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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


Constitutional challenge to Mutual Legal Assistance dismissed

V and L were subject of ex parte applications for gathering and sending orders under ss. 18 and 20 of Mutual Legal Assistance in Criminal Matters Act. V and L argued that ex parte presumption for those proceedings violated ss. 7 and 8 of Charter. Application judge dismissed application for declaration of invalidity. Appeal dismissed. Applications for gathering and sending orders were investigative and not adjudicative proceedings. Ex parte presumption was for valid policy reasons including need for confidentiality and expedition. Act contained sufficient safeguards to comply with ss. 7 and 8 of Charter.
United States of America v. Viscomi (Jun. 30, 2015, Ont. C.A., Janet Simmons J.A., E.A. Cronk J.A., and R.A. Blair J.A., File No. CA C57211, C57910, C59973, C59982) Decision at 120 W.C.B. (2d) 538 was affirmed. Decision at 107 W.C.B. (2d) 377 was reversed.  123 W.C.B. (2d) 347.



Reasonable probability that verdict would have been different had evidence been adduced not established

Accused appealed his conviction for carrying concealed weapon and possession of weapon for dangerous purpose. Accused allegedly deposited “shank” in fellow inmate’s pocket at detention centre. Sole ground of conviction appeal was alleged incompetence of counsel. Crown’s case rested entirely on evidence of one witness, correctional officer, who swore she saw accused place shank in pocket of other inmate. Trial judge found officer’s evidence credible and reliable. Trial judge rejected assertion that absence of video evidence went against Crown, noting there was no evidence closed-circuit cameras would have captured transfer. Nor was trial judge prepared to draw adverse inference from Crown’s failure to call other inmate. Accused took issue with counsel’s failure to pursue disclosure of video recordings of events at detention centre or to bring lost evidence application on learning that video had been destroyed; counsel’s failure to seek adjournment of trial, when accused requested that other inmate be called as witness; and counsel’s failure to call accused to testify. Accused asserted he did not testify because he was coerced by his counsel. Trial counsel said decision not to call accused was tactical one, based on his experience with accused as witness in previous case, and accused accepted his advice. Appeal dismissed. Accused had not established reasonable probability verdict would have been different had evidence been adduced. There was no evidence video recording device would have captured transaction. In absence of that evidence, and in view of accused’s delay in requesting production of video, it was unlikely lost evidence application would have been successful. It would be matter of pure speculation to conclude other inmate’s evidence would have probably affected outcome of proceeding and there was no evidence it would have. Accused had strong motive to fabricate claim of coercion by counsel. Put more generously, time and reflection may have caused accused to persuade himself that counsel’s strong advice amounted to coercion. It was obvious accused knew his way around courtroom and was well-informed of his legal right, further causing court to doubt his claims of coercion. Counsel performed as instructed and conducted what trial judge described as “skillful and vigorous” cross-examination of correctional officer. Court was not persuaded counsel coerced accused not to testify or otherwise ignored his instructions.
R. v. Nwagwu (Jul. 13, 2015, Ont. C.A., G.R. Strathy C.J.O., J.C. MacPherson J.A., and M.L. Benotto J.A., File No. CA C57022) 123 W.C.B. (2d) 308.

Contempt of Court


Evidence justified finding of contempt beyond reasonable doubt

Parties had five-year-old daughter. Father brought contempt motion alleging mother failed to comply with terms of temporary access order. Motion judge found mother in contempt and ordered she pay fine of $5,000 plus costs of $10,000 to be set off against child support arrears. Mother’s appeal was dismissed. Mother again appealed finding of contempt. Appeal dismissed. Access order clearly and unequivocally set out dates and time of access visits. Order provided sufficient clarity for mother to understand allegations giving rise to contempt motion. Evidence justified motion judge’s finding of contempt beyond reasonable doubt. Appeal judge did not err in finding that penalty imposed by motion judge was modest in circumstances. While decision to set-off costs was unusual, order was made with child’s best interests in mind. Motion judge did not err in not bifurcating liability and penalty phases of contempt motion.
Rego v. Santos (Jul. 21, 2015, Ont. C.A., Alexandra Hoy A.C.J.O., Gloria Epstein J.A., and Grant Huscroft J.A., File No. CA C58282) 256 A.C.W.S. (3d) 79.

Civil Procedure


Applicant granted permission to cross-examine affiants in relation to preservation motion

Police executed search warrant at residence of K and seized $17,700 Canadian in cash from vehicle parked in garage. Vehicle was registered to H. During criminal proceedings, K’s lawyer advised court that money seized belonged to K. Crown withdrew drug trafficking charges against K. Lawyer then met with civil remedies for illicit activities office that he now represented H as well and that $17,700 belonged to H not K. Lawyer served application pursuant to s. 490 of Criminal Code requesting $17,700 seized from K’s residence be released to H and return order was obtained. Applicant brought application for forfeiture of $17,700 pursuant to Civil Remedies Act and brought preservation motion. H had new lawyer who responded to preservation motion. H’s materials included affidavit sworn by former lawyer. Appended as exhibit to former lawyer’s affidavit was copy of s. 490 application record that included affidavits of H, K and H’s husband V. Applicant brought motion to compel cross-examination of deponents of exhibit affidavits. Motion granted. H was not named as respondent but she had interest in money and in preservation motion. H was party with adverse interest and her affidavit was essential part of civil application. H could be cross-examined on her affidavit, which was appended to former lawyer’s affidavit. Since new lawyer took step of filing exhibit affidavits, applicant had right to cross-examine on them. Court exercised its discretion to allow cross-examination of H, K and V on exhibit affidavits. Exhibit affidavits were not spent. This was not collateral attack against order made in s. 490 application. Applicant had to be able to meet case on merits and that must include ability to cross-examine on exhibit affidavits. Applicant was able to cross-examine deponents on any affidavit filed in proceeding, including exhibit affidavits.
Ontario (Attorney General) v. $17,700.00 in Canadian Currency (In Rem) (Jul. 3, 2015, Ont. S.C.J., Kershman J., File No. Picton 15-0175) 256 A.C.W.S. (3d) 27.

Criminal Law


Minister did not consider competing factors regarding public safety on transfer application

Applicant was Canadian citizen incarcerated in Ohio. Applicant pleaded guilty and was sentenced to 10 years for attempting enticement of minor to engage in sexual activity. Applicant had moved to United States to pursue relationship with American citizen who was now his ex-wife. Applicant had brother and sister in Canada. Applicant applied for transfer to Canada to serve remainder of sentence. Respondent minister denied applicant’s request for transfer of sentence pursuant to International Transfer of Offenders Act. Minister found that transfer would not contribute to administration of justice, including public safety, in Canada or to applicant’s effective reintegration into community. Applicant applied for judicial review. Application granted. Standard of review was reasonableness. Minister’s decision appeared to rely on community assessment report and did not consider clearly competing factors outlined in memorandum to minister and Correctional Service Canada summary. Minister stated transfer would not contribute to public safety but there was clear evidence to contrary. Minister did not consider contrary position that public safety in Canada might be enhanced by applicant’s transfer. There was no weighing of evidence. Correctional Service Canada summary and memorandum did not contain statement regarding rehabilitation programs available to applicant in United States. There was lack of consideration of competing factors by minister and it was not clear how he arrived at decision and why strong evidence in favour of transfer was rejected. Some of minister’s findings were directly contradictory to what was stated in memorandum and summary. Minister must engage in process of considering and weighing of evidence. Application was remitted to minister for reconsideration.
Tosti v. Canada (Minister of Public Safety and Emergency Preparedness) (Jun. 12, 2015, F.C., Glennys L. McVeigh J., File No. T-2132-13) 256 A.C.W.S. (3d) 104.



Application contesting federal election results untimely

Appellant contested May 2011 federal election results in riding of Guelph, Ont. Respondent brought motion for summary dismissal. Prothonotary’s September 2013 decision dismissed appellant’s application under s. 524 of Canada Elections Act. Appellant could not establish that voter suppression efforts impacted outcome or integrity of election. Application was untimely under s. 527 of act. April 2014 decision dismissed appeal from September 2013 decision. Appeal was untimely. Appellant appealed April 2014 decision. Appeal dismissed. Appellant should have known about activity underlying application by March 29, 2012. Chief electoral officer’s testimony then entered public domain. That appellant did not actually know information because on remote island on that date did not require different result. Application was not commenced until June 26, 2012, beyond 30-day time limit under act.
Klevering v. Canada (Attorney General) (Jun. 23, 2015, F.C.A., C. Michael Ryer J.A., Wyman W. Webb J.A., and Donald J. Rennie J.A., File No. A-232-14) 256 A.C.W.S. (3d) 114.

Constitutional Law


Appellant was not person “charged with an offence” and not entitled to protections under s. 11 of Charter

Section 163.2 of Income Tax Act imposes monetary penalties on every person who makes false statement that could be used by another person for purpose of act. Appellant was assessed substantial penalties under s. 163.2(4) in respect of false statements made by her in donation receipts issued by her on behalf of charity. Minister of National Revenue claimed appellant knew or would reasonably be expected to have known statements could be used by taxpayers to claim unwarranted tax credit. Appellant argued she was person “charged with an offence” because penalty imposed under s. 163.2(4) is criminal. She claimed she was therefore entitled to procedural safeguards provided for in s. 11 of Canadian Charter of Rights and Freedoms. Her appeal of Minister’s assessment to Tax Court of Canada was allowed despite fact she did not raise any Charter issue in her notice of appeal nor did she provide notice of constitutional question to attorneys general as required by s. 19.2 of act. Federal Court of Appeal set aside Tax Court’s decision and restored assessment. Appellant’s appeal dismissed. This court has narrow discretion to address merits of constitutional issue when it receives proper notice of constitutional questions even though issue was not properly raised in courts below. Discretion ought to be exercised in this case. Proceedings under s. 163.2 of act are not criminal in nature and do not lead to imposition of true penal consequences. Appellant was not person “charged with an offence” and not entitled to protections under s. 11 of Charter. Proceedings under s. 163.2 are of administrative nature. Process does not bear traditional hallmarks of criminal proceeding. True penal consequence is imprisonment or fine. Monetary penalty may be true penal consequence when it is, in purpose or effect, punitive. Penalties assessed against appellant, however, reflect objective of deterring conduct of type she engaged in. In signing charitable tax receipts, she chose to rely on her own legal opinion which she knew to be incomplete. Tax Court found her conduct was indicative either of complete disregard of law or of wilful blindness.
Guindon v. R. (Jul. 31, 2015, S.C.C., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., File No. 35519) Decision at 228 A.C.W.S. (3d) 94 was affirmed.  256 A.C.W.S. (3d) 78.

Charter of Rights


Reasons for wanting to stop vehicle were racially motivated and not legitimately connected to highway safety concerns

Police officer claimed that she observed Mercedes vehicle driving erratically. Accused driver, 23-year-old black male, was approached by officers after parking in lot and exiting vehicle. Accused was arrested for careless driving and failing to identify himself and handcuffed to cruiser. During search of vehicle, loaded firearm was found in purse in backseat passenger foot well. Accused was charged with weapons offences. Accused’s sister testified that she owned purse and had been in relationship with drug dealer who carried gun and had borrowed purse. Accused brought application to exclude evidence based on breaches of, inter alia, s. 9 of Charter of Rights and Freedoms. Application granted. Officer’s reason for wanting to stop vehicle was that driver was young black male in area known for gangs, drugs and guns and vehicle was Mercedes. Crown acknowledged no dual purpose to arrest, investigation and search. Highway Traffic Act stop was ruse or pretext to investigate suspected, non-specific criminal activity. Officer stated that when she saw vehicle, she immediately thought it was stolen or involved in illegal activity. Police treated incident as dangerous, explosive situation and not traffic stop. Reasons for wanting to stop vehicle were racially motivated and not legitimately connected to highway safety concerns. No articulable cause for stop. Stop violated s. 9 and accused’s arrest for careless driving unlawful. Arrest for failing to identify also unlawful as accused not given reasonable opportunity to provide identification. In flagrant and unique circumstances, admission of firearm would bring administration of justice into disrepute.
R. v. Smith (Jun. 11, 2015, Ont. S.C.J., J. Wilson J., File No. 12-30000101-0000) 123 W.C.B. (2d) 234.



Notice of constitutional question is not simply technicality

Three accused applied for leave to appeal their convictions of attempt to commit mischief in course of peaceful protest at Frontenac Penitentiary. Trial judge found that accused had attempted to block cattle trucks from leaving institution. Accused received conditional discharge. Basis of accuseds’ application and appeal was that courts below erred in finding that their peaceful protest was not protected expression under s. 2(b) of charter. Application for leave to appeal dismissed. Accused did not serve notice of constitutional question as required by s. 109 of Courts of Justice Act. Charter argument was not made at first instance and in fact accused, who were self-represented, disclaimed charter argument. Although accused were represented on summary conviction appeal, summary conviction appeal judge give little consideration to s. 2(b) argument, concluding that trial judge’s findings of fact were sufficient to conclude that accuseds’ conduct was not protected by charter. Notice of constitutional question is not simply technicality. Jurisprudence confirmed that notice is mandatory: to put government on notice that legislation is being challenged and to give it full opportunity to support its validity and to ensure that court has benefit of full factual record. Court had no jurisdiction to grant relief in absence of notice or in absence of circumstances discussed in Paluska, none of which existed here. Accused conceded that record before court did not permit assessment of charter arguments or to grant charter remedy. In absence of grounds to grant leave on charter arguments, court was not prepared to grant leave on accuseds’ alternative submissions as to trial judge’s failure to apply charter values to defence submissions.
R. v. McCann (Jun. 15, 2015, Ont. C.A., G.R. Strathy C.J.O., G. Pardu J.A., and M.L. Benotto J.A., File No. CA C58917) Leave to appeal from 113 W.C.B. (2d) 345 was refused.  123 W.C.B. (2d) 219.

Constitutional Law


Limit on voting rights of non-resident citizens violates s. 3 of Charter but saved by s. 1

Right to vote is protected by s. 3 of Canadian Charter of Rights and Freedoms. Respondents, Canadian citizens who lived and worked in U.S., not able to vote because they lived outside Canada for more than five years. They claimed provisions of Canada Elections Act denying vote to most citizens who resided outside Canada for more than five years was unconstitutional. Application judge struck down impugned provisions, finding they violated s. 3 of charter. Appeal by Attorney General of Canada allowed. Canada’s political system is based on geographically defined electoral districts. Citizens elect Member of Parliament to serve interests of their community. Electorate submits to laws because it has voice in making them. This is the social contract that gives laws their legitimacy. Permitting non-resident citizens to vote would erode social contract. Attorney General conceded breach of s. 3 of charter. Real issue was whether limit on voting rights of non-resident citizens is reasonable and can be demonstrably justified. To be justified, objective of legislation must be pressing and substantial, means used to further objective must be proportionate i.e. rationally connected to objective and minimally impairing and proportionate in effect. Preserving connection between citizens’ obligations to obey law and right to elect lawmakers, strengthening social contract, is pressing and substantial, promoting faith in political institutions that enhance participation. By strengthening public confidence in laws, the legislation is consistent with principles and values of free and democratic society. Canadian citizens non-resident for five years largely not governed by Canadian legal system. Excluding them from franchise helps to strengthen social contract and enhance legitimacy of laws. Residence of elector provides subjective and objective connection between electorate and lawmakers, providing rational connection between maintenance of social contract in constituency-based system of representation and limit on rights of long-term non-resident Canadians to vote. Duration of absence is reasonable means by which to differentiate between temporary non-residents and longer-term non-residents who voluntarily removed themselves from social contract. Five years falls within reasonable range. Means chosen were minimally impairing. Salutary effects of legislation, solidification of bond between electorate and elected, are outweighed by deleterious effects. Impugned provisions violate s. 3 of charter but are saved by s. 1.
Frank v. Canada (Attorney General) (Jul. 20, 2015, Ont. C.A., G.R. Strathy C.J.O., John Laskin J.A., and D.M. Brown J.A., File No. CA C58876) Decision at 239 A.C.W.S. (3d) 909 was reversed.  255 A.C.W.S. (3d) 109.
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