MLB-Slaw Selected Case Summaries

Here you'll find weekly summaries of selected cases provided to Slaw by Maritime Law Book's National Reporter System.

Jul 15

Rodrigues v. Rodrigues 2013 ABQB 718

Conflict of Laws - Damage Awards - Damages - Injunctions - Libel and Slander - Practice

The plaintiff, a parish priest in Calgary, Alberta, sued for damages for defamation. The defendant, a lawyer in Goa, India, was noted in default.

The Alberta Court of Queen’s Bench awarded the plaintiff $75,000 for general damages and $50,000 for aggravated damages, granted injunctive relief and ordered the defendant to pay solicitor and client costs.

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R. v. Omeasoo (J.I.) 2013 ABPC 328

Criminal Law - Evidence - Police

Two aboriginal offenders (Omeasoo and Okeynan) were charged with minor offences and released from police custody on condition that they abstain from the consumption of alcohol. Each was an alcoholic. Each failed to comply with that condition and was charged with breaching the undertaking (Criminal Code, s. 145(5.1)). In separate summary conviction proceedings, each pled guilty.

The Alberta Provincial Court sentenced Omeasoo to one day of imprisonment. Okeynan was sentenced to pay a fine of $100. “[W]here an aboriginal offender suffering from alcoholism is to be sentenced for the offence described in s. 145(5.1) C.C. the court will look to the prosecution for assistance in determining that offender’s degree of responsibility for the breach. When that information is unavailable or where no attempt is made to meet the requirements of judicial interim release as described in these reasons, a nominal penalty such as a fine of $1 may be imposed hereafter.”

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R. v. Croft (J.C.) 2013 ABQB 640

Civil Rights - Criminal Law - Statutes

The accused were charged with a variety of mainly drug offences. In the police investigation leading to the charges, 12 production orders were issued pursuant to s. 487.012 of the Criminal Code. The orders were addressed to three telephone service providers. Each order required the service provider(s) to produce to a named RCMP officer all incoming and outgoing call details (telephone records) and text messages for cellular phones identified in the order, for a specified period of time. The text messages produced by Telus had been recorded by Telus in the routine operation of the technology. The recording existed prior to the issuance of the production order. Each accused filed and served a Notice of Constitutional Question seeking declarations that s. 487.012 was of no force or effect as being contrary to s. 8 of the Charter. The applications were heard together.

The Alberta Court of Queen’s Bench held that the production orders were invalid. The Court declined to answer the constitutional issue, as the applications could be disposed of by applying the principles of statutory interpretation. “Having concluded that the acquisition of text messages recorded by telephone service providers in their transmission infrastructure in the course of the telephone service provider transmitting the text message from the sender to the receiver, even where the recording was made in the past, is an interception of private communications, and having concluded that, properly interpreted, s. 487.012 does not permit the authorization of interceptions of private communications, I find that the production orders in the case which purported to authorize such interceptions were invalid, and the interceptions of private communications effected pursuant to them, were, in effect, unauthorized.”

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Jun 25

R. v. Spencer (M.D.) 2014 SCC 43; 2014 CSC 43

Civil Rights - Criminal Law - Trade Regulation

The accused was charged with possession of child pornography and making available child pornography. The accused brought an application, alleging several violations of his rights under the Charter.

The Saskatchewan Court of Queen’s Bench, in a decision reported at 361 Sask.R. 1, dismissed the application. The accused was found guilty of possession of child pornography and not guilty of making available child pornography. The accused appealed the conviction. The Crown appealed the acquittal.

The Saskatchewan Court of Appeal, in a decision reported at 377 Sask.R. 280; 528 W.A.C. 280, dismissed the accused’s appeal, allowed the Crown’s appeal and ordered a new trial. The accused appealed.

The Supreme Court of Canada dismissed the appeal, affirmed the conviction on the possession count and upheld the Court of Appeal’s order for a new trial on the making available count.

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R. v. Jacobs (P.G.) 2014 ABCA 172

Courts - Civil Rights - Criminal Law - Evidence - Practice

The accused was convicted of possession of cocaine for the purpose of trafficking (Controlled Drugs and Substances Act, s. 5(2)) and two counts of failing to comply with conditions of release (Criminal Code, s. 145(3)). The accused appealed. At issue was whether the Charter applied to the search which led to the discovery of cocaine in her possession and whether the trial judge erred in the use and admission of expert evidence.

The Alberta Court of Appeal allowed the appeal, set aside the convictions and ordered a new trial. The trial judge correctly concluded that the Charter did not apply. However, the trial judge erred in the admission and use of expert evidence.

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France (Republic) v. Diab 2014 ONCA 374

Extradition - Statutes

Diab was wanted in France for his alleged role in a 1980 bombing outside a Paris synagogue. France sought to have Diab extradited.

The Ontario Superior Court (extradition judge), in a decision reported [2011] O.T.C. Uned. 337, committed Diab to await surrender. Thereafter, the Minister of Justice ordered Diab’s surrender to French authorities. Diab appealed from his committal and sought judicial review of the Minister’s decision to surrender.

The Ontario Court of Appeal dismissed the appeal and the application for judicial review.

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Jun 19

R. v. Anderson (F.) 2014 SCC 41

Civil Rights - Courts - Criminal Law

Anderson was charged with driving with a blood-alcohol content over .08. He was served with a Notice of the Crown’s intention to seek a greater punishment by reason of previous convictions (Criminal Code, s. 727(1)). As this was Anderson’s fifth impaired driving-related conviction, tendering the Notice meant that he would be subject to a mandatory minimum sentence of not less than 120 days’ imprisonment under s. 255(1)(a)(iii) of the Code. Anderson filed a Charter application in which he argued that ss. 255(1) and 727(1) of the Code violated s. 7 of the Charter because “the combined effect of the [provisions] is to transfer what is a judicial function to the prosecutor, namely, the setting of the floor or minimum sentence in a given case”. He also argued that the statutory scheme violated s. 15(1) of the Charter because it deprived an Aboriginal person of the opportunity to argue for a non-custodial sentence in an appropriate case.

The Newfoundland and Labrador Provincial Court accepted Anderson’s Charter arguments and concluded that the infringements of ss. 7 and 15(1) were not saved by s. 1 of the Charter. In order to ensure compliance with s. 7 of the Charter, the trial judge held that the Crown had to provide justification for relying on the Notice in all cases, including those involving non-Aboriginal offenders. As for the violation of s. 15(1), the trial judge declared the statutory scheme to be of no force and effect as it applied to Aboriginal offenders. Having determined that he was not bound by the minimums set out in s. 255(1) of the Code, the trial judge sentenced Anderson to a 90-day intermittent sentence followed by two years’ probation. A five-year driving prohibition was also imposed. The Crown appealed.

The Newfoundland and Labrador Court of Appeal, in a decision reported at (2013), 331 Nfld. & P.E.I.R. 308; 1027 A.P.R. 308, dismissed the appeal. All members of the court held that where the Crown tendered the Notice at the sentencing hearing without considering the accused’s Aboriginal status, this rendered the sentencing hearing fundamentally unfair, leading to a s. 7 Charter breach. According to the court, there would be no breach of s. 7 if the Crown’s policy statement regarding the decision to tender the Notice included a specific direction to consider the offender’s Aboriginal status. The absence of such a direction, and the lack of explanation on the part of the Crown for its decision to tender the Notice in this case, led the court to conclude that s. 7 of the Charter had been breached. The court split on how the Crown’s decision to tender the Notice should be characterized. Welsh, J.A., considered it to be a matter of “core” prosecutorial discretion. Green, C.J.N.L., and Rowe, J.A., maintained that it was “outside a core prosecutorial function”. However, that difference of opinion did not affect the result. The Crown appealed.

The Supreme Court of Canada allowed the appeal. Crown prosecutors were not constitutionally required to consider the Aboriginal status of an accused when deciding whether or not to seek a mandatory minimum sentence for impaired driving. There was no principle of fundamental justice that supported the existence of such a constitutional obligation. Absent such an obligation, the prosecutor’s decision was a matter of prosecutorial discretion which was reviewable by the courts only for abuse of process. In the complete absence of any evidence to support it, Anderson’s abuse of process argument had to fail. The order of the Newfoundland and Labrador Court of Appeal was set aside and a term of imprisonment of 120 days was substituted, with service of the remainder of the sentence stayed in accordance with the concession of the Crown. The court noted that the s. 15(1) Charter challenge to the constitutionality of the statutory scheme was not pursued before it and its reasons should not be taken as endorsing the trial judge’s analysis or conclusion with respect to that issue.

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Jun 10

R. v. Appulonappa (F.A.) et al. 2014 BCCA 163

Aliens - Civil Rights - Criminal Law - Statutes 
In October 2009, Canadian authorities intercepted the MV Ocean Lady off the west coast of Vancouver Island. On board were 76 Sri Lankan Tamil asylum-seekers, none of whom had proper documentation to enter Canada. The four respondents were Sri Lankan nationals from the ship. The Crown alleged that they organized the voyage, and were the captain and chief crew members of the ship. It charged them with the offence of “human smuggling” under s. 117 of the Immigration and Refugee Protection Act. The respondents applied before the trial judge for a declaration that s. 117 was overbroad and thus infringed s. 7 of the Charter. They argued that the objective of the provision was to deter and penalize only those who engaged in international human smuggling for material gain, but the offence was so broadly worded that it criminalized the actions of individuals such as humanitarian workers or family members who, for altruistic reasons, assisted refugee claimants in entering Canada illegally. The Crown responded that the scope of s. 117 was appropriate and consistent with Canada’s objective to fulfill its international obligation to combat human smuggling. It maintained that the breadth of the provision created desirable flexibility, and the requirement under s. 117(4) that the Attorney General consent to proceedings under s. 117 ensured that family members and humanitarian workers would not be charged as human smugglers.
The British Columbia Supreme Court, in a decision reported at [2013] B.C.T.C. Uned. 31, accepted the Crown’s argument that the objective of s. 117 was to stop human smuggling and protect its victims in accordance with Canada’s international obligations. However, the trial judge found that the offence cast too wide a net. The judge concluded that the provision was overbroad and infringed s. 7 of the Charter and that it could not be saved by s. 1 of the Charter. He accordingly declared s. 117 to be of no force or effect. In later reasons, the judge quashed the indictments against the respondents (see [2013] B.C.T.C. Uned. 198). The Crown appealed, seeking to set aside the declaration that s. 117 was unconstitutional. The Crown maintained that the trial judge erred in accepting the Crown’s submissions on the objective of s. 117. The Crown contended that the judge should instead have found that the overarching aim of s. 117 was to prevent individuals from arranging the unlawful entry of others into Canada, thereby securing the secondary goals of enforcing Canadian sovereignty; maintaining the integrity of Canada’s immigration and refugee regime; protecting the health, safety, and security of Canadians; and promoting international justice and security. The Crown said the trial judge was led into error because he misapprehended the effect of Canada’s international obligations, and that in turn tainted his approach to the hypothetical scenarios presented by the respondents to demonstrate overbreadth.
The British Columbia Court of Appeal allowed the appeal. The court permitted the Crown to advance its new argument and, having considered it, determined that s. 117 was not unconstitutionally overbroad. The court did not accept the respondents’ and intervenors’ submissions that Parliament intended to exempt humanitarians or family members from s. 117. The court was satisfied that, in enacting this provision, Parliament intended to create a broad offence with no exceptions, directed to concerns of border control and the particular issue of deterring and penalizing those who assisted others in entering Canada illegally. While Parliament recognized there might be difficult and sensitive cases in which prosecution under s. 117 would be unpalatable, it found that those defied comprehensive definition and elected to enact centralized charge approval by the Attorney General as a means to ensure all circumstances, including motive, would be assessed before charges were laid under s. 117. The legislative objective of s. 117 was aligned with its scope. Both were broadly based, and the conduct caught by the provision was rationally connected to its purpose. Section 117 was therefore not unconstitutionally overbroad. The court set aside the order declaring s. 117 to be inconsistent with s. 7 of the Charter and of no force or effect. The court set aside the acquittals and directed a new trial.

Boucher v. Wal-Mart Canada Corp. et al. 2014 ONCA 419

Damage Awards - Damages - Master and Servant - Torts

Boucher sued Wal-Mart and its employee, Pinnock, for constructive dismissal and for damages.
The Ontario Superior Court, sitting with a jury, found that Boucher had been constructively dismissed and awarded her damages equivalent to 20 weeks salary, as specified in her employment contract. The jury also awarded her damages of $1.2 million against Wal-Mart, ($200,000 in aggravated damages for the manner in which she was dismissed, and $1 million in punitive damages). The jury also awarded damages of $250,000 against Pinnock ($100,000 for intentional infliction of mental suffering, and $150,000 in punitive damages). On appeal, Pinnock and Wal-Mart challenged both their liability for and the amount of damages for intentional infliction of mental suffering, aggravated damages and punitive damages. Boucher cross-appealed against Wal-Mart, asking for $726,601 to compensate her for her loss of income until retirement.
The Ontario Court of Appeal, Hoy, A.C.J.O. dissenting in part, upheld the award of $100,000 against Pinnock for intentional infliction of mental suffering, and the aggravated damages award of $200,000 against Wal-Mart. The Court allowed the appeals on punitive damages and reduced the award against Pinnock from $150,000 to $10,000 and the award
against Wal-Mart from $1 million to $100,000. “Especially in the light of the significant compensatory awards against each appellant, those amounts are all that is rationally required to punish Pinnock and Wal-Mart and to denounce and deter their conduct.” The Court dismissed Boucher’s cross-appeal. The trial judge correctly ruled that as Boucher had not suffered a loss of earning capacity, her loss of future income claim was limited to the amount provided for in her employment contract. In dissent, Hoy, A.C.J.O., would have reduced the aggravated damages awarded against Wal-Mart from $200,000 to $25,000.

Fasken Martineau DuMoulin LLP v. Human Rights Tribunal (B.C.) et al. 2014 SCC 39

Civil Rights - Partnership
McCormick was a lawyer and a partner in the Vancouver office of the Fasken Martineau DuMoulin LLP, an international law firm operating as an extra-provincial limited liability partnership registered under the Partnership Act. In December 2009, McCormick filed a complaint with the Human Rights Tribunal (B.C.) alleging that Fasken discriminated against him by requiring that he retire as an equity partner at the end of the year in which he turned 65, contrary to s. 13 of the Human Rights Code (B.C.) which prohibited discrimination in employment on the ground of age. Fasken applied to dismiss the complaint under ss. 27(1)(a) and (c) of the Code on the grounds that the Tribunal did not have jurisdiction over the complaint
and there was no reasonable prospect that it would succeed. The Tribunal dismissed the application, finding that it had jurisdiction over the complaint on the basis that McCormick was, for the purpose of the Code, employed by Fasken. Fasken applied for judicial review.
The British Columbia Supreme Court, in a decision reported at [2011] B.C.T.C. Uned. 713, dismissed the application. Fasken appealed.
The British Columbia Court of Appeal, in a decision reported at 325 B.C.A.C. 216; 553 W.A.C. 216, allowed the appeal. McCormick appealed.
The Supreme Court of Canada dismissed the appeal.

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