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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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Parliament intended concept of “disturbed” mind to be broad and flexible legal standard

Accused charged with two counts of second degree murder. Accused admitted giving birth to two babies and abandoning them in dumpsters. Expert witnesses gave conflicting opinions on whether accused’s mind was “disturbed” at time of offences. Trial judge had reasonable doubt that accused’s mind was disturbed and so found her guilty of lesser included offence of infanticide. Majority of Court of Appeal upheld acquittals for murder. Appeal dismissed. Parliament intended concept of “disturbed” mind to be broad and flexible legal standard. Defence was not required to show causal link between disturbance and commission of offences. Trial judge did not err in his analysis of issue.
R. v. Borowiec (Mar. 24, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Brown J., 36585) Decision at 123 W.C.B. (2d) 351 was affirmed. 128 W.C.B. (2d) 487.

Aboriginal Peoples


Metis and non-status Indians are “Indians” under s. 91(24) of Constitution Act, 1867

Plaintiffs sought three declarations: that Metis and non-status Indians are “Indians” under s. 91(24) of Constitution Act, 1867 (Can.), that federal Crown owes fiduciary duty to Metis and non-status Indians and that Metis and non-status Indians have right to be consulted and negotiated with respecting their rights, interests and needs as Aboriginal peoples. Trial judge concluded “Indians” was broad term referring to all Indigenous peoples but declined to grant second and third declarations. Federal Court of Appeal accepted that “Indians” included all Indigenous peoples but narrowed scope to exclude non-status Indians and include only Metis who satisfied criteria from R. v. Powley, [2003] 230 D.L.R. (4th) 1, 125 A.C.W.S. (3d) 1 (S.C.C.). Federal Court of Appeal declined to grant second and third declarations. Appellants appealed. Crown cross-appealed but conceded that non-status Indians are “Indians” under s. 91(24). Appeal allowed in part. Declaration can only be granted if it will have practical utility i.e. will settle “live controversy” between parties. There was no doubt first declaration met this test. Neither level of government acknowledged constitutional responsibility over Metis and non-status Indians. Declaration would guarantee certainty and accountability. Metis and non-status Indians are “Indians” under s. 91(24) by virtue of fact they are all Aboriginal peoples. “Indians” historically used as general term referring to all Indigenous peoples, including mixed-ancestry communities like Metis. Federal government has at times assumed it could legislate over Metis as “Indians.” Section 35 of Constitution Act, 1982 (Can.) states that Indian, Inuit and Metis peoples are Aboriginal peoples for purposes of Constitution. Sections 35 and 91(24) should be read together. Jurisprudence demonstrates that intermarriage and mixed-ancestry do not preclude groups from inclusion under s. 91(24). Group of distinct people with unique identity and history whose members self-identify as separate from Indians not barred from inclusion within s. 91(24). Whether particular individuals or communities are non-status Indians or Metis and therefore “Indians” is question of fact to be decided on case-by-case basis. No reason for presumptively and arbitrarily excluding certain Metis from Parliament’s protective authority based on Powley criteria which was developed pursuant to s. 35, which serves very different constitutional purpose from s. 91(24). First declaration granted. Second and third declarations lacked practical utility because they were restatements of settled law.
Daniels v. Canada (Minister of Indian Affairs and Northern Development) (Apr. 14, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J., 35945) Decision at 239 A.C.W.S. (3d) 545 was reversed. 264 A.C.W.S. (3d) 552.



Admitting evidence would not greatly undermine public confidence in rule of law

When police intercepted car driven by accused, latter attempted to flee police. Police rapidly got out of their car and asked several questions to accused who admitted that he did not have driver’s licence. Accused was arrested and charged with driving while prohibited by court order and with failure to comply with probation order. Accused unsuccessfully brought motion seeking to exclude evidence and was found guilty as charged. Accused appealed to Court of Appeal. Majority at Court of Appeal agreed with trial judge that evidence should not be excluded. Police officers were justified to take rapid actions when accused attempted to flee on foot. Admitting evidence would not greatly undermine public confidence in rule of law. Impact of breach on accused’s protected interest in informed choice was less significant. Evidence should not be excluded to preserve integrity of justice system. Rule against multiple convictions was inapplicable here because there were two separate criminal offences. Court of Appeal dismissed appeal. Accused appealed. Appeal was dismissed. Reasons given by majority at Court of Appeal were agreed with. Therefore, appeal should be dismissed.
R. c. Gagnon (Feb. 23, 2016, S.C.C., Cromwell J., Wagner J., Gascon J., Côté J., and Brown J., 36581) Decision at 124 W.C.B. (2d) 122 was affirmed. 128 W.C.B. (2d) 250.

Charter of Rights

Fundamental justice

Section 117 of Immigration and Refugee Protection Act (Can.) declared overbroad

Accused charged with human smuggling under s. 117 of Immigration and Refugee Protection Act. Section 117 prohibits organizing, inducing, aiding, or abetting persons to illegally enter Canada. Attorney General must authorize prosecutions pursuant to s. 117(4). Trial judge found that section was unconstitutionally overbroad. Court of Appeal allowed Crown’s appeal and found section constitutionally compliant. Appeal allowed. Section is overbroad in permitting prosecution of persons aiding family members or providing humanitarian aid. Ministerial discretion not to prosecute did not cure overbreadth. Crown had not shown that overbreadth was demonstrably justified. Appropriate remedy was to read down s. 117 as not applicable to persons who give humanitarian, mutual or family assistance.
R. v. Appulonappa (Nov. 27, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., 35958) Decision at 113 W.C.B. (2d) 108 was reversed. 128 W.C.B. (2d) 236.

Constitutional Law


Extension of declaration of invalidity was granted

Court declared ss. 241(b) and 14 of Criminal Code of no force and effect to extent that they prohibited physician-assisted death in certain circumstances. Court granted 12-month suspension of declaration of invalidity. Attorney-General of Canada applied for six-month extension of declaration of invalidity. Extension granted for four months. Interruption of legislative work due to federal election justified extension. Exemptions to extension granted to Quebec at its request and individuals who apply to superior court for relief.
Carter v. Canada (Attorney General) (Jan. 15, 2016, S.C.C., Abella J., Karakatsanis J., Wagner J., Gascon J., Côté J., McLachlin C.J., Cromwell J., Moldaver J., and Brown J., 35591) 128 W.C.B. (2d) 130.



Trial judge’s errors in assessment of credibility deprived accused of fair trial

Accused were charged with importing cocaine and possessing cocaine for purpose of trafficking. Accused A and R were truck drivers who brought load of ice cream from California over border. Customs officials found large amount of cocaine hidden in load. Both accused testified and denied knowledge of cocaine. R testified that he left A overnight at one point in California. Trial judge rejected evidence of both accused and referred to R’s defence as alibi. Appeal from convictions dismissed. Majority of Court of Appeal held that trial judge mischaracterized R’s defence as alibi but this error did not affect his finding of guilt. Dissenting judge held that trial judge made numerous errors in assessing R’s credibility, depriving him of fair trial. R appealing to Supreme Court of Canada. For reasons given by dissenting judge, appeal allowed and new trial ordered.
R. v. Riar (Nov. 10, 2015, S.C.C., McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Brown J., 36449) Decision at 121 W.C.B. (2d) 555 was reversed. 128 W.C.B. (2d) 107.



Members of school board’s executive committee could be examined

Following his dismissal, union’s teacher filed grievance before an arbitrator and sought request to examine executive committee’s commissioners of executive who had decided in camera to dismiss him. School board objected to the examination on basis of principle of deliberative secrecy. Arbitrator dismissed Board’s objections and allowed examination of executive committee’s members regarding their deliberations and their decision to dismiss teacher. On motion for judicial review, Superior Court quashed arbitrator’s decision and barred any testimony by members of the executive committee. Majority of Court of Appeal restored arbitrator’s decision and allowed examination of executive committee’s members. School board appealed. Appeal dismissed. Principle that motives of legislative body are “unknowable” and deliberative secrecy do not apply to a public employer, Board in this case, that decides to take disciplinary action against employee, even if an in camera meeting is ordered. Here, it was reasonable for arbitrator to rule that he needed to know what had taken place in camera in order to determine whether executive committee’s deliberations had been thorough. Hence, three members of Board’s executive committee could be examined. Further, it was wrong to say that discussions held by members of executive committee in camera were shielded by deliberative secrecy. Furthermore, arbitrator had exclusive jurisdiction to determine whether any questions that might be asked were relevant. Reasons for arbitrator’s decision were transparent and intelligible, and justification given for it was sufficient. Arbitrator’s decision fell within a range of possible acceptable outcomes which were defensible in respect of facts and law. Therefore, there was no justification for Court to intervene.
Commission scolaire de Laval c. Syndicat de l’enseignement de la région de Laval (Mar. 18, 2016, S.C.C., McLachlin C.J.C., Abella J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J., 35898) Decision at 242 A.C.W.S. (3d) 103 was affirmed. 263 A.C.W.S. (3d) 396.

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