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Case Law
Caselaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts.
These cases may be found online in BestCase and other electronic resources from Canada Law Book.
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Practice, Process, And Procedure |
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Supreme Court of Canada
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GENERAL
Where Crown elects to proceed summarily, proceedings are governed by provisions of Part XXVII of Criminal Code, including six-month limitation period
Crown election to proceed by summary conviction. Plea not yet entered. Information sworn more than six months after alleged offence. Where information sworn more than six months after alleged offence proper remedy is to declare mistrial. Where accused appeals summary conviction on ground that proceedings were instituted outside of six month limitation period appropriate remedy is to set aside conviction. Where mistrial declared or conviction set aside Crown may proceed again by indictment unless court is satisfied this would amount to abuse of process. Where Crown elects to proceed summarily proceedings are governed by provisions of Part XXVII of Criminal Code including six month limitation period. Where accused does not consent to prosecution of summary conviction proceeding outside of limitation period validity of Crown summary election and ensuing proceedings fatal. Crown summary election and ensuing proceedings are nullity and do not operate as bar on Crown’s ability to then proceed by indictment. No Crown appeal against acquittal lies on ground that proceedings were statute-barred as it is Crown’s responsibility to ensure properly instituted proceedings.
R. v. Dudley (Dec. 17, 2009, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 32603) Appeal from 231 C.C.C. (3d) 80, 77 W.C.B. (2d) 277 dismissed. 86 W.C.B. (2d) 156 (40 pp.).
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Federal Court of Canada
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REFUGEE STATUS
Denial of Pakistani citizen’s refugee claim upheld on review
Application for judicial review of decision of Refugee Protection Division of Immigration and Refugee Board denying refugee claim. Applicant was citizen of Pakistan and member of Pakistan Muslim League who had been active in party. Alleged motivation for persecution was applicant’s political affiliation and participation in rallies to oppose ruling party. Board found that evidence supporting persecution on basis of political opinion not well-founded and found there was internal flight alternative to Lahore. Application dismissed. Applicant did not discharge onus of proof to demonstrate that he would be persecuted anywhere in country of origin or that it would unreasonable to expect him to move if an Internal Flight Alternative was found. Insufficient evidence to satisfy board that police continued to be interested in applicant. Reasonable for board to look for corroborating evidence of persecution anywhere in country in order to find objective fear given change in political hierarchy since applicant fled Pakistan. Applicant’s opinion as to links in police system and general influence exerted by ruling party on police not satisfactory for board to find serious possibility of risk of cruel and unusual punishment or death upon his return to Pakistan. Reasoning of board fell within range of reasonable outcomes.
Butt v. Canada (Minister of Citizenship and Immigration) (Jan. 18, 2010, F.C., Pinard J., File No. IMM-2492-09) 183 A.C.W.S. (3d) 1083 (8 pp.).
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Bankruptcy And Insolvency |
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Ontario Civil Cases
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OFFENCES
Trustee authorized to initiate prosecution of bankrupt for offences under s. 198(2) of Bankruptcy and Insolvency Act (Can.)
Application by trustee pursuant to s. 205 of Bankruptcy and Insolvency Act (Can.), for authorization to initiate proceedings for prosecution of bankrupt for offences under Criminal Code (Can.), and under Act. Bankrupt lured victims to financial ruin in Ponzi scheme. Order made authorizing trustee to initiate prosecution of bankrupt for offences under s. 198(2) of Act. Court declined to exercise discretion to authorize initiation of prosecution for fraud and/or theft under Code. Offences committed in connection with bankrupt’s estate but before there was any insolvency event. Scope of fraud massive but did not sufficiently offend Bankruptcy Court or insolvency process to warrant prosecution by trustee. Court satisfied that offences under Act of failing to make surplus income payments, of failing to file financial statements required by trustee and failing to provide other duties including keeping trustee informed of whereabouts had been committed by bankrupt and were sufficiently connected to administration of estate that it was proper to exercise discretion to authorize initiation of prosecution by trustee.
White (Re) (Jan. 22, 2010, Ont. S.C.J., Registrar Nettie, File No. 31-428403) 183 A.C.W.S. (3d) 911 (8 pp.).
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Ontario Criminal Cases
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DRUG OFFENCES
Sentencing judge ignored principle that conditional sentences rare for large residential marijuana grow operations
Crown appeal from imposition of twelve month conditional sentence for production of marijuana. Circumstances of offence involved substantial residential marijuana grow operation with significant hydro bypass. Sentencing judge erred in principle by ignoring principle that conditional sentences are rare for large residential marijuana grow operations. Sentencing judge erred by refusing to take specific and general deterrence into account in imposing sentence. Sentencing judge erred in principle by basing reasons for sentence on personal views and observations about practical deterrent effect of custodial sentences on grow operations. Sentencing judge’s reasons entitled to no deference. Sentence demonstrably unfit but interests of justice not served by imposing custodial sentence where offender has served entire conditional sentence. Crown application for leave to appeal sentence granted and appeal from sentence dismissed.
R. v. Song (Dec. 16, 2009, Ont. C.A., Moldaver, Simmons and Blair JJ.A., File No. C49621) 86 W.C.B. (2d) 177 (9 pp.).
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Federal Court of Appeal
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CANADA PENSION PLAN
Appellant chose wrong procedure and wrong court
Crown’s motion to strike notices of appeal was allowed. Judge concluded Tax Court was without jurisdiction to entertain appeals. Appeal was dismissed. There were no valid foundations for allegation of reasonable apprehension of bias. Section 26.1(1)(e) of Canada Pension Plan was not interpreted so broadly as to include issues of validity of statutory provisions by which appellant was obliged to pay Canada Pension Plan contributions and contribution rate. Section 26 referred to challenge to correctness of arithmetic result of calculation of contribution payable. Appellant chose wrong procedure and wrong court.
Davitt v. M.N.R. (Dec. 8, 2009, F.C.A., Sexton, Evans and Sharlow JJ.A., File No. A-525-08) 183 A.C.W.S. (3d) 899 (8 pp.).
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Supreme Court of Canada
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LIBEL AND SLANDER
Law of defamation should be modified to recognize new defence of responsible communication on matters of public interest
Libel action against newspaper raised applicability of “responsible journalism” defence. Personal plaintiff was prominent citizen and businessman. His home and office were built on large property on lake. He purchased large tract of adjacent Crown land on which he built private golf course. Local residents and cottagers raised environmental concerns when plaintiff sought to acquire additional land to expand golf course. Defendant newspaper published article regarding proposed golf course expansion. Plaintiff and his company sued newspaper for libel, arguing article suggested plaintiff used political influence gained by friendship with Premier and donations to Conservative Party to circumvent local citizens’ concerns and normal approval process. Reporter attempted to verify allegations but plaintiff chose not to provide comment. At trial newspaper argued both traditional defence of qualified privilege and emerging defence of responsible journalism. Trial judge rejected former and sent case to jury essentially on defences of truth and fair comment. Jury rejected defences and found newspaper liable. Newspaper’s appeal to Ontario Court of Appeal allowed. Court held that trial judge erred by conflating two defences of public interest responsible journalism and qualified privilege and should have left responsible journalism defence with jury. Although in leaving defence of fair comment on matter of public interest with jury trial judge properly set out honest belief test, his repetition of concept that when applying test, jury members are to consider what “fair minded” person would believe constituted error. Trial judge also failed to make it clear that even if jury found some elements that could be construed as malice, if defence of fair comment otherwise applied, malice would only defeat defence if it was dominant purpose of defamatory article. Court of Appeal ordered new trial. Plaintiffs appealed and newspaper cross-appealed, asking court to apply new responsible journalism defence and dismiss action. Appeal and cross-appeal dismissed. Law of defamation should be modified to provide greater protection for communications on matters of public interest. Current law, which accords no protection for statements on matters of public interest published to world at large if cannot be proven to be true, inhibits political discourse and debate on matters of public importance. When proper weight given to constitutional value of free expression on matters of public interest, balance tips in favour of broadening defences available to those who communicate facts it is in public’s interest to know. Reasonable and proportionate response to need to protect reputation while sustaining public exchange of information that is vital to modern Canadian society permits defence allowing publishers to escape liability if they can establish they acted responsibly in attempting to verify information on matter of public interest. Law of defamation should be modified to recognize new defence of responsible communication on matters of public interest. Traditional defence of qualified privilege remains intact. Defence of responsible communication requires that: (a) publication be on matter of public interest; and (b) defendant show that publication responsible in that he or she diligent in trying to verify allegation(s). Judge determines whether impugned statement relates to matter of public interest. If public interest shown, jury decides whether defence of responsible communication established. If dispute itself matter of public interest and allegations fairly reported, report may be responsible even if some of statements made may be defamatory and untrue provided: (1) report attributes statement to person, preferably identified, thereby avoiding total unaccountability; (2) report indicates, expressly or implicitly, that truth not verified; (3) report sets out both sides of dispute fairly; and (4) report provides context in which statements made. Open to jury to consider statement attributed to neighbour that “everyone thinks it’s a done deal” as statement of fact which raised defence of responsible communication on matter of public interest. Trial judge erred in failing to leave this defence or any similar defence to jury.
Grant v. Torstar Corp. (Dec. 22, 2009, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 32932) Decision at 301 D.L.R. (4th) 129, 171 A.C.W.S. (3d) 969 was affirmed. 183 A.C.W.S. (3d) 1173 (79 pp.).
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Federal Court of Canada
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CHARTER OF RIGHTS
Deportation prior to consideration of humanitarian and compassionate factors did not engage rights
under s. 7 of Charter
Applicant abandoned refugee claim and received negative pre-removal risk assessment. Applicant lived in Canada with common law spouse and two children. Applicant was employed from 2001 to 2008. Applicant’s deportation in 2008 was postponed. Applicant was arrested to failing to report to immigration officials. Common law spouse paid $3,000 for applicant’s release. Since arrest applicant was prohibited from working without Minister’s written authorization. Application for exemption based on humanitarian and compassionate grounds was denied. Applicant’s request for fee exemption was denied. Application for judicial review was allowed. Applicant’s motion to strike affidavit was allowed. Respondent’s failure to permit cross-examination was sufficient justification for allowing motion. Applicant had standing. Applicant was not able to afford to pay processing fees. Applicant and family were directly affected. Court followed case law that s. 25(1) of Immigration and Refugee Protection Act (Can.), did not require Minister to consider request to exempt foreign national from payment of fees and deportation prior to consideration of humanitarian and compassionate factors did not engage rights under s. 7 of Canadian Charter of Rights and Freedoms. Court followed case law that poverty was not analogous ground under s. 15 of Charter. Questions were certified.
Ndungu v. Canada (Minister of Citizenship and Immigration) (Dec. 11, 2009, F.C., Snider J., File No. IMM-1088-09) 183 A.C.W.S. (3d) 1086 (13 pp.).
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Ontario Civil Cases
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FREEDOM OF INFORMATION
Adjudicator’s conclusion that records not “correctional” records was reasonable
Adjudicator required disclosure to requester of records under Freedom of Information and Protection of Privacy Act (Ont.). Adjudicator concluded records of requester in custody under remand were not correctional records within meaning of s. 49(e) of Act. Applicant sought to quash order. Application was dismissed. Decision was reasonable. Adjudicator’s ruling that Minister did not discharge burden under Act was reasonable. Minister’s submissions amounted to bald assertions of Minister’s position. Adjudicator was entitled to assess wording of s. 49(e) of Act and to give word “correctional” its’ plain and ordinary meaning. There was justifiable, intelligible and transparent reasoning path to tribunal’s conclusion. Reasons were tenable to support decision. It was within range of acceptable outcomes that exemption in s. 49(e) stand as distinct enactment pertaining to confidential records generated and kept for purposes of post conviction or correctional functions of Ministry.
Ontario (Ministry of Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner) (Dec. 8, 2009, Ont. S.C.J. (Div. Ct.), Cunningham A.C.J.S.C., Then R.S.J. and Carnwath JJ., File No. 163/06) 183 A.C.W.S. (3d) 886 (26 pp.).
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