36537    Her Majesty the Queen v. Robert David Nicholas Bradshaw

Criminal Law – Evidence – Hearsay

Two people were shot to death five days apart. A co-accused became the target of a Mr. Big investigation, during which he told an undercover officer that he alone was the shooter in both killings. When he met Mr. Big, he said that the respondent shot one victim and assisted killing the other victim. The co-accused was arrested and charged with two counts of first degree murder. In police interviews, he first denied involvement, then he described the murders and implicated others but not by name, then he confessed, then he re-enacted the murders and alleged that the respondent shot the second victim and helped in the first murder. At the respondent’s trial, the co-accused refused to be sworn. The Crown sought to admit a recording of his re-enactment for the truth of its contents. The trial judge admitted the recording under the principled exception to the hearsay rule. A jury convicted the respondent on two counts of first degree murder. The Court of Appeal held that the recording of the co-accused’s re-enactment should not have been admitted. It set aside the convictions and ordered a new trial on both counts.

36500     British Columbia Teachers' Federation, on behalf of all members of the British Columbia Teachers' Federation v. Her Majesty the Queen in Right of the Province of British Columbia

Charter of Rights – Constitutional law – Freedom of association

In 2002, the province of British Columbia passed two statutes dealing with collective agreements for public sector workers in the field of education, the Education Flexibility and Choice Act, S.B.C. 2002 c.3 and s. 5 of the Education Services Collective Agreement Amendment Act, 2004, S.B.C. 2004, c.16. The legislation deleted collective agreement terms between the applicant, the British Columbia Teachers’ Federation (BCTF) and the British Columbia Public School Employers’ Association (BCPSEA), the exclusive employer bargaining agent for the Province of British Columbia, the defendant. The legislation also prohibited future bargaining on certain issues.

In 2011, the Supreme Court of British Columbia found that the legislation was unconstitutional because it infringed s. 2 (d) of the Charter and that the infringement was not justified under s. 1 of theCharter. The Supreme Court of British Columbia declared the law unconstitutional, but suspended the order for 12 months to grant the Province time to address the decision.

Following the decision, consultations between the Province and BCTF and collective bargaining between BCTF and the respondent BCPSEA occurred simultaneously but in both cases the parties were not able to reach an agreement and declared an impasse. Upon expiration of the suspension period, the Province enacted a new statute, The Education Improvement Act, S.B.C. 2012, c.3, that included sections previously declared unconstitutional by the Supreme Court of British Columbia.

BCTF challenged the constitutionality of The Education Improvement Act based on the fact that theEducation Improvement Act was virtually identical to the legislation previously declared unconstitutional by the Supreme Court of British Columbia. The trial judge found that there was no basis to distinguish the new legislation from the previous finding of unconstitutionality and granted the BCTF declaratory relief plus $2 million in damages pursuant to s. 24 (1) of the Charter. The Court of Appeal for British Columbia allowed the appeal and found that the consultations were undertaken in good faith and that the context in which the new legislation was enacted was relevant to its constitutionality. The award of Charter damages was set aside.