Here you'll find weekly summaries of selected cases provided to Slaw by Maritime Law Book's National Reporter System.
Criminal Law - Murder - Provocation - Evidence and proof
The accused was convicted of second degree murder. He appealed.
The Quebec Court of Appeal, Bich, J.A., dissenting, dismissed his appeal. The accused appealed as of right.
The Supreme Court of Canada, LeBel and Wagner, JJ., dissenting, allowed the appeal and ordered a new trial.
Indians, Inuit and Metis - Personal or legal rights - General - Wills and estates
Pruden owned two quarter sections of land (farm quarter and home quarter) on the Kikino Métis Settlement. He died without leaving estate instructions under s. 7.6 of the Métis Settlements General Council Land Policy. Since Pruden’s wishes were not known, and he did not have a spouse, his estate stood to be distributed in accordance with any agreement of his heirs, i.e., his seven children. The Council attempted to arrange a meeting of the potential heirs, or a mediation, in order to ascertain the wishes of the potential heirs, but those efforts were unsuccessful. The Council directed a distribution. Three heirs appealed to the Métis Settlements Appeal Tribunal. The Appeal Tribunal found that by the time the dispute reached it, there was a “substantial agreement” among the beneficiaries, which invoked s. 7.13(1)(d) of the Land Policy, because four out of six heirs had now agreed on a solution. While the Land Policy then dictated that the estate should be distributed in accordance with the “substantial agreement”, the Appeal Tribunal concluded that the proposed distribution was impractical. The Appeal Tribunal concluded that the estate should be distributed based on the “principles underlying the agreement” and proposed its own distribution. The Council appealed.
The Alberta Court of Queen’s Bench allowed the appeal.
Crown - Crown immunity - Exceptions - Benefit/burden or waiver exception
Lantheus Medical Imaging Inc., an American pharmaceutical company, used medical isotopes produced by Atomic Energy of Canada Ltd.’s (AECL) nuclear reactor at Chalk River in the manufacture of its products. Lantheus suffered losses estimated at more than $70 million as a result of the extended closure of AECL’s reactor commencing in May of 2009. Lantheus sued its insurer for indemnification (US action). Lantheus sought information from AECL through a request under the Access to Information Act. Shortly after it filed that request, it obtained a Letter of Request (LoR) from the United States District Court (US court). The LoR sought the assistance of the Ontario courts in securing documents and viva voce testimony from AECL for use at the trial of the US action. Lantheus applied, under s. 60 of the Ontario Evidence Act (OEA), seeking an order giving effect in Ontario to the LoR. An application judge dismissed the application. Lantheus appealed
The Ontario Court of Appeal allowed the appeal and issued an order enforcing the LoR.
Courts - Criminal Law - Indians, Inuit and Metis - Practice
The plaintiff held a provincial permit to conduct logging operations on Aboriginal (Fort Nelson First Nation) land. That land included Behn family territory. The plaintiff sued the Behns and other members of the Fort Nelson First Nation for damages for allegedly blockading access to the logging lands. The Behns filed a statement of defence challenging the validity of the plaintiff’s permit on the basis that the instruments the plaintiff said gave it logging and road usage rights: (1) gave no such rights because the Province failed to consult in a meaningful way with the Fort Nelson First Nation; and (2) interfered with Treaty 8 rights and were of no force and effect. The plaintiff moved to strike paragraphs of the statement of defence.
The British Columbia Supreme Court, in a decision reported at [2010] B.C.T.C. Uned. 506, allowed the motion. He concluded that: (1) individual members of the Fort Nelson First Nation did not have standing to advance the legal positions set out in those paragraphs because the rights asserted therein were collective rights of the Aboriginal community; (2) the challenge to the instruments was an impermissible collateral attack on those instruments and should have been pursued through administrative law means; and (3) the constitutional arguments of federal exclusivity could not succeed in the circumstances pleaded and so could not fatally undercut the instruments. The Behns applied for directions as to whether they needed leave to appeal the decision.
The British Columbia Court of Appeal, per Frankel, J.A., ruled that leave was not needed where the order at first instance was a final order. See 296 B.C.A.C. 103; 503 W.A.C. 103. The Behns appealed. At the commencement of the hearing two applications were made to adduce fresh evidence, one by the plaintiff and the other by the Crown. The Behns opposed the applications, and alternatively sought to introduce fresh evidence of their own.
The British Columbia Court of Appeal, in a decision reported at 309 B.C.A.C. 15; 523 W.A.C. 15, dismissed the applications to adduce fresh evidence. The court also dismissed the appeal. The court agreed with the motions judge on the first two issues. The court declined to address the constitutional issue (interjurisdictional immunity) where the vital facts necessary to decide the issue were missing. The Behns appealed.
The Supreme Court of Canada dismissed the appeal with costs to the plaintiff.
Courts - Criminal Law - Judges - Disqualification
Ying Huang was tried as a co-conspirator, together with John Huang. The charges against John arose in connection with his role as a real estate agent for the purchasers of properties that were used for marijuana grow operations. The Crown maintained that John had represented Ying on the purchase of one of the properties. Like John, Ying was convicted of conspiracy to produce marijuana, production of marijuana and possession of marijuana for the purposes of trafficking. She was also convicted of several counts related to utilities theft. Both appealed from the convictions, on the principal ground that the trial judge’s conduct gave rise to a reasonable apprehension of bias, resulting in a miscarriage of justice.
The Ontario Court of Appeal allowed the appeals and ordered a new trial before a different trial judge. The trial judge’s impugned comments gave rise to a reasonable apprehension of bias that fatally compromised trial fairness. It followed that there was a miscarriage of justice.
Courts - Criminal Law - Customs - Offences and penalties
Docherty failed to report CDN $335 and US $9,880 to an agent of the Canada Border Services Agency (CBSA). When CBSA applied what it considered to be the appropriate exchange rate, the US funds were worth $9,901.74 CDN, putting Docherty over the $10,000 threshold. The funds were ultimately seized as suspected proceeds of crime. Docherty requested a ministerial review. The Minister’s delegate determined that there had been a contravention of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, and confirmed the forfeiture. Docherty applied for judicial review.
The Federal Court, in a decision reported at 413 F.T.R. 11, dismissed the application. Docherty appealed.
The Federal Court of Appeal dismissed the appeal. Docherty’s explanations were unverifiable and, as such, amounted to no explanation at all. The Federal Court was entitled to find that the Minister’s delegate’s decision was reasonable.
Criminal Law - Young offenders - Decisions - Murder
The accused, a young person, pled guilty to first degree murder for killing his abusive father following an argument. He received the maximum sentence of 10 years (less some of the time that he spent in pre-sentence custody) and was subject to an intensive rehabilitative custody and supervision order under the Youth Criminal Justice Act. The accused appealed the sentence.
The Manitoba Court of Appeal dismissed the appeal.
Editor’s Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book’s editorial policy or otherwise.
Civil Rights - Courts - Criminal Law - Evidence - Police
Oraha was shot multiple times and killed in a parking lot near his car. Forensic evidence indicated that four different firearms were used. No murder weapons were found. It was agreed at trial that the circumstances of Oraha’s death were planned and deliberate. The Crown’s theory was that eight individuals, four of whom were shooters, were involved in the murder. The Crown alleged that Welsh was one of the four shooters, that Pinnock planned the murder with Welsh and acted as a lookout, and that Robinson delivered a gun to Welsh and acted as a lookout and getaway driver. The other alleged shooters and participants in the murder were not identified. The motive was alleged to be family revenge for a murder a month earlier. Welsh, Pinnock and Robinson were convicted of first degree murder. The accused appealed arguing that: (1) incriminating statements made by Robinson and Pinnock to an undercover police officer who had posed as an Obeah spiritual advisor (the Obeah statements) should not have been admitted because of Charter violations or because the police conduct amounted to a “dirty trick”; (2) the fairness of the trial was tainted by an in camera proceeding conducted by the trial judge, in which the trial judge met privately with Crown counsel to discuss an issue of privilege arising from the Crown’s interview of a Crown witness (Brown) on the eve of trial; (3) the trial judge erred by refusing to sever Welsh’s trial; and (4) the trial judge erred by allowing the Crown to advance in closing submissions to the jury the speculative proposition that Pinnock had “called out the shooters” and therefore was involved in planning the murder.
The Ontario Court of Appeal dismissed the appeals. As to the first ground, the trial judge did not err in admitting the Obeah statements. The Obeahman operation did not violate the accused’s rights to freedom of religion (Charter, s. 2(a)) or equality (s. 15), and even if it did, the evidence would have been admitted under s. 24(2). The Obeah statements were not protected by common law privilege. Further, the Obeahman operation did not constitute a “dirty trick” and did not breach the accused’s s. 7 rights. As to the second ground (trial fairness), notwithstanding that the trial judge proceeded with certain matters in the accused’s absence contrary to s. 650(1) of the Criminal Code, this was a case where the curative provision in s. 686(1)(b)(iv) could be applied (i.e., the appeal could be dismissed notwithstanding any procedural irregularity at trial where the accused suffered no prejudice). As to grounds three and four, the trial judge made no error.
Editor’s Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book’s editorial policy or otherwise.
Civil Rights - Criminal Law - Statutes
The accused was charged under s. 243 of the Criminal Code with concealing the dead body of a child. Under the definition of the offence, it had always been immaterial whether the child died before, during or after birth.
The Ontario Superior Court held that the words “died before … birth” in s. 243 of the Code were unconstitutionally vague. The court severed “before” from the section, leaving it to read in its material part “whether the child died during or after birth”. The prosecutor acknowledged that he could not establish either the cause or the time of death. Thus he offered no evidence in support of the allegation in the indictment. The court acquitted the accused. The Crown appealed.
The Ontario Court of Appeal, in a decision reported at 271 O.A.C. 177, allowed the appeal and ordered a new trial. The court held that the trial judge erred in holding in concluding that the “before birth” reference was unconstitutionally vague. The accused appealed.
The Supreme Court of Canada dismissed the appeal.
Civil Rights - Constitutional Law - Trademarks, Names and Designs
The Registrar of Trademarks gave public notice that the College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia (College) had adopted and used 16 official marks (Trade-marks Act, s. 9(1)(n)(iii)). The Council of Natural Medicine College of Canada (Council), applied for judicial review, seeking to set aside the Registrar’s decision.
The Federal Court dismissed the application. The court held that the Registrar committed no reviewable error. The Registrar correctly determined, consistent with the governing criteria, that the College was a public authority that had adopted and used the official marks. The court rejected an argument by the Council that s. 9(1)(n)(iii) constitutionally overreached federal jurisdiction (i.e., that s. 9(1)(n)(iii) was beyond the legislative competence of Parliament in its application to the medical arts and health professions, matters within provincial jurisdiction). The court also rejected arguments that s. 9(1)(n)(iii) constituted an unjustifiable restriction on freedom of expression (Charter, s. 2(b)).
