have held oral hearings before kicking people out of the licensing process.
But that victory proved to be short-lived. The Ontario Court of Appeal overturned the decision this week, saying the Divisional Court didn’t properly differentiate between good character investigations and licensing dishonesty.
According to the Law Society Act, most LSO decisions don’t require an oral hearing. The LSO does need to hold an oral hearing before deciding that a prospective lawyer doesn’t have good character.
The Divisional Court said the LSO’s decision was effectively a good character decision — cancelling someone’s registration because they cheated on the bar exam sounds a lot like a concern with their character.
But according to the Court of Appeal, the Divisional Court shouldn’t have made that leap. There’s an important distinction between licensing integrity decisions and good character investigations.
[The LSO] called on two departments to respond [to the exam incident]: the Licensing Department and the Professional Regulation Division.
The Licensing Department and the Professional Regulation Division not only perform different functions, they are governed by different legislative provisions… While the groups spoke to one another and shared information, the procedural fairness considerations that govern the two are different. The fact that the two groups were working simultaneously and shared information does not mean that their processes merged. Nor does it mean that the same procedural fairness considerations apply to them.
The Divisional Court misconstrued the statutory scheme by conflating the work of the Licensing Department with that of the Professional Regulation Division. [The legislative provisions that apply to licensing decisions don’t require an oral hearing].
The Quebec Court of Appeal recently sided with the province’s English-language school boards, delivering a win for minority language education rights.
A bit of context: Quebec’s 2020 education reforms looked a lot like a hostile takeover for English-language schools — new rules disqualified 99% of English-speaking Quebeckers from running for elected school board positions and gave the government greater control over how schools could use their funding.
The Court’s ruling: The Court of Appeal said the changes violated the Charter because section 23’s minority language protections guarantee control over spending, staffing, programming, and policy-making.
[The rights to manage and control minority language educational facilities] are for the benefit of the linguistic minority as a whole. These rights must therefore actually be exercised by representatives chosen from and by members of the linguistic minority as a whole. By drastically reducing the pool of eligible candidates for parent representative positions, Bill 40 severely limits the ability of members of the linguistic minority to choose the individuals who will act as its representatives…
Big picture: The Court did dial back some of the lower court’s more creative conclusions. The Superior Court said governments have a duty to consult minority language groups before changing education laws. The Court of Appeal said there’s no legal basis to impose that sort of duty.
[W]hile it may be politically wise for the legislature to do so, the legislature has no constitutional duty to consult minority language representatives regarding the enactment of legislation in relation to education.
When can courts revisit their decisions? Rarely.
After lacklustre Indigenous consultation on a Yukon mining project, the Yukon Court of Appeal ordered further discussions. Consultations have been taking place for months — which the mine operator isn’t happy about.
BMC Minerals asked the Court of Appeal to “clarify” its original decision by putting a deadline on the consultation. That didn’t go over so well.
I do not see the application before me as dealing with an unforeseen issue or a “housekeeping matter.”
If BMC Minerals believes that the decision-makers are failing to adhere to legal requirements, their remedies lie in judicial review before the Yukon Supreme Court ... They do not lie in resurrecting the appeal in this Court, which has been disposed of.
Courts [can’t automatically] manage the implementation of their orders after they are made. A court can assume a continuing management role, through what is often referred to as a “structural injunction”, but such a remedy is uncommon, and it is entirely unlikely to be granted at the appellate level for practical reasons.
SPOTLIGHT 🔦
Peaceful assembly finally gets its due
Hillier v. Ontario, 2025 ONCA 259
If section 2(c) of the Charter doesn’t ring any bells for you, it’s probably because courts haven’t given it much attention. But the Ontario Court of Appeal came in hot this week with two firsts. Hillier is the first appellate decision to find a COVID gathering restriction unconstitutional, and it’s the first to give the Charter’s freedom of assembly protection more than a passing nod.
A bit of context: Randy Hillier, a former Ontario MPP and outspoken pandemic critic, racked up provincial offence charges for attending outdoor protests in 2021. At the time, Ontario allowed small gatherings for weddings, funerals, and religious services. But there was no similar carveout for protests. Hillier argued that omission was unconstitutional.
Most claims challenging COVID gathering restrictions have relied on freedom of religion. And they’ve failed at several different courts. The consensus is that tailored gathering limits (with exceptions for small religious gatherings) are a reasonable limit on Charter rights.
The Court’s ruling: The Court of Appeal agreed with Hillier that limiting protests violates the right to peaceful assembly. And since Ontario’s rules served as a blanket ban — with no carveout for even the smallest of group protests — the Court said the government couldn’t rely on section 1 of the Charter to justify the violation.
Justice Lauwers’s decision is now the go-to for understanding the scope of the Charter’s peaceful assembly protection.
Peaceful assembly is listed as a separate, independent freedom. Continuing to treat s. 2(c) as the forgotten sibling of the other fundamental freedoms [like freedom of expression] unduly limits protection for people living in a constitutional democracy. Although the instances in which s. 2(c) does not overlap with other fundamental freedoms under s. 2 are rare, it is “nonetheless misguided to assume that the freedom exists solely to facilitate the exercise of other freedoms.”
And in an act of kindness to readers everywhere, Justice Lauwers set out his entire approach to section 2(c) in an organized list. So there’s no excuse not to check it out.
The gist is that people have a protected right to gather. The government violates that right when it “discourage[s] the collective pursuit of a common purpose by restricting or prohibiting a public gathering or assembly”.
Reasonable limits: As far as justification goes, Ontario faced an uphill battle. The government’s failure to even consider a carveout for political protest proved fatal.
The province tried to justify the violation using the unrelated carveouts for weddings and religious gatherings — which worked before the Superior Court of Justice. But the unrelated exceptions didn’t cut it for the Court of Appeal
[The application judge drew on the religious context] as an example of a tailored government response to the pandemic. In doing so, he took the gathering limits at a macro-level and did not analyze the specific Charter issue before him. This was an error that coloured his minimal impairment analysis.
[The application judge should have focused] on whether the specific limiting measure was justified, rather than on the law as a whole, but he did not. Instead, he focused on the law’s overwhelming social good in preventing the spread of COVID-19, not on ways in which the fundamental freedom of peaceful assembly might still be accommodated in the delicate task of balancing.
The Court hasn’t granted a remedy yet, giving the parties time to make submissions. Justice Lauwers’s concluding remarks suggest the Court is leaning towards a tailored remedy that wouldn’t void the gathering limits altogether.
Big picture: Hillier is also doing well in the criminal law realm (where he’s representing himself). Ontario’s Superior Court of Justice recently tossed Hillier’s criminal Freedom Convoy charges because the prosecution took too long. The Crown is contesting that decision, so we’ll see if Hillier can go two for two at the Court of Appeal.
BY THE NUMBERS 📊
91: The number of candidates on the ballot in Pierre Poilievre's Ottawa riding. A group known as the Longest Ballot Committee stuffed the ballot with independent members to protest the electoral system.
$5 million: The first tranche of New Brunswick's investment in tech-savvy courts. The province’s digital transformation project includes a new case management system to integrate all three levels of court, electronic filing, and in-court upgrades like enhanced video conferencing. The province says the project will cost $32.7 million in total, spread out over 6 years.
13.4%: The percentage of BC Supreme Court trials that were bumped last year. Long chambers applications were even less likely to proceed as scheduled, with a 19.1% bump rate. The Court’s annual report attributes the problem to judicial vacancies. And even though the federal government has now filled most of those vacancies, the Court said it’s still dealing with fallout:
[T]he impact of having been chronically short of the full-time complement continues to affect access to timely and effective justice for all British Columbians
MAKING HEADLINES 🗞️
⌛️ Does the government have a duty to respond to common law changes? It’s a bit of a stretch, but fourteen survivors of sexual assault and intimate partner violence say yes. Their novel lawsuit alleges the federal government hasn’t done a good enough job responding to the SCC’s Jordan decision, which puts hard caps on the length of criminal trials. With courts frequently throwing out serious charges — denying victims their day in court — the plaintiffs say the situation is so bad it violates the Charter.
On top of a request for $15 million in damages, the suit claims the government has a positive duty to make laws in response to Jordan. The claim doesn’t clarify what those laws should look like, but it seems like the plaintiffs want special deadlines for intimate partner and sexual violence offences.
[The plaintiffs request] an order declaring that the Defendants have a constitutional obligation to adopt and diligently implement laws, policies, and regulations that are designed to protect not just the accused person’s s. 11(b) rights, but also the victim’s s. 7 rights;
🛢️ The Athabasca Chipewyan First Nation sued Alberta for renewing the province’s Mine Financial Security Program. The program forces energy operators to post security, covering potential remediation costs. But the security amounts leave something to be desired. In 2021, Alberta’s auditor general estimated the province holds only $1.5 billion in security for remediation liabilities of $31.5 billion. A University of Calgary research study says the situation is even worse — researchers estimate liabilities between $45 billion and $130 billion, with only $2 billion held in security.
The First Nation says the government had a duty to consult before renewing what they call a grossly inadequate program.
⛄️ Immigration advocates are fighting back against the Trump administration’s strict new rules for long-stay visitors — which could be good news for Canadian snowbirds. As of Friday, people staying in the US for more than 29 days need to register with the government and carry proof of registration at all times. Non-Canadians even need to give their fingerprints. A lawsuit filed earlier this week aims to quash the policy before snowbirds are forced to make space for registration documents in their golf bags.
🥬 Nova Scotia just gave the Mi’kmaq a license to sell cannabis. The Nova Scotia Liquor Corporation used to be the province’s only authorized retailer. The government opted to allow Indigenous-owned vendors because illicit sellers were flooding Mi’kmaq communities.
Fun fact: one illicit Mi’kmaq seller has ties to a famous Canadian legal figure. A relative of Donald Marshall Jr. (one of Canada’s most notable wrongful convictions and the man behind the R. v. Marshall treaty rights decision) got into trouble for running a dispensary.
Loosely following in his family member’s footsteps, Darren Marshall argued the Mi’kmaq have a treaty right to sell cannabis. But a Nova Scotia judge summarily dismissed the argument because Marshall didn’t offer enough evidence.
[The expert report doesn’t connect the Mi’kmaq community to cannabis. Taken at its highest, the report says] a lack of evidence should not rule out the existence of such a connection. Such an argument cannot be taken seriously and be considered anything other than an indication of the manifestly frivolous nature of the application.
OBITER DICTA
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