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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.

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Charter of Rights

Right to counsel

Statutory compulsion to answer questions at border does not constitute detention

Border services officer was suspicious when accused told her that she had brought fruit juice into Canada and upon observing unusual behaviour of accused as she removed cans of fruit juice from her luggage. Officer conducted more intrusive inquiry and tested juice cans for drugs. Cans tested positive for cocaine. Accused was arrested for importing cocaine and officer gave accused caution and right to counsel. Accused sought to exclude statements to officer on basis that they were obtained in violation of ss. 7 and 10 of Charter. Statements admissible. There was no Charter breach. Statutory compulsion to answer questions at border does not constitute detention under s. 10(b) of Charter. Person is not detained when border official asks routine questions and conducts routine searches. Accused was not detained simply because of her look-out status and was subjected to same routine questioning and searches as anyone else referred for secondary inspection. Officer had strong particularized suspicion to warrant more intrusive form of inquiry after showing accused X-ray images of cans and accused asked “What’s in it?.” Only at that point was accused was detained and ss. 7 and 10(b) rights were engaged.
R. v. Sinclair (Feb. 3, 2016, Ont. S.C.J., Barnes J., CRIMJ(F)354/10) 128 W.C.B. (2d) 140.


Arrest

Legality

Subjective and objective components of test for reasonable and probable grounds for arrest were established

Accused was convicted of possession of cocaine for purpose of trafficking, possession of marijuana for purpose of trafficking, and two counts of possession of proceeds of crime. Accused’s arrest was part of police investigation undertaken as result of information received from confidential informants that P, whose employee W lived in condominium building, was high-level drug dealer. Police entered building three times without search warrant. Information obtained during three entries was excluded under Canadian Charter of Rights and Freedoms. When P exited building on third occasion, he had blue and white box which surveillance team observed accused take from P’s vehicle. Accused unsuccessfully applied to exclude evidence of marihuana and cocaine found in box. Accused appealed convictions. Appeal dismissed. Police did not lack reasonable and probable grounds for accused’s arrest independent of evidence illegally obtained in building. Trial judge properly concluded that, even after excluding information gathered during warrantless entries into building, combined information from informants, totality of investigation, collective observations by police of accused’s vehicle and location, and interaction between accused and P, satisfied both subjective and objective components of test for reasonable and probable grounds for arrest.
R. v. Labelle (Feb. 8, 2016, Ont. C.A., David Watt J.A., P. Lauwers J.A., and C.W. Hourigan J.A., CA C58138) 128 W.C.B. (2d) 136.


Constitutional Law

Charter of Rights

Applicant was granted constitutional exemption from prohibition against physician-assisted death

Applicant, 81 years old with advanced-stage aggressive lymphoma, granted declaration that he satisfied criteria for constitutional exemption from prohibition against physician-assisted death. He was also granted declaration that circumstances of his death would not require notification to coroner under Coroners Act (Ont.). Applicant established he was competent adult person, had grievous and irremediable medical condition that was causing him to endure intolerable suffering which could not be alleviated by any treatment and he clearly consented to termination of life. Coroner need not be notified of applicant’s death because death would not be from a cause other than by disease nor would his death be circumstance that required investigation under Act.
B. (A.) v. Canada (Attorney General) (Mar. 17, 2016, Ont. S.C.J., Perell J., CV-16-00AD001-00ES) 263 A.C.W.S. (3d) 919.


Civil Procedure

Case management

Court could do nothing further to help self-represented plaintiff

Actions had long history and arose from 2000 motor vehicle accident. Plaintiff commenced actions against defendant driver and Statutory Accident Benefits action against her insurer. Plaintiff had been represented by many different lawyers throughout and actions had been subject to many motions throughout years. Capacity assessment was conducted and found plaintiff capable, though psychiatric disorders were identified. Tentative settlement was reached but plaintiff refused to conclude. Plaintiff’s counsel had withdrawn and plaintiff was now self-represented. Trial date was vacated to find amicus curiae, given court’s concerns with plaintiff’s ability to defend herself, but plaintiff’s relationship with amicus curiae had also irreparably broken down. Given plaintiff’s resolve to continue self-represented, court could do nothing further to help her, so matter was to proceed to scheduling trial, and defendant’s motion to dismiss for delay and plaintiff’s former lawyers’ motion for charging order, which had been adjourned, would also be scheduled.
Huang v. Braga (Feb. 11, 2016, Ont. S.C.J., T. McEwen J., 02-CV-223298 CM3, 06-CV-316408 PD1) 263 A.C.W.S. (3d) 902.


Privacy Legislation

GENERAL

Conclusions in report of Office of Privacy Commissioner were reasonable

Applicant complained that Department of Human Resources and Skills Development Canada (HRSDC) improperly collected personal information from her employer in connection with its Targeted Wage Subsidy Program. Office of Privacy Commissioner (“OPC”) commenced formal investigation and advised applicant of investigation and invited her to submit additional information, which she did. HRSDC also made submissions, including fact it was unsuccessful in finding any files pertaining to applicant, and time for file retention had expired. Individuals interviewed by investigator had no recollection of events. Report concluded applicant’s name, phone number and SIN were collected, and this constituted personal information under s. 3 of Privacy Act (Can.), and Department had collected information as part of its mandate, but it could not conclude whether collection was without applicant’s consent given 12 years has passed and program no longer existed. Application for judicial review of report issued. Application dismissed. OPC’s operation as ombudsman, issuance of non-binding reports and master of own procedure militated against highly formal proceedings. Applicant had ample opportunity to make submissions and did so, and there was no indication of bias or reasonable apprehension thereof. Given investigators findings and numerous unsuccessful attempts to obtain information from HRSDC, the report’s conclusions were reasonable and the reasons were justified, transparent and intelligible.
W. (E.) v. Canada (Privacy Commissioner) (Dec. 24, 2015, F.C., Alan S. Diner J., T-125-13) 263 A.C.W.S. (3d) 1062.


Planning

Planning authority

Superintendent of national park could consider concept proposal that did not comply with current management plan

Superintendent of Jasper National Park approved for further consideration in development review process concept proposal of MTL to develop 10 to 15 tent cabins under new license of occupation at lake subject to park management plan amendment. Applicants asserted tent cabin element of concept proposal was not permissible under management plan, which prohibits release of new land for overnight commercial accommodation outside community of Jasper. Applicants sought judicial review. Application dismissed. Applicants wished to ensure that no amendments to management plan were made that would permit MTL’s proposal to proceed, but there was no basis to believe that such amendment would not be lawfully enacted. There was no reason why Parks Canada could not invite MTL to proceed with phase two of concept review on contingency basis set out in Superintendent’s decision. For purpose of simply deciding that further consideration should be given to proposal, decision was reasonable. Applicants were seeking to make management plan legally binding documents in strict and specific sense that was at odds with purpose as general guideline that provided long-term strategic direction. There was nothing in management plan, legislation or any jurisprudence to support proposition that Superintendent could not consider concept proposal that did not comply with current management plan. Decision made it clear that Superintendent did not approve tent cabin element of concept proposal and recognized that amendment to management plan would be required. Decision was no more than consent to proceed to phase two of review process, subject to overriding consideration of amendment to management plan. Amendments to Management Plan had their own process and, as yet, there was no reason to think that any proposed amendments would not be legitimate and made in accordance with that process. There was simply no evidence o support accusations that Superintendent was seeking amendments to management plan to accommodate MTL.
Canadian Parks and Wilderness Society v. Maligne Tours Ltd. (Feb. 8, 2016, F.C., James Russell J., T-1808-14) 263 A.C.W.S. (3d) 1058.


Taxation

Income tax

Tax Court judge erred by failing to consider whether it was implicit that taxpayer was required to incur certain costs in order to earn commissions

Taxpayer employee of car dealership incurred various expenses to support sales, including costs relating to contact with clients and promotional expenses, as well as costs of transferring new cars to dealership to obtain higher commission and of installing certain accessories on certain cars sold. Taxpayer claimed expenses as deductions from employment income. Minister assessed taxpayer, disallowing such deductions on basis that expenses were not “required under employment contract” as set out in s. 8(1)(f) of Income Tax Act (Can.). Taxpayer’s appeal was dismissed. Taxpayer appealed. Appeal allowed in part. Tax Court judge erred in relying on employer’s personal perspective, without considering whether, regarding contract objectively, it was implicit that taxpayer would be required to incur certain costs in order to earn commissions contemplated by contract. Tax Court judge also erred in failing to address possibility that some expenses might be required under contract and others might not. Tax Court judge did not identify and segregate those expenses related to development and marketing of taxpayer’s sales, which he was not required to incur under contract, and those which, when contract was viewed objectively, were directly needed for taxpayer to sell cars and earn commissions and were expressly agreed with dealership. Taxpayer’s evidence showed mutual understanding that expenses for transporting cars to dealership and purchasing accessories to be included on delivery of vehicle were required. Without such expenses, taxpayer could not earn higher percentage commission that dealership agreed to pay him if vehicle was present in community or could not deliver merchandise that dealership had agreed to deliver to client. Assessment should be varied to allow deductions for costs incurred on transportation of vehicles to deliver and to purchase accessories or enhancement where dealership was also covering part of costs and expense was charged back.
Urquhart v. R. (Mar. 4, 2016, F.C.A., Johanne Gauthier J.A., Donald J. Rennie J.A., and Mary J.L. Gleason J.A., A-56-15) 263 A.C.W.S. (3d) 1082.

Constitutional Law

Remedies

Extension of declaration of invalidity was granted

Court declared ss. 241(b) and 14 of Criminal Code of no force and effect to extent that they prohibited physician-assisted death in certain circumstances. Court granted 12-month suspension of declaration of invalidity. Attorney-General of Canada applied for six-month extension of declaration of invalidity. Extension granted for four months. Interruption of legislative work due to federal election justified extension. Exemptions to extension granted to Quebec at its request and individuals who apply to superior court for relief.
Carter v. Canada (Attorney General) (Jan. 15, 2016, S.C.C., Abella J., Karakatsanis J., Wagner J., Gascon J., Côté J., McLachlin C.J., Cromwell J., Moldaver J., and Brown J., 35591) 128 W.C.B. (2d) 130.


Appeal

Grounds

Trial judge’s errors in assessment of credibility deprived accused of fair trial

Accused were charged with importing cocaine and possessing cocaine for purpose of trafficking. Accused A and R were truck drivers who brought load of ice cream from California over border. Customs officials found large amount of cocaine hidden in load. Both accused testified and denied knowledge of cocaine. R testified that he left A overnight at one point in California. Trial judge rejected evidence of both accused and referred to R’s defence as alibi. Appeal from convictions dismissed. Majority of Court of Appeal held that trial judge mischaracterized R’s defence as alibi but this error did not affect his finding of guilt. Dissenting judge held that trial judge made numerous errors in assessing R’s credibility, depriving him of fair trial. R appealing to Supreme Court of Canada. For reasons given by dissenting judge, appeal allowed and new trial ordered.
R. v. Riar (Nov. 10, 2015, S.C.C., McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Brown J., 36449) Decision at 121 W.C.B. (2d) 555 was reversed. 128 W.C.B. (2d) 107.

Charter of Rights

Cruel and unusual treatment or punishment

Mandatory minimum sentences declared of no force or effect

Accused was convicted of living on avails of prostitution of female person under age of 18 years, procuring under 18-year-old female to prostitution, and obtaining sexual services from female person who was under age of 18 years. First and third count carried minimum custodial sentences. Accused brought motion for declaration that mandatory minimum sentences be of no force and effect. Motion granted. Section 212(2) and (4) of Criminal Code were declared of no force or effect. Sentences would be out of line for persons within reasonably foreseeable hypothetical situation. Violation of s. 12 of Canadian Charter of Rights and Freedoms was established. Hand in hand with that consideration was denial of fundamental justice. Section 1 of Charter could not save impugned sections because they were far beyond acceptability to society.
R. v. Badali (Feb. 1, 2016, Ont. S.C.J., B. Glass J., 12-06456G) 127 W.C.B. (2d) 634.


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