Ottawa’s New Air-Travel Policy Catches Dual Citizens by Surprise

Update:

Canada's Passport. Air carriers are obligated by law to confirm that all persons seeking to travel to Canada carry both proof of citizenship and proof of identity. A valid Canadian passport satisfies these requirements for Canadian citizens, and is the only acceptable travel document for the purpose of air travel.
Canada’s Passport. Air carriers are obligated by law to confirm that all persons seeking to travel to Canada carry both proof of citizenship and proof of identity. A valid Canadian passport satisfies these requirements for Canadian citizens, and is the only acceptable travel document for the purpose of air travel.

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Starting on September 30, Canadians with dual citizenships must use their Canadian passport to travel back to Canada by air. The new rule is being denounced as a cash grab.

Canadian citizens with dual citizenships will soon be allowed to fly into the country only if they have a Canadian passport.

The policy will come into effect Sept. 30 as a final phase of Canada’s move to an electronic screening system to step up border security and boost exit control of travellers, including Canadians on government benefits.

Veteran pilot Capt. Ian Smith says laser attacks on planes typically happen when an aircraft is landing or taking off, the two most critical times during a flight. photo by fightyourtickets.ca
Jet. photo by fightyourtickets.ca

The upcoming requirement has caught many by surprise calling the practice “discriminatory” against dual citizens and a money grab, and is expected to create havoc as travellers with dual Canadian citizenships may find out only at the last minute when trying to board on a flight.

“What is changing is that the Government of Canada is implementing a new electronic system to assist airlines in verifying that all travellers have the appropriate documents to travel to or transit through Canada by air,” Immigration, Refugees and Citizenship Canada spokesperson Lindsay Wemp told the Star.

“Air carriers are obligated by law to confirm that all persons seeking to travel to Canada carry both proof of citizenship and proof of identity. A valid Canadian passport satisfies these requirements for Canadian citizens, and is the only acceptable travel document for the purpose of air travel.”

Currently, Canadian citizens with dual citizenships can use the passport of the other country to enter Canada by air if they can provide proofs of residency in Canada, such as a driver’s licence and Canadian citizenship card.

According to the 2011 Census, at least 2.9 per cent of Canadians — 944,700 people — had multiple citizenships; the most frequently reported other citizenships were the United States, the United Kingdom, France and Poland.

Ottawa rolled out the electronic travel authorization, or eTA, system last year, requiring air passengers — including all applicants for study and work permits, as well as those from countries that currently do not require a visa to come to Canada — to submit their biographic, passport and other personal information through the immigration department website for prescreening or face being denied entry. American citizens are exempted.

Airline pilots must have their health and safety respected at all times. photo by fightyourtickets.ca
Jet descending in the sky. photo by fightyourtickets.ca

However, Canadian citizens will be ineligible for eTA of Sept. 30, because they will be expected to carry their Canadian passports which, by default, bar dual citizens from using the passport of the other country to return to Canada. What baffles several observers about the new rule is that it only applies to air passengers.

“This proposed policy change is discriminatory to dual citizens and for the life of me, I cannot see why it is necessary. It would appear to be a money grab with no benefit and huge inconvenience for any of us who live overseas,” said Craig Campbell, 60, who was born to a military family in Manitoba and is a dual Canadian-Australian citizen.

“There is time to fix this appalling discriminatory policy. I served the country of my birth as did my father, uncles, aunts and grandfather before me. This is simply a shameful way to treat one very small category of proud Canadians for no discernible benefit to the country.”

Calgary-born Carey Du Gray, 45, who has lived in the U.K. since 2009, said he only found out about the new requirement when he was trying to book travel two weeks ago to fly home in October.

“My daughters were born in the U.K., but they are Canadian citizens. They would not be able to travel to Canada using their British passports. What lunacy, eh?” asked Du Gray, a fundraising consultant based in London.

“What followed was a 48-hour scramble to get all of the documentation and photos together. The guidance on the (Canadian) website said they were taking up to 40 business days to process new passport applications on account of the flood of them that are coming in ahead of the policy change.”

Canadian expatriate Sandi Logan, who worked in the Australian immigration department, said the requirement on dual citizens’ travel just doesn’t make sense.

“It’s bad policy on so many fronts. It discriminates against dual citizens of Canada for starters. It discriminates against dual citizens of Canada flying into any Canadian port, as opposed to arriving by sea or land,” said Logan, 59, who was born and raised in Toronto before settling in Australia in 1980.

“From my vast bureaucratic experience in the public service, it has all of the hallmarks of being a simple revenue grab masked as ‘border security,’ with no discernible impact on safe and stronger borders.”

(It currently costs $120 for a five-year Canadian adult passport and $160 for one that lasts for 10 years.)

Wemp said the federal government is doing everything it can to raise awareness among dual Canadian citizens about the importance of travelling using a valid Canadian passport.

A handout has been distributed at airports of entry, along with a media and social-media blitz via Canadian overseas missions since March of this year. Global Affairs Canada officials have also notified registered Canadian citizens abroad of the upcoming change by email and through their websites.

“All Canadian citizens have a Charter-protected right to enter Canada. Canadian law requires that all persons entering Canada carry both proof of citizenship and proof of identity,” said Wemp.

“A Canadian passport is the only reliable and universally accepted travel and identification document available to Canadians for the purpose of international travel. As the government does not want Canadians to face travel-related delays, we strongly encourage all Canadian citizens to travel using a valid Canadian passport.”

Whitby Judge Dismisses Charges After Racial Profiling by Police

Update: see previous posts – July 26, 2016 Lack of Interpreter Leads to Dismissal of Impaired Driving Charge

Courtroom. The officers were called to testify and “vehemently denied the allegations under oath and were unshaken in their denials,” says the statement of claim. They deny assaulting the accused, Randy Maharaj or Neil Singh. photo by fightyourtickets.ca
Ontario Superior Court of Justice. Justice Robert Charney ruled in R. v Ferguson-Cadore and O’Grady, 2016 ONSC 4872 (CanLII) that a Durham Police Officer violated sections 8&9 of the Charter and section 216.1 of the Highway Traffic Act by pulling over a motorist after presuming the passenger was a pimp and the driver was a hooker. Charges stemming from drugs that were found in the car pulled over were dismissed, pursuant to section 24(2) of the Charter as a result of the Charter breaches.

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Drug charges dismissed against young white female driver and her black boyfriend, but woman calls experience depressing and says her boyfriend’s basketball career is ruined.

Pulled over by a Durham Regional Police officer on a September afternoon, her nearly 7-foot-tall boyfriend in the passenger seat, Beverly O’Grady instantly suspected the real reason for the traffic stop.

She wasn’t speeding, she wasn’t driving erratically, there were no road safety concerns that would justify a stop under the Highway Traffic Act — all of which the officer, Const. John MacKinnon, later acknowledged in court.

The reason for the traffic stop, O’Grady believed, was because she has light skin, and her boyfriend — Jeffrey Ferguson-Cadore, a past member of Canada’s national basketball team — is black.

“I knew right away,” said O’Grady, 32, in an exclusive interview Wednesday. “Right away.”

Justice Charney ruled “PC MacKinnon did not have lawful authority to stop the motor vehicle. Accordingly, I conclude that the applicants’ right not to be arbitrarily detained under s. 9 of the Charter was infringed in this case, and the search incident to the unlawful detention and arrest was a violation of Charter s. 8.

In a straight-shooting ruling tossing the drug charges laid against O’Grady and Ferguson-Cadore that resulted from the traffic stop, Ontario Superior Court Justice Robert Charney came to the same conclusion, finding MacKinnon had no legitimate reason to pull the car over and was instead racially profiling the occupants.

“The police officer’s initial suspicions and concerns for the safety of the young white female were based on the fact that she was seen in the company of a black male,” Charney wrote. “There was really nothing more to it than that.”

O’Grady is relieved after Charney’s ruling, but said it doesn’t take away the depressing result of the experience.

“Now, I don’t even feel comfortable driving with a black man in my car. It’s sad,” she said.

In an email Wednesday, Durham Regional Police spokesperson Dave Selby said the service is aware of Charney’s ruling and is reviewing it. MacKinnon could not immediately be reached for comment.

The ruling stems from a September 2014 traffic stop, when MacKinnon was nearing the end of his shift and noticed a silver sedan leaving the parking lot of a Whitby motel.

Formerly with the vice squad, MacKinnon later testified that he knew the motel was frequented by escorts and their pimps, and noted the “young-looking white female” in the front with a black male. He said he was concerned for her safety, believing it was possible she was a prostitute in the company of her pimp.

Durham Regional Police cruiser. Durham Const. James Ebdon, left, was caught on video in 2011 outside a house in Oshawa threatening to beat up Bradley Cox, far right, and plant cocaine on him during a one-sided, expletive-filled confrontation.
PC MacKinnon ran the vehicle’s plate through the PARIS (Police Automated Registration Information System ) system – to see if he could find some legitimate basis to stop the car. Vehicle and driver information has been made available by the Ministry of Transportation to Category I Police Services through the Ancillary Databank to CPIC for investigative purposes only. The owner of the information has the authority to restrict both access and further dissemination. PARIS must not be queried for any level of police record checks.

MacKinnon began following the car and ran the licence plate information, finding the car was registered to a woman born in 1965. He turned the sirens on and pulled over the vehicle.

In his arrest report, the officer provided two reasons for the stop: he was suspicious because the occupants of the car didn’t align with the age of the registered owner, and he had concerns for the young female driver exiting an area known for prostitution.

According to the judge’s version of events, after pulling over the car, MacKinnon asked O’Grady to step out of the car then asked her if she was an escort — and whether he would find her photo in “Backpage,” a website that has ads for escorts.

“I’m like, what? What is Backpage?” O’Grady told the Star Wednesday, recalling MacKinnon’s question. “I was shocked. I was confused.”

The officer asked her why she was coming out of the motel, and she explained that she and her boyfriend — her passenger — were planning a party and were checking out the motel as a place for out-of-town friends to stay. When asked whose car she was driving, O’Grady explained that it belonged to her mother.

According the judge’s summary of facts, MacKinnon commented that he could smell marijuana coming from the car, called for backup, then police searched the vehicle, ultimately finding a digital scale with white residue believed to be cocaine, 10 tabs of Oxycocet, seven grams of powder cocaine, 4.3 grams of crack cocaine and 25.2 grams of marijuana.

Both O’Grady and Ferguson-Cadore were arrested and jointly charged with four counts of possessing controlled substances for the purposes of trafficking.

The couple mounted a charter challenge to exclude the drug evidence found against them, arguing their rights were violated because they were arbitrarily detained and the officer did not have reasonable grounds to suspect that an offence was being committed.

Charney agreed, finding there were “serious” charter violations by police, with significant negative impacts on O’Grady and Ferguson-Cadore. Calling it a “selective” stop, Charney found there was no legitimate reason to stop the car.

The Canadian Charter of Rights and Freedoms, commonly referred to as "the Charter". In this case (R. v. Khandal, 2016 ONCJ 446) the court reviewed section 10(b) of the Charter "10. Everyone has the right on arrest or detention b) to retain and instruct counsel without delay and to be informed of that right" and found a breach serious enough to exlude the breath sample evidence under s.24(2) of the Charter and to dismiss the impaired driving charge.
The Canadian Charter of Rights and Freedoms (aka the “Charter“). The courts have maintained that if the violations of the Charter are serious enough, evidence flowing from the violation is excluded and resulting charges are dismissed. This happens to be one of those cases.

The judge questioned why MacKinnon would have found it suspicious that the driver of the car was likely not the same person registered as the owner, since family members frequently share the same car.

“There is nothing illegal, unusual or suspicious about a driver not matching the description of a registered owner,” Charney wrote.

Charney excluded the drug evidence obtained from the search of the vehicle, and the charges against O’Grady and Ferguson-Cadore were dismissed.

In an email to the Star, Jonathan Pyzer, O’Grady’s lawyer, called the judge’s ruling significant, since court findings of racial profiling are historically rare — “despite our clients reporting them as commonplace.”

“It is also significant that as a white woman, Ms. O’Grady was found to be the victim of racial profiling as part of a biracial couple. It is an important statement that racial profiling very much exists in our society today, whether consciously or subconsciously, and that neither will be tolerated by our Courts.”

O’Grady said the case has negatively affected her boyfriend’s future in basketball. Once a player for professional teams in Japan and Iran, she said the charges against him prevented him from travelling. “This whole case ruined his career,” she said.

Ferguson-Cadore could not be reached for comment Wednesday. His lawyer, Paul Aubin, could also not be reached.

Drivers still liable in accidents, even in near-driverless cars, law firm says

Update:

This image provided by Google shows a very early version of Google's prototype self-driving car. A Canadian law firm suggest drivers of semi-autonomous vehicles may still be on the hook legally in the event of a collision.
This image provided by Google shows a very early version of Google’s prototype self-driving car. A Canadian law firm suggest drivers of semi-autonomous vehicles may still be on the hook legally in the event of a collision. (Google / Associated Press)

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Until Canadians own cars that truly drive themselves, they can forget getting off the legal hook if they’re in an accident with a vehicle that still has a steering wheel, suggests a report from Canada’s biggest law firm.

Under Canada’s common-law legal system, driving in semi-autonomous mode isn’t much different than operating a vehicle with cruise control, says the brief issued by Borden Ladner Gervais.

“As long as a driver with some ability to assume or resume control of the vehicle is present, there would seem to be a continuing basis for driver negligence and liability as they presently exist,” said the report entitled Autonomous Vehicles, Revolutionizing Our World, published this week on the firm’s website.

The report comes as the federal government contemplates developing regulations for automated vehicles. Ottawa set aside $7.3 million over two years in the spring budget to improve motor vehicle safety, with part of that money earmarked for developing new rules for self-driving cars.

But until fully autonomous vehicles hit the consumer market, there’s not much need to enact new laws, says BLG partner and report author Kevin LaRoche.

“With regards to driver liability, common law, coupled with the current legislation, may be sufficient to address liability involving all levels of autonomous vehicles, short of fully autonomous vehicles which do not require any level of human control,” LaRoche wrote.

“For fully autonomous vehicles, it would seem that legislative amendments would be required to clarify whether the owner would be vicariously liable and under what circumstances.”

Several jurisdictions have allowed testing of fully autonomous cars, buses and trucks. Ontario launched a program in January — under specific restrictions — to let auto manufacturers and high-tech companies try out their driverless inventions on the province’s roadways. None of the carmakers had applied for a testing permit under the program as of early July.

But with semi-autonomous vehicles — such as the Tesla Model S — already being sold to consumers, few jurisdictions have yet put legislative parentheses around where, when and how to drive them.

Ontario uses the SAE Standard to define categories of self-driveability on a scale from zero to five, with zero representing no automation features and five being full automation.

Category three vehicles are those considered to operate with conditional automation that requires a driver to pay attention to the road and take over control if the vehicle encounters a problem that can’t be handled fully by automated systems.

Category four vehicles would still have a human “driver,” but wouldn’t necessarily need the human to take over the controls in a pinch.

Germany’s federal transport ministry said recently it was working on a draft law to govern SAE level three and four cars.

The National Highway Traffic Safety Administration in the United States is working on new guidelines, but currently regulates autonomous vehicles under a slightly different system that was adopted in 2013.

Regardless of which scale is used, unless the car has no steering wheel, the driver will always face potential liability in an accident, with the scope depending on the circumstances of the mishap, said BLG partner Robert Love.

“There’s always going to be, we believe, that element of saying, ‘Did the driver act appropriately, prudently, in the circumstances of either engaging or disengaging whatever feature it happens to be?”‘ said Love.

It will be up to Canadian judges to decide, however, who is ultimately responsible for causing an accident in Canada — and that could also include the carmaker, he said.

Lawyers and legislators in the U.S. may already have their first test case in Florida following a recent fatal crash involving a Tesla and a tractor-trailer.

While investigators have revealed few details about the exact circumstances of the crash, there have been reports that the driver may have been distracted by a movie playing in his car.

The question for a judge may ultimately revolve around whether the driver was at fault for failing to pay attention to road hazards, or whether the sensors connected to the Tesla’s autopilot system failed to detect the white truck as it turned into the path of the car.

And it’ll be the judge who ends up portioning the blame, if there is any to be had, LaRoche predicted.

“Both parties will ultimately be before the court.”

Lack of Interpreter Leads to Dismissal of Impaired Driving Charge

Update: see previous posts – July 17, 2016 Ontario Court: Removal of Bra, Breaks the Law, July 1, 2016 Impaired Driving Charges Dismissed Due to Turban Being Withheld from Accused, May 15, 2015 Legal Aid’s Unhelpful Lawyer Leads to Impaired Driving Acquittal

The Canadian Charter of Rights and Freedoms, commonly referred to as "the Charter". In this case (R. v. Khandal, 2016 ONCJ 446) the court reviewed section 10(b) of the Charter "10. Everyone has the right on arrest or detention b) to retain and instruct counsel without delay and to be informed of that right" and found a breach serious enough to exlude the breath sample evidence under s.24(2) of the Charter and to dismiss the impaired driving charge.
The Canadian Charter of Rights and Freedoms, commonly referred to as “the Charter“. In this case (R. v. Khandal, 2016 ONCJ 446) the court reviewed section 10(b) of the Charter “It reads: 10. Everyone has the right on arrest or detention b) to retain and instruct counsel without delay and to be informed of that right” and found a breach serious enough to exclude the breath sample evidence under s.24(2) of the Charter and to dismiss the impaired driving charge.

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A Brampton judge has dismissed an impaired driving charge against a man who was not given access to a Punjabi interpreter when he spoke with a lawyer following his arrest, which violated his right to counsel.

While police did initially try to accommodate the man’s language needs, their conduct “fell below the standard of care reasonably expected of them in the circumstances,” Ontario Court Justice Paul Monahan wrote in a decision released last week.

Bikkar Khandal was arrested in October 2015 at a RIDE spot-check in Mississauga. Once Khandal had been brought to the police division, the arresting officer called duty counsel — who provide free legal advice over the phone to individuals under arrest — and also requested a Punjabi interpreter, according to Monahan’s ruling.

But the lawyer on the phone said something along the lines of “I speak English, he speaks English, we will do this in English,” and did not arrange for an interpreter, Monahan wrote. The judge found that the lawyer’s conduct was “inappropriate and wrong.”

Drinking and driving don't mix. photo by fightyourtickets.ca
Drinking and driving don’t mix. photo by fightyourtickets.ca

He also noted that after speaking with duty counsel, Khandal told the officers “but he’s in English, right? I’m not much English.” Monahan said that should have caused the police to call back duty counsel, and again request an interpreter.

The judge said this was necessary as he considered Khandal’s ability to speak English to be limited.

“It is also my view that both Constable (Michael) Lupson and Constable (Eric) Passmore ought to have known early on during the breath room attendance, when Mr. Khandal expressed concerns about the fact that duty counsel spoke English and he (Mr. Khandal) spoke little English, that Mr. Khandal could not have had a proper consultation with counsel,” Monahan wrote.

“They should have arranged a further consultation with duty counsel and a Punjabi language interpreter at that time.”

http://www.citynews.ca/wp-content/blogs.dir/sites/10/2015/04/18/peel-e1440951782114-878x494.jpg

Lupson was the arresting officer, while Passmore was the breath technician at the police division.

Khandal’s trial lawyer did not return a request for comment. A spokesman for Legal Aid Ontario, which maintains the duty counsel hotline, said the government agency is investigating and declined to comment further.

A Peel police spokesman said the force is reviewing Monahan’s decision.

The judge concluded that the breach of Khandal’s rights was serious, and he excluded the breath sample evidence, calling the decision “a relatively easy one” given the circumstances. This resulted in the charge being dismissed.

Khandal first blew 140 mg of alcohol in 100 mL of blood — nearly twice the legal limit — and a half-hour later blew 130 mg of alcohol in 100 mL of blood, according to the ruling.

“In my view, notwithstanding that Constable Lupson and Constable Passmore were attempting to act in good faith and notwithstanding that I consider them to be honest witnesses and officers, in my view they fell below the standard of care reasonably expected of them in the circumstances,” Monahan wrote.

He concluded that admitting the breath samples would bring the administration of justice into disrepute.

“It would give the court’s stamp of approval to a failure to respect the obvious and important language needs and rights to counsel of a detained person and it would be disrespectful to the diverse community in which this court operates,” Monahan wrote.

The decision comes about three weeks after a different judge at the same courthouse criticized Peel Regional Police officers who didn’t immediately return a man’s turban following his arrest. That violation resulted in the man’s impaired driving charge being tossed and prompted Peel police Chief Jennifer Evans to order an internal review.

“The reality is that when someone is in custody, they’re at the mercy of the police and it means police have to do their jobs properly, including making reasonable efforts to facilitate access to counsel,” said criminal defence lawyer Daniel Brown, who was not involved in the Khandal case.

“Putting somebody with limited English in touch with an English-speaking duty counsel is failing in that regard.”

The Khandal matter is at least the second case in a little over a year in which Legal Aid Ontario’s duty counsel hotline has come under judicial scrutiny and led to a charge being dismissed.

Toronto judge Leslie Pringle acquitted a woman of impaired driving charges in May 2015 after Pringle found the duty counsel who spoke to the woman over the phone was “yelling, rude and angry with her,” and that police should have thought of alternatives when it was clear she was having difficulty with the lawyer.

Supreme Court: Don’t Fire Employees Without Just Cause

Update:

Supreme Court of Canada. A Supreme Court of Canada ruling protects federally regulated companies from firing workers without cause (see Wilson v. Atomic Energy of Canada Ltd. 2016 SCC 29 )photo by fightyourtickets.ca
Supreme Court of Canada. A Supreme Court of Canada ruling protects federally regulated companies from firing workers without cause (see Wilson v. Atomic Energy of Canada Ltd. 2016 SCC 29 ) photo by fightyourtickets.ca

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A Supreme Court of Canada ruling now protects federally regulated companies from firing workers without cause. The Ontario government should follow suit for provincially regulated industries.

Linda Wang worked at a Toronto cosmetics manufacturer for four years. Then, two weeks after she asked her employer for extra pay she was owed for working a public holiday, she was fired. No reason was given for her termination.

That may appear unfair, but it’s perfectly legal. Under the law the company she worked at is entitled to fire workers without cause.

Indeed, under Ontario’s outdated 1968 Employment Standards Act not a single worker is protected from being dismissed without a stated reason.

That should change. And it will if the province follows the lead set recently by the Supreme Court of Canada.

After a six-and-a-half year battle that pitted Brampton’s Joseph Wilson against Atomic Energy of Canada Ltd., the court ruled that federally regulated employees, unionized or not, can only be terminated for just cause under the Canada Labour Code.

In Wilson’s case, he claimed he was unfairly terminated by AECL for exposing “improper” procurement practices at the Crown corporation. While the company offered him a six-month severance package, it maintained it did not have to give a justification for firing him.

The interior of the Supreme Court courtroom. After a six-and-a-half year battle that pitted Brampton’s Joseph Wilson against Atomic Energy of Canada Ltd., the court ruled that federally regulated employees, unionized or not, can only be terminated for just cause under the Canada Labour Code. photo by fightyourtickets.ca
The interior of the Supreme Court courtroom. After a six-and-a-half year battle that pitted Brampton’s Joseph Wilson against Atomic Energy of Canada Ltd., the court ruled that federally regulated employees, unionized or not, can only be terminated for just cause under the Canada Labour Code. photo by fightyourtickets.ca

The court, by a majority of 6 to 3, disagreed. Its ruling will now strengthen the rights of the half million non-unionized Canadian employees who work in federally regulated industries, such as banks, airlines and telecommunications. Employers will have to give a cause – such as misconduct or incompetence – before dismissing an employee.

That should set a precedent for provincially regulated companies, not to mention industries that are currently unregulated in Ontario such as farming, flower growing, fishing and accounting.

The Supreme Court ruling could not be timelier since Ontario is currently conducting consultations to update the Employment Standards Act. The Ministry of Labour says one of the complaints it heard about during hearings on how the act should be updated involved the unjust dismissal of workers. And the Workers’ Action Centre, an organization that advocates for fair employment, has asked the government not only to ensure workers are protected from wrongful dismissal, but to eliminate all occupational exemptions to the act.

An interim report on the review of the act is due in the next few weeks.

Whether or not it recommends that Ontario follow the Supreme Court’s lead and the action centre’s recommendations, the province should ensure that its updated version of the Employment Standards Act ensures that no employee from any industry can be unjustly fired.

The Supreme Court of Canada. photo by fightyourtickets.ca
The Supreme Court of Canada. photo by fightyourtickets.ca