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Police entry was not unlawful

Neighbour of male accused heard him threaten to kill female and called 9-1-1. Police arrived and woman refused to allow them to enter. Police were about to break open door when woman appeared at door and she stepped outside to speak to them. Police entered home without permission and observed marijuana and other drugs and they also found accused. Trial judge decided that police entry was unlawful, he excluded seized drugs as evidence and acquitted accused. Crown appealed acquittal. Appeal allowed. Police acted within law when they entered premises as they did. Judge erred and new trial was necessary.
R. v. Lowes (June 22, 2016, Ont. C.A., Doherty J.A., K. Feldman J.A., and D.M. Brown J.A., CA C57703) 131 W.C.B. (2d) 449.

Charter of Rights

Enforcement of rights

Police were negligent in not waiting to obtain warrant before search

Police officers suspected that accused was casing gas stations for robbery and wanted to detain him for investigative purposes. When police identified themselves to accused he ran away. Police officer searched car accused left behind and found handgun and Taser. Accused was charged with several firearms offences. Trial judge found that officers had reasonable grounds to detain accused and reasonable grounds to conduct search of car. Trial judge also accepted that accused had abandoned his vehicle within meaning of s. 221(1) of Highway Traffic Act (Ont.) (“HTA”) and that police therefore had authority to conduct inventory search of vehicle. Trial judge found that in event he was wrong about constitutionality of search that gun and Taser should nevertheless not be excluded under s. 24(2) of Canadian Charter of Rights and Freedoms. Accused was convicted. Accused appealed. Appeal allowed; accused acquitted. Trial judge’s s. 24(2) analysis was flawed and not entitled to deference. Admission of evidence would bring administration of justice into disrepute. There was no evidence of wilful misconduct on part of police officers, but they were negligent in not waiting to obtain warrant before beginning search. Police conduct could not be categorized as inadvertent and it fell closer to more serious end of spectrum. There was no common law authority for search, nor any basis for finding vehicle to have been abandoned within meaning of s. 222(1) of HTA. Taser and handgun were reliable and objective pieces of evidence and Crown’s case could not succeed if they were excluded.
R. v. Dunkley (Aug. 4, 2016, Ont. C.A., David Watt J.A., P. Lauwers J.A., and C.W. Hourigan J.A., CA C59524) Decision at 111 W.C.B. (2d) 822 was reversed. 131 W.C.B. (2d) 471.

Constitutional Law

Charter of Rights

There was no evidence that accused was denied right to counsel

Police officer stopped accused as part of stop check program, smelled beverage alcohol, and noted that his eyes were glossy. Accused failed roadside screening test, was arrested, and was informed of his right to counsel and availability of legal aid. He declined to call lawyer but said he needed to go to bathroom. Accused was transported to police station, where he was allowed to go to bathroom and then provided breath samples that showed he was over legal limit. Trial judge held that accused’s rights under s. 10(b) of Canadian Charter of Rights and Freedoms were not infringed and admitted certificate of analysis. Accused was convicted of driving with excessive alcohol and appealed on basis that his right to counsel under s. 10(b) of Charter was breached. Appeal dismissed. Accused was convicted of driving with excessive alcohol and appealed on basis that his right to counsel under s. 10(b) of Charter was breached. Trial judge did not err in law in finding that accused’s right to counsel under s. 10(b) was not breached. Officer clearly gave accused his right to counsel, explained what that meant, and offered to provide list of lawyers. Accused did not indicate that he was under impression he had to choose between bathroom or exercising his right to counsel, or that he was so overcome by need to urinate that he could not focus his mind on right to counsel. Accused gave no indication that he did not understand process, and at no time indicated any interest in calling lawyer. Trial judge’s findings that accused clearly declined to take steps to engage his right to counsel were supported by evidence. There was no evidence that accused was denied right to counsel or that he took steps to invoke his Charter rights. While accused had pressing need to urinate, there was no evidence that his attention or ability to understand was in any way compromised. Evidence was reasonably capable of supporting trial judge’s conclusion.
R. v. DaFonte (July 5, 2016, Ont. C.A., Doherty J.A., K. Feldman J.A., and David Brown J.A., CA C59811) Decision at 247 A.C.W.S. (3d) 811 was reversed. 269 A.C.W.S. (3d) 55.



Motion judge’s determination that limitation period had not run was not final order

Plaintiff brought action for payment for equipment it supplied to defendant. Defendant’s motion for summary judgment on basis that equipment was returned to plaintiff was dismissed. Defendant brought motion for leave to appeal and sought permission for late filing of notice of appeal. Motion dismissed. Motion judge’s determination that limitation period had not run was not binding and was not final order. Were court to grant leave to file notice of appeal, it would not have jurisdiction to entertain appeal.
Vanden Bussche Irrigation & Equipment Ltd. v. Kejay Investments Inc. (Aug. 4, 2016, Ont. C.A., K.M. Weiler J.A., In Chambers, CA M46741) 269 A.C.W.S. (3d) 10.

Civil Procedure


Applicant did not demonstrate that introduction of new evidence was in interest of justice

Corporate respondent entered into set of agreements to develop software with X. Applicant entered into series of employment relationships with corporate respondent and subsequently he and his company entered into contractual relationships with corporate respondent. Applicant claimed that he and X were joint authors and joint owners of copyright in software. Applicant claimed declarations and remedies related to alleged copyright infringement and infringement of moral rights. Application dismissed. Applicant sought leave to file additional affidavit in support of his application. Motion dismissed. While it wasn’t clear that all evidence was available to applicant when he swore his main affidavit, it was available when he filed his record and his requisition for hearing. There was no basis for court to be admitting this evidence on day of hearing. Applicant did not demonstrate that introduction of new evidence was in interest of justice and would assist court. Respondents would be prejudiced by admission of evidence.
Andrews v. McHale (June 3, 2016, F.C., Richard F. Southcott J., T-832-15) 269 A.C.W.S. (3d) 152.


Disqualification of arbitrator

Canada Labour Code was silent on issue of withdrawal of complaint

Employee filed complaint under Canada Labour Code alleging he was dismissed without cause from his employment as community support worker development coordinator with employer. Seven days of hearings took place over span of one year. By August 2014, adjudicator had all material necessary to render decision. Employer contacted adjudicator in May 2015 and on July 13, 2015 seeking decision but none was forthcoming. Adjudicator responded, noting that determination on merits was made some time ago, but that his reasons needed to be amplified given recent decision of Federal Court of Appeal. On July 14, 2015 employee withdrew complaint, intending to pursue civil action. Employer opposed withdrawal of complaint given that determination had already been made on merits. Adjudicator advised that he was functus officio and did not have jurisdiction to determine if employee could withdraw complaint. Employer brought application challenging adjudicator’s decision to accept employee’s withdrawal of his complaint. Application dismissed. Code was silent on issue of withdrawal of complaint, and did not explicitly convey whether or not adjudicator’s broad discretion to control its procedure conferred on adjudicator power to disallow unilateral withdrawal of complaint. In absence of direction on issue of withdrawal, employee was entitled to withdraw complaint by providing proper notice to adjudicator and ensuring affected parties were notified. Once employee had done so, adjudicator’s jurisdiction to act was exhausted. If employee pursued civil action, employer could raise forum shopping and issue estoppel with court.
Inter Tribal Health Authority v. Sinclair (June 1, 2016, F.C., Michael D. Manson J., T-1609-15) 269 A.C.W.S. (3d) 82.

Environmental Law


Canada did not fulfill obligation to consult aboriginal peoples to reasonable satisfaction

Applicants were several aboriginal bands and others who opposed pipeline development Joint Review Panel found that project was in the public interest and recommended that it go forward subject to 209 conditions. Two certificates of public convenience and necessity were issued. Several appeals and applications for judicial review regarding various aspects of proceedings were brought, and were consolidated into single application. Application granted. Order in council was reasonable and defensible, however, Canada did not fulfill its obligation to consult aboriginal peoples to standard of reasonable satisfaction. Good faith was shown and proper framework was put in place for consultation but consultation aspect of process fell short. Order in council was quashed as well as certificates that were issued under them, and matter remitted. Governor in council’s determination was reasonable in light of administrative law principles. Government did not prejudge result of process, and bias on part of governor in council was not shown. Framework of consultation process was not unilaterally imposed on first nations. Level of funding provided constrained participation in joint review process, but there was no evidence that funding available was so inadequate it made process unreasonable. Canada fell well short of its deep duty to make reasonable efforts to inform and consult. Canada assessed strength of claim of certain bands, but acted improperly in failing to share assessment with affected first nations. Not all items of interest were discussed in consultation process. During consultation meetings, aboriginal groups were repeatedly told that Canada’s representatives were working on assumption that governor in council needed to make its decision by particular date, and were tasked with information gathering, and were not authorized to make decisions. Requirement to give adequate reasons was not shown to be met.
Gitxaala Nation v. R. (June 23, 2016, F.C.A., Eleanor R. Dawson J.A., David Stratas J.A., and C. Michael Ryer J.A., A-437-14, A-56-14, A-59-14, A-63-14, A-64-14, A-67-14, A-439-14, A-440-14, A-442-14, A-443-14, A-445-14, A-446-14, A-447-14, A-448-14, A-514-14, A-517-14, A-520-14, A-522-14) 269 A.C.W.S. (3d) 85.



Canadian Security Intelligence Service Act provided that identity of human sources be confidential

Respondents brought action claiming damages arising from alleged breach of rights and freedoms protected under Canadian Charter of Rights and Freedoms. Attorney General of Canada brought applications pursuant to s. 38 of Canada Evidence Act (CEA). Amended s. 18.1 of Canadian Security Intelligence Service Act (CSISA) provided that identity of human sources, or information that would disclose identity of human sources, was to be kept confidential. Federal Court judge concluded that application of s. 18.1 of CSISA in circumstances of case would be invalid. Attorney General of Canada appealed. Appeal allowed. Section 18.1 of CSISA was not intended to have retroactive effect. Section 18.1 was not merely procedural rule of evidence but it created substantive right in favour of human sources based on status of individuals and special relationship with Canadian Security Intelligence Service, and it trumped public interest in disclosure of all evidence by taking it out of Federal Court jurisdiction under s. 38 of CEA. Once individual met criteria set out in s. 2 of CSISA he or she was source and kept status on ongoing basis, and presumption against retrospective application of statutory provisions under review was not in play. Section 18.1 of CSISA deprived respondents of benefit of more liberal versions of privilege set out in s. 38 of CEA. Legislature intended to protect disclosure of information described in s. 18.1 of CSISA in all proceedings. Presumption against interference with vested rights was rebutted, and s. 18.1 of CSISA was applicable to s. 38 proceeding.
Canada (Attorney General) v. Almalki (July 8, 2016, F.C.A., Johanne Gauthier J.A., A.F. Scott J.A., and Yves de Montigny J.A., A-520-15) Decision at 261 A.C.W.S. (3d) 102 was reversed. 269 A.C.W.S. (3d) 71.



Self-defence only available if actions were reasonable in circumstances

Two accused, boyfriend and girlfriend, had their appeals heard together. Boyfriend was convicted of robbery, possession of weapon for purpose dangerous to public peace and three counts of breaching probation orders in connection with his involvement in drug transaction (aggravated assault charge stayed via Kienapple). Boyfriend testified that when complainant leaned into car, stabbed his girlfriend and tried to engage handbrake, he wrestled knife away and stabbed complainant in effort to defend his girlfriend. Trial judge rejected this evidence for several reasons, all of which were available to him on evidence. Further, trial judge made findings of fact in relation to essential elements of aggravated assault and found that boyfriend unabashedly admitted to stabbing complainant eight times and also found that complainant was wounded as result. Appeal dismissed; under s. 686(3)(b) of Criminal Code, court had power to substitute verdict that should have been found by trial judge, so court quashed conviction for robbery, lifted stay and entered conviction on aggravated assault charge. Defence is only available if actions of accused were reasonable in circumstances; force could not be excessive. Accused submitted that trial judge erred in concluding that he had time to extricate himself, and get out of car. Even if trial judge erred factually with respect to this issue, his ultimate finding was based on proportionality. Trial judge concluded that, even if accused’s evidence was accepted in its entirety, once he wrestled knife from complainant, stabbing him eight times was disproportionate to threat he posed. Accused’s conduct went far beyond what could be considered reasonable or necessary. No error was seen in trial judge’s consideration of this defence.
R. v. Breton (June 1, 2016, Ont. C.A., Janet Simmons J.A., K. van Rensburg J.A., and M.L. Benotto J.A., CA C58374) Decision at 109 W.C.B. (2d) 88 was reversed. 131 W.C.B. (2d) 395.


Time element

Demand for alcohol screening device sample was made forthwith

Accused was convicted of driving “over 80.” Accused applied for leave to appeal summary conviction appeal decision upholding his conviction, arguing that trial judge erred in finding that arresting officer’s demand that accused provide sample of breath into alcohol screening device (“ASD”) was made “forthwith”, as required by s. 254(2)(b) of Criminal Code and submitted that 13-minute delay in obtaining ASD coupled with his roadside detention triggered his right to be provided with s. 10(b) caution. Leave to appeal denied. Principles of law relating to whether ASD sample has been taken “forthwith” are well established and do not warrant any restatement. Application of these principles to facts of this case had no significance to administration of justice beyond four corners of this case. No error was found in summary conviction appeal judge’s conclusion that trial judge considered and applied relevant factors in determining that there was no realistic opportunity for accused to consult with counsel during 13-minute delay. Evidence supported arresting officer’s assumption that nearby officer would deliver ASD shortly.
R. v. Rienguette (June 8, 2016, Ont. C.A., G.R. Strathy C.J.O., S.E. Pepall J.A., and C.W. Hourigan J.A., CA C61121) Leave to appeal decision at 124 W.C.B. (2d) 379 was refused. 131 W.C.B. (2d) 325.

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