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Case Law is a sample selection from the weekly summaries of notable unreported civil and criminal court decisions published in Law Times newspaper.

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Evidence

Examination of witnesses

Previous statements

Type of evidence placed improperly before jury was particularly pernicious

Accused was charged with several offences against complainant wife including assault, sexual assault, and assault with weapon. Before trial, accused applied to cross-examine wife on her previous sexual activity, including video of parties engaging in anal sex and texts between wife and person with whom she was having affair during marriage. Trial judge admitted cross examination on texts and video transcript. Defence counsel completed cross-examination of wife on Friday afternoon. Crown counsel advised he had no questions on re-direct and trial resumed on following Tuesday. At commencement of Tuesday hearing, Crown sought to have complainant recalled so she could testify as to what she told others to rebut defence’s suggestion of recent fabrication. Accused was acquitted of all charges. Crown’s appeal, in part on basis that trial judge erred in refusing to permit Crown to lead evidence to rebut allegation of recent fabrication that arose during cross-examination of wife, was dismissed. Crown appealed. Appeal allowed. Acquittals were set aside and new trial was ordered. Trial judge erred both in admitting certain evidence and excluding other evidence. Trial judge erred in allowing text message and video transcript to be used as they had potential of feeding first of the twin myths and that in circumstances, proper jury examination could not undo that damage. Had evidence of rebutting recent fabrication been allowed, it might have aided in rehabilitating complainant’s credibility, thereby changing jury’s view of reliability of complainant’s evidence. Type of evidence placed improperly before jury was particularly pernicious.
R. v. B. (S.) (2017), 2017 CarswellNfld 111, 2017 CarswellNfld 112, 2017 SCC 16, 2017 CSC 16, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J. (S.C.C.); reversed (2016), 2016 CarswellNfld 183, 2016 NLCA 20, J.D. Green C.J.N.L., M.H. Rowe J.A., and C.W. White J.A. (N.L. C.A.).

Evidence

Opinion

Experts

Drug recognition expert’s opinion evidence was admissible without voir dire

Accused was suspected of drug impaired driving. Drug recognition expert (DRE) performed drug recognition evaluation. Accused was charged with driving while impaired by drug. At trial, Crown relied on s. 254(3.1) of Criminal Code to establish admissibility of DRE’s testimony without voir dire. Judge allowed DRE to testify as expert without voir dire, then acquitted accused. On appeal, acquittal was overturned and new trial ordered. At second trial, judge held s. 254(3.1) did not allow for automatic admissibility of DRE’s evidence and acquitted accused. Crown appealed. Judge held s. 254(3.1) rendered DRE’s opinion automatically admissible. Accused appealed. Court of Appeal held DRE’s opinion evidence was admissible without voir dire and dismissed appeal. Accused appealed. Appeal dismissed. Section 254(3.1) does not provide for automatic admissibility of DRE opinion evidence. Because s. 254(3.1) does not speak to admissibility, common law rules of evidence apply. Trial judge erred in concluding that because DRE was not expert in scientific foundation of various elements of test, none of his opinion evidence was admissible. DRE is expert for purpose of applying 12-step evaluation. Where requirements for admissibility of expert evidence at common law are met and probative value of evidence outweighs prejudicial effect, trial judge is not required to hold voir dire to determine admissibility.
R. v. Bingley (2017), 2017 CarswellOnt 2406, 2017 CarswellOnt 2407, 2017 SCC 12, 2017 CSC 12, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2015), 2015 CarswellOnt 8987, 2015 ONCA 439, E.A. Cronk J.A., E.E. Gillese J.A., and Grant Huscroft J.A. (Ont. C.A.).

Criminal Law

Post-trial procedure

Appeal from conviction or acquittal

Verdict was not unreasonable within meaning of s. 686(1)(a)(i) of Criminal Code

Accused was convicted of sexual assault causing bodily harm. It was admitted that accused engaged in anal intercourse with complainant who had no independent memory of event. Crown’s case was composed of complainant’s assertion that she would never engage in anal intercourse, series of texts and conversations between her and accused, her testimony as to her condition after event, photographs of bruising to body and doctor’s evidence regarding injuries. At trial, accused claimed it was complainant who initiated vaginal sex with him in front seat of car and that he was nervous about having sex in public place and that he did not want to have anal intercourse, claiming he thought it was dirty, but eventually agreed to complainant’s request. Accused was not successful in appeal of conviction. Accused appealed. Appeal dismissed. Trial judge did not reach decision by illogical or irrational reasoning process, and verdict was not unreasonable within meaning of s. 686(1)(a)(i) of Criminal Code.
R. v. Olotu (2017), 2017 CarswellSask 74, 2017 CarswellSask 75, 2017 SCC 11, 2017 CSC 11, Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2016), 2016 CarswellSask 453, 2016 SKCA 84, Jackson J.A., Whitmore J.A., and Ryan-Froslie J.A. (Sask. C.A.).

Criminal Law

Offences

Murder

New evidence about witness testimony was admitted on appeal

Accused and co-accused were convicted of second degree murder and assault with weapon arising out of shooting outside of casino following altercation between deceased and complainant’s group and accused and co-accused’s group. On appeal from convictions, accused applied to admit new evidence about testimony given by eyewitness S during co-accused’s retrial and two statements given by S to police, but not disclosed to accused until after his first appeal had been dismissed. S had stated that man with ponytail, identified as accused, was not shooter. Appeal judge held that weighed against evidence of identification based on inferences drawn from arguably ambiguous statements made afterwards by accused, S’s eyewitness evidence that man with ponytail was not man who shot deceased bore directly on identity of shooter and could therefore be of critical importance at any retrial. S’s police statements, or at least his KGB statement, could well have raised reasonable doubt as to accused’s identification as one of shooters in mind of trial judge, particularly given paucity of other evidence upon which that judge relied to assure himself of that element. New evidence was admitted, accused’s appeal was allowed, and new trial was ordered. Appeal by Crown dismissed. In all of circumstances, court was satisfied that S’s KGB statement was admissible, was reasonably capable of belief, and could reasonably have affected outcome.
R. v. Brown (2017), 2017 CarswellAlta 255, 2017 CarswellAlta 256, 2017 SCC 10, 2017 CSC 10, Abella J., Moldaver J., Karakatsanis J., Gascon J., and Rowe J. (S.C.C.); affirmed (2016), 2016 CarswellAlta 1190, 2016 ABCA 192, Ronald Berger J.A., J.D. Bruce McDonald J.A., and Myra Bielby J.A. (Alta. C.A.).

Civil Practice and Procedure

Limitation of actions

Real property

Claimant could not establish uninterrupted adverse possession over disputed lot

In 1930, disputed area escheated to Crown. Appellants, M family, commenced action seeking declaration that provincial Crown did not own land and could not transfer it to city, and petitioned for declaration of ownership of land in fee simple in possession. M family claimed that C family lived on disputed area starting in 1909 and G family moved into C home and lived there until 1922. Municipality brought summary trial application seeking dismissal of related action. Trial judge found there was approximate four-year period between last evidence of C arguably living on disputed area and first evidence of G family as residents in area. In second hearing, M family produced further evidence pursuant to s. 11 of Land Title Inquiry Act. Municipality’s motion for summary judgment was granted. M family successfully appealed. Municipality appealed. Appeal allowed. Decisions of chamber­s judge was restored. Given chambers judge’s finding — untainted by palpable and overriding error — that M family had not established uninterrupted adverse possession over disputed lot from 1916 through 1920, it was unnecessary to address submissions of municipality and of Attorney General of British Columbia regarding whether M family’s claim was defeated for lack of registration. GM held no interest in disputed lot and therefore no interest therein passed to M family.
Nelson (City) v. Mowatt (2017), 2017 CarswellBC 400, 2017 CarswellBC 401, 2017 SCC 8, 2017 CSC 8, McLachlin C.J.C., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); reversed (2016), 2016 CarswellBC 611, 2016 BCCA 113, Saunders J.A., Chiasson J.A., and Harris J.A. (B.C. C.A.).

Criminal Law

Trial procedure

Charging jury or self–instruction

Re-examination of law was not warranted

Accused, who fathered child of complainant’s daughter and had acrimonious custody battle, was charged with arson and mischief with respect to complainant’s garage being set on fire and trees in his orchard destroyed. Trial judge considered evidence that, when contacted by police, accused disclaimed any interest in arson investigation and claimed to have spent weekend in another province when cell phone evidence indicated he was in town, as establishing accused had lied to police. Accused was convicted of arson and mischief. Accused unsuccessfully appealed with majority finding that it was open to trial judge to draw inference that accused knew what had happened on complainant’s property when he spoke to police, that his alibi was deliberate lie and deliberate lie could be relied upon as some evidence of guilt. Accused appealed. Appeal dismissed. Appeal was dismissed substantially for majority reasons in appeal decision. Re-examination of law was not warranted, particularly where neither party had asked to depart from jurisprudence.
R. v. Clifford (2017), 2017 CarswellBC 436, 2017 CarswellBC 437, 2017 SCC 9, 2017 CSC 9, Abella J., Moldaver J., Karakatsanis J., Wagner J., Côté J., Brown J., and Rowe J. (S.C.C.); affirmed (2016), 2016 CarswellBC 2150, 2016 BCCA 336, Newbury J.A., Willcock J.A., and Fenlon J.A. (B.C. C.A.).

Public Law

Elections

Advertising

Election Act (B.C.) registration requirement should be imposed only on those paying for advertising services or receiving services

Section 239 of BC’s Election Act (Act) required everyone sponsoring election advertising during campaign to register with province’s Chief Electoral Officer (CEO), regardless of amount spent during writ period. 2010 Report of CEO did not distinguish between sponsors conducting full media campaigns and individuals engaged in such activities as putting bumper stickers on cars, posting handwritten signs in windows, or wearing T-shirts with political messages (individuals). Non-profit association brought unsuccessful application for declaration that registration requirement in respect of sponsors of election advertising spending less than $500 in given campaign period infringed s. 2(b) of Canadian Charter of Rights and Freedoms, was not saved by s. 1, was of no force and effect, and should be read down to include exception for individuals. Trial judge and majority of Court of Appeal found that s. 239 infringed s. 2(b), but that infringement was justified under s. 1. BC Attorney General (A-G) took position that s. 239 did not force individuals to register. Association appealed. Appeal dismissed. Individuals who neither paid others to advertise nor received advertising services without charge were not “sponsors” and could transmit their own points of view by posting handmade signs in windows, putting bumper stickers on their cars, or wearing T-shirts with political messages on them, without registering under Act. Act was consistent with position taken by A-G. Courts below did not determine scope and nature of limitation on free expression imposed by s. 239 but accepted CEO’s interpretation as including individuals in definition of “sponsor”. When words of s. 239 were read in entire context and in grammatical and ordinary sense harmoniously with scheme of Act, object of Act, and intention of Parliament, it was clear that provision was directed only at those undertaking organized advertising campaigns who paid for advertising services or received those services without charge as contribution. While definition of “election advertising” in s. 228 was broad enough to cover expressions by individuals, ordinary meaning of “sponsor” was not. Act defined “sponsor” as “individual or organization who pays for election advertising to be conducted”. Interpreting s. 239 as imposing registration requirement only on those who pay for advertising services or receive services from others in undertaking election advertising campaigns was consistent with purpose of Act, intention of legislature, and legislative history.
B.C. Freedom of Information and Privacy Assn. v. British Columbia (Attorney General) (2017), 2017 CarswellBC 161, 2017 CarswellBC 162, 2017 SCC 6, 2017 CSC 6, McLachlin C.J.C., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J. (S.C.C.); affirmed (2015), 2015 CarswellBC 1035, 2015 BCCA 172, Newbury J.A., Saunders J.A., and Lowry J.A. (B.C. C.A.).
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