CROWN RELATIONSHIPGovernment acted with persistent inattention and failed to act diligentlyFollowing Confederation, Canada obtained title to Red River Settlement. French-speaking Roman Catholic Metis, dominant demographic group in Settlement, resisted control by English-speaking Protestant settlers. Canada agreed, in s. 31 of Manitoba Act, 1870 (Can.), to grant 1.4 million acres of land to Metis children and, pursuant to s. 32, to recognize existing landholdings. Difficulties arose in determining who had right to share of land. Two successive allotments abandoned. Ultimately, lands distributed randomly to eligible Metis children. Canadian government eventually realized number of eligible Metis children underestimated and issued scrip redeemable for land to remaining eligible children. Scrip, based on 1879 land prices, did not permit acquisition of same amount of land in 1885. Position of Metis in Red River Settlement deteriorated over following decades as white settlers increased. Metis applied for declaration that in implementing Manitoba Act, federal Crown breached fiduciary obligations owed to Metis and federal Crown failed to implement Manitoba Act in manner consistent with honour of Crown. Trial judge dismissed claim for declaration, finding that ss. 31 and 32 of Manitoba Act did not give rise to fiduciary duty or duty based on honour of Crown and, in any event, claims barred by limitations and doctrine of laches. Manitoba Court of Appeal dismissed Metis’ appeal but appeal to Supreme Court of Canada allowed in part. While Crown undertook discretionary control of administration of land grants, obligations enshrined in ss. 31 and 32 of Manitoba Act did not impose fiduciary duty on government because no pre-existing communal aboriginal interest held by Metis; their interest in land arose from personal history rather than shared distinct Metis identity. Nor was there undertaking by Crown to act in Metis’ best interests. Honour of Crown nevertheless required Crown to take broad purposive approach to interpretation of promise and act diligently to fulfill it. Section 31 of Manitoba Act intended to give Metis children head start over expected influx of settlers from the east and to reconcile Metis’ aboriginal interests in Manitoba territory with assertion of Crown sovereignty. Section 31 was solemn constitutional obligation and engaged honour of Crown. Section 32, benefit made generally available to all settlers, did not engage honour of Crown. Government acted with persistent inattention and failed to act diligently to achieve purposes of s. 31 grant, inconsistent with behaviour demanded by honour of Crown. Manitoba Metis Federation Inc. v. Canada (Attorney General) (Mar. 8, 2013, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ., File No. 33880) Decision at 190 A.C.W.S. (3d) 927 was reversed. 223 A.C.W.S. (3d) 941.
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COMPENSATIONInterference caused by construction of new highway inflicted significant and permanent lossIn 2004, province completed new four-lane section of Highway 417 for public safety reasons. New highway routed traffic away from Highway 17. Claimant owned truck stop located on affected part of Highway 17 and took position that undertaking severely impeded road access to truck stop and substantially interfered with use and enjoyment of property. Claimant applied to Ontario Municipal Board for determination of compensation for injurious affection pursuant to Expropriations Act (Ont.). Board concluded claimant established business loss and loss in market value of affected property and awarded damages totalling $393,000 for injurious affection. Divisional Court affirmed board’s decision, finding that board reasonably concluded interference was substantial, correctly realized importance of balancing interests and conducted appropriate weighing of competing interests. Court of Appeal set aside board’s decision, finding that board failed to consider character of neighbourhood and any abnormal sensitivity of claimant and failed to recognize heightened importance of utility of defendant’s conduct where interference was product of essential public service. Claimant’s appeal allowed. Reasonableness of interference must be determined by assessing whether individual claimant has shouldered greater share of burden of construction than reasonable to expect without compensation. Interference caused by construction of new highway inflicted significant and permanent loss. Act provides right to compensation for injurious affection if damage results from action taken under statutory authority, action would give rise to liability but for that statutory authority and damage results from construction and not use of works. Only issue was whether claimant could have successfully sued for damages caused by construction under law of private nuisance if highway construction not done under statutory authority. Although focus in nuisance on whether interference suffered by claimant unreasonable, defendant’s conduct not irrelevant. Court of Appeal erred in finding that board’s application of law of nuisance to facts unreasonable. Board not required to specifically enumerate and refer by name to every factor. Board did not fail to take account of utility of province’s activity or fail to engage in required balancing. Board’s conclusion that claimant should not be expected to endure permanent interference that caused significant diminution of its market value in order to serve greater public good was reasonable. Antrim Truck Centre Ltd. v. Ontario (Ministry of Transportation) (Mar. 7, 2013, S.C.C., McLachlin C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ., File No. 34413) Decision at 332 D.L.R. (4th) 641, 202 A.C.W.S. (3d) 310 was reversed. 223 A.C.W.S. (3d) 970.
EMPANELLINGNon-disclosure did not affect composition of juryAccused convicted of fraud. Crown seeking and obtaining information from local police forces regarding prospective jurors’ criminal histories and other information about jurors. Crown not disclosing information to defence. Court of Appeal held that non-disclosure did not affect composition of jury or create trial unfairness. Appeal dismissed. Crown breached obligations by failing to disclose information obtained about prospective jurors. Accused failed to show that non-disclosure affected composition of jury. Conduct of Crown and police was improper but did not warrant setting aside proceedings as miscarriage of justice. R. v. Emms (Dec. 21, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ., File No. 34087) Decision at 264 C.C.C. (3d) 402 was affirmed. 104 W.C.B. (2d) 1041.
PRESUMPTIONNew provisions created possibility trier of fact could have reasonable doubt but be bound to convictAccused charged with over 80. Accused challenged new provisions in Criminal Code that restricted defence’s ability to contest reliability of breathalyzer results. Trial judge found that new provisions did not preclude defence from calling evidence of her alcohol consumption to rebut breathalyzer results. Trial judge rejected accused’s evidence and convicted her. Appeal allowed in part. Statutory presumption violates right to be presumed innocent if accused could be convicted even if trier of fact had reasonable doubt. New provisions created possibility that trier of fact could have reasonable doubt that instrument malfunctioned but be bound to convict. Section 258(1)(c) and (d.01) infringed s. 11(d) of Charter. Objective of impugned provisions to give breathalyzer test results weight consistent with scientific value was pressing and substantial. Provisions included three separate and cumulative new requirements accused must satisfy to rebut presumptions of accuracy and identity. First, accused must raise doubt that breathalyzer instrument functioning and operated properly. This requirement was justified pursuant to s. 1. Second requirement for evidence that determination that blood alcohol level exceeded legal limit resulted from malfunction or improper operation of instrument imposed excessive burden on accused and was not justified. Third requirement not justified as no rational connection between objective and requirement of adducing evidence that blood alcohol level of accused would not have exceeded legal limit at time when offence allegedly committed. Pursuant to s. 258(1)(d.1), presumption of identity of test results showing that blood alcohol level of accused exceeded legal limit with his or her actual blood alcohol level at time of alleged offence could be rebutted only if evidence adduced by accused showed his or her consumption of alcohol consistent not only with blood alcohol level under legal limit at time of offence, but also with test results. Accused would only be required to testify where defence alleged very unusual alcohol consumption pattern. Trial judge erred by permitting accused to rebut presumption of accuracy by presenting evidence to contrary defence but error did not affect conviction as he did not believe accused. R. v. St-Onge Lamoureux (Nov. 2, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein and Cromwell JJ., File No. 33970) Decision at 95 W.C.B. (2d) 45 was reversed. 104 W.C.B. (2d) 825.
FREEDOM OF EXPRESSIONTerrorism provisions directed at violence and threats of violenceAccused charged with seven terrorism-related offences. Accused alleged to have designed and built remote detonator in association with terrorists in United Kingdom and Afghanistan. Trial judge held that definition of terrorism in Criminal Code violated s. 2 of Canadian Charter of Rights and Freedoms by requiring Crown to prove that impugned conduct was committed for political, religious, or ideological purpose. Trial judge held that this would have chilling effect on those who shared beliefs but not methods with accused terrorists. As remedy trial judge severed motive clause from definition of terrorism. Accused argued unsuccessfully at trial that his acts were intended to take part in legitimate armed conflict in Afghanistan and fell within armed conflict exception in definition of terrorist activity. Court of appeal dismissed accused’s appeal and found that trial judge erred in finding motive clause unconstitutional. Accused’s appeal dismissed. Terrorism offences were not overbroad. Terrorism provisions in Criminal Code were directed at violence and threats of violence which are not protected expression under s. 2. No evidence that provisions would create chilling effect. No evidentiary foundation to argument that accused’s acts related to armed conflict and were consistent with international law. R. v. Khawaja (Dec. 14, 2012, S.C.C., McLachlin C.J.C., LeBel, Fish, Abella, Rothstein, Cromwell and Karakatsanis JJ., File No. 34103) Decision at 273 C.C.C. (3d) 415, 97 W.C.B. (2d) 97 was affirmed. 104 W.C.B. (2d) 900.
FUNDAMENTAL JUSTICENo reasonable possibility jury would have been different had disclosure been madeAccused appealing conviction for first degree murder following high profile trial for killing police officer. While appeal pending, Crown disclosing fact police had annotated jury lists with personal opinions as to suitability of jurors. Police providing only perfunctory opinions as to suitability of jurors, not providing basis for opinions. Extensive pre-screening of jurors taking place to ascertain any partiality, bias as victim was police officer. Crown challenging some jurors with positive reports from police, not challenging one with negative report. Court of Appeal dismissing appeal, holding police opinions were not “information” required disclosed. Appeal court holding jury would not have been differently constituted if police opinions had been disclosed in light of extensive pre-trial screening, pattern of use of peremptory challenges. Further appeal dismissed. Crown permitted to consult with police regarding concerns relating to partiality, eligibility, and suitability of prospective jurors provided relevant information disclosed. General impressions of officers need not have been disclosed provided underlying information readily ascertainable by members of community, and defence can draw own inferences based on raw information. Failure to disclose must have resulted in reasonable possibility that jury would have been differently constituted in order to displace presumption of juror impartiality. Crown entitled to demonstrate juror partiality if presumption displaced. Crown should not have gathered police opinions in accused’s case as reflected information obtained as police officers, and community residents with no underlying information provided for bald opinions. Court of Appeal holding that no reasonable possibility jury would have been different had disclosure been made entitled to deference. No appearance of unfairness in proceedings that rose to level of miscarriage of justice. R. v. Davey (Dec. 21, 2012, S.C.C., McLachlin C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ., File No. 34179) Decision at 264 C.C.C. (3d) 465, 93 W.C.B. (2d) 668 was affirmed. 104 W.C.B. (2d) 751.
AGGRAVATED ASSAULTAggravated assault made out in circumcision of son with no skill or trainingAccused attempting to circumcise four-year-old son. Accused having no skill or training in field, but conducting rudimentary research before performing procedure. Child needing emergency surgery at hospital, experiencing pain, temporary disfigurement, as result of accused’s actions. Accused seeking circumcision of son as part of his own religious beliefs. Trial judge convicting accused of criminal negligence causing bodily harm, acquitting of aggravated assault and assault with weapon. Trial judge holding type of wounding required for aggravated assault conviction not made out, as child not maimed, disfigured after timely medical intervention. Crown’s appeal from acquittal for aggravated assault allowed by Court of Appeal and conviction entered. Accused’s appeal dismissed. Elements of aggravated assault were established. R. v. W. (D.J.) (Nov. 16, 2012, S.C.C., LeBel, Fish, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ., File No. 34623) Decision at 282 C.C.C. (3d) 352, 100 W.C.B. (2d) 154 was affirmed. 104 W.C.B. (2d) 623.
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Supreme Court
For a snippet of this week's stories, check out the Ontario Legal News Update. 
For a snippet of this week's stories, check out the Ontario Legal News Update. 
For a snippet of this week's stories, check out the Ontario Legal News Update. 