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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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Miscarriage of justice did not take place

Accused appealed convictions as co-conspirator in extortion plot raising ineffective assistance of trial counsel. Trial counsel being subject to disciplinary proceedings but permitted by law society to continue with pending criminal trial. Accused rece­­ived independent legal advice and confirmed choice of trial counsel and trial judge dismissed Crown application to remove counsel. Accused refused to waive privilege over trial file and independent legal advice for purpose of appeal. Trial counsel had failed to object to admission of document purportedly handwritten by accused or to assert spousal privilege over evidence. Accused asserted on appeal that trial counsel had been ineffective. Appeal from convictions dismissed. Further appeal to Supreme Court of Canada dismissed. No miscarriage of justice in any form took place in this case.
R. v. Meer (Jan. 21, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., and Gascon J., 36448) Decision at 123 W.C.B. (2d) 106 was affirmed. 129 W.C.B. (2d) 205.


First degree murder

Trial judge’s findings were supported by evidence

Deceased was sexually assaulted, killed by strangulation and then burned. Accused and deceased were seen together in security videos before her death. Accused’s DNA was found on tissue sample underneath deceased’s fingernails, but no other DNA evidence linked accused to deceased. Trial judge convicted accused of first degree murder. Trial judge held that underlying offence of sexual assault and murder were one part of single transaction. Trial judge found that accused’s partner provided credible evidence of accused’s conduct after deceased’s death, which included unusual washing. Trial judge held that accused’s conversation with undercover officer, regarding burning of body to dispose of it, was probative circumstantial evidence. Trial judge found that transference of DNA occurred during struggle between accused and deceased that resulted in her death. Trial judge held that it was established beyond reasonable doubt that accused was perpetrator who sexually assaulted and killed deceased. Accused’s conviction appeal was dismissed. Verdict was not unreasonable and was one that properly instructed jury, acting judicially, could have rendered. Trial judge’s assessment of evidence of accused’s partner could not be said to be unsupported by evidence. Trial judge’s findings were supported by evidence, which served to support ultimate conclusion of guilt. Accused appealed. Appeal dismissed. Reasons of majority were substantially agreed with.
R. v. Shaoulle (May. 2, 2016, S.C.C., McLachlin C.J.C., Abella J., Moldaver J., Côté J., and Brown J., 36704) Decision at 125 W.C.B. (2d) 296 was affirmed. 129 W.C.B. (2d) 167.



Despite trial judge’s errors, trier of fact would inevitably have entered conviction

Accused was charged with first degree murder and attempted murder. Trial judge refused to admit in evidence out-of-court statements made by one victim and gave instruction with respect to fabrication of alibi. Accused was eventually convicted on both counts. Accused appealed against his convictions. Majority of Court of Appeal held that trial judge erred in not admitting in evidence out-of-court statements and in giving jury instruction with respect to fabrication of alibi. However, majority found that deference was owed to trial judge’s decision to give instruction in that regard. Concluding that case against accused was overwhelming, they applied curative proviso of s. 686(1)(b)(iii) of Criminal Code and confirmed convictions. Accused appealed as of right to Supreme Court of Canada. Appeal dismissed. Instruction trial judge gave with respect to fabrication of alibi was erroneous. Trial judge should specify in such instruction that fabrication of alibi would support inference of consciousness of guilt, but no more than that. Instruction in this case did not satisfy this requirement. Moreover, there should be other evidence independent of finding that alibi was false on basis of which reasonable jury could conclude that alibi was deliberately fabricated and that accused was involved in that attempt to mislead jury. However, despite trial judge’s errors, evidence in case at bar was so overwhelming that trier of fact would inevitably have entered conviction against accused. Therefore, convictions were upheld.
R. c. Laliberté (Apr. 29, 2016, S.C.C., McLachlin C.J.C., Cromwell J., Wagner J., Gascon J., and Brown J., 36712) Decision at 126 W.C.B. (2d) 478 was affirmed. 129 W.C.B. (2d) 153.

Sale of Land

Covenants for title

Section 29 of the Historical Resources Act (Alta.) limits positive covenants that may run with land

Lougheed owned building designated Municipal Historical Resource. To compensate Lougheed for any decrease in value and rehabilitation expenses, City agreed to pay Lougheed $3.4 million in 15 annual installments (Incentive Payments). “Incentive Agreement” imposed restrictions on Lougheed and registered by caveat on title. Lougheed borrowed money from Equitable Trust. Loan was secured by, inter alia, assignment of Incentive Agreement. Lougheed subsequently obtained additional financing from Heritage Capital, assigning its right to Incentive Payments as security. When Lougheed defaulted on Equitable Trust’s loan, Equitable Trust commenced action to enforce its security. Building advertised for judicial sale. Lougheed applied for declaration that Incentive Payments were not an interest in land and not included in assets being sold in judicial sale. Master issued requested declaration and chambers judge upheld master’s declaration, finding that s. 29(3) of Historical Resources Act (Alta.) did not operate such that Incentive Payments could run with land as positive covenant. Majority of Court of Appeal allowed Equitable Trust’s appeal, finding that Act creates sui generis covenants that displace common law rule that positive covenants do not run with land. Heritage Capital Corporation’s appeal allowed. Section 29 of Act does not completely displace common law rule that positive covenants do not run with land but rather limits positive covenants that may run with land to those that are in favour of person or organizations listed at s. 29(1), namely: Minister, council of municipality in which land is located, Alberta Historical Resources Foundation or historical organization approved by Minister. Exception to common law rule should be limited by precise language of provision and underlying purpose of Act. Chambers judge properly interpreted Act. Although City fell within s. 29(1) list of organizations, covenant to pay Incentive Payments was not in its favour. As result, Incentive Payments did not become an interest that runs with land by virtue of Act. Nor did Incentive Agreement reveal intention that Incentive Payments would run with land. There was no basis on which to disturb chambers judge’s findings with respect to contractual interpretation of Incentive Agreement. Chambers judge’s conclusion that Incentive Payments were not sold in judicial sale was supported by evidence. No indication in any sale documents that court intended to sell, or purchaser intended to buy, Incentive Payments.
Heritage Capital Corp. v. Equitable Trust Co. (May. 6, 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., 36301) Decision at 248 A.C.W.S. (3d) 224 was reversed. 265 A.C.W.S. (3d) 254.



Effect of renewal agreement was to reserve higher charge on arrears than that imposed on principal money not in arrears, contrary to Interest Act

Lougheed owned office building and granted mortgage to Equitable Trust to secure $27 million loan. Interest rate was agreed at prime interest rate plus 2.875 per cent per annum. When mortgage matured on June 30, 2008, Equitable Trust agreed to extend term by seven months. “First Renewal Agreement,” effective Aug. 1, 2008, carried per annum interest rate of prime rate plus 3.125 per cent over first six months and 25 per cent over seventh month. When First Renewal Agreement matured, parties entered into “Second Renewal Agreement” which provided per annum “interest rate” on loan of 25 per cent. It was effective Feb. 1, 2009, retroactive to one month prior to expiration of First Renewal Agreement. Second Renewal Agreement required Lougheed to make monthly interest payments at “pay rate” of greater of 7.5 per cent or prime interest rate plus 4.25 per cent. Difference between monthly payments and amount payable at stated interest rate would accrue to loan but would be forgiven if Lougheed made no default. Lougheed defaulted May 15, 2009 and Equitable Trust demanded repayment at stated rate of 25 per cent. Master found that both renewal agreements offended s. 8 of Interest Act (Can.). Chambers judge reversed master’s decision. Court of Appeal unanimously agreed that First Renewal Agreement complied with s. 8 and majority agreed that Second Renewal Agreement complied with s. 8. Lougheed’s appeal allowed. Pursuant to s. 8 of Act, mortgage agreement must not stipulate for, take, reserve or exact fine, penalty or rate of interest if effect of doing so imposes higher charge on arrears than that imposed on principal money not in arrears. Section 8 applies to discounts (incentives for performance) as well as penalties for non-performance. Inquiry is directed to effect of impugned mortgage term rather than term itself. Effect of Second Renewal Agreement was to reserve higher charge on arrears (25 per cent) than that imposed on principal money not in arrears (7.5 per cent or prime plus 5.25 per cent). Use of terms “pay rate” and “interest rate” of no consequence. 25 per cent per annum interest rate set by Second Renewal Agreement void and instead set at higher of 7.5 per cent and prime interest rate plus 5.25 per cent.
Krayzel Corp. v. Equitable Trust Co. (May. 6, 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., 36123) Decision at 242 A.C.W.S. (3d) 438 was reversed. 265 A.C.W.S. (3d) 223.

Civil procedure


Partial voluntary disclosure of documents did not amount to waiver of immunity

WBG, international organization composed of separate organizations, provides loans, guarantees and grants for development projects in developing countries and primary lender for Multipurpose Bridge in Bangladesh. Three former employees of SNC-Lavalin, one of several companies bidding to supervise construction, and one representative of Bangladeshi official, charged under Canadian Corruption of Foreign Public Officials Act after allegedly conspiring to bribe Bangladeshi officials. Articles of Agreement of two WBG constituent organizations, IRBD and IDA, set out immunities and privileges. Articles provided archives inviolable and officers and employees immune from legal process for acts in official capacity unless immunity waived. INT, independent unit within WBG, forwarded emails suggesting corruption in process for awarding supervision contract to RCMP which obtained authorizations to intercept private communications and search warrant. Sgt. D prepared affidavits but made no handwritten notes and lost all emails. Crown intended to present intercepted communications at trial. Accused challenged wiretap authorizations pursuant to R. v. Garofoli and applied for order requiring production of INT records. Trial judge held that immunities and privileges facie applicable but WBG waived immunities by participating in RCMP investigation. He concluded documents were not archives and inviolable referred to protection from search and seizure or confiscation, not production. Trial judge ordered documents be produced for review. WBG’s appeal allowed. Despite its operational independence, INT’s documents formed part of IBRD’s or IDA’s archives, and INT’s personnel benefit from legal process immunity for acts in official capacity. Partial voluntary disclosure of some documents did not amount to waiver. In absence of express waiver, trial judge erred in finding WBG waived immunity. Production order should not have been issued under framework for third-party production. Garofoli framework assesses reasonableness of search when wiretaps used to intercept private communications. To obtain third-party records on Garofoli application, accused must show reasonable likelihood records will be of probative value to narrow issues in play on such application. Although documents sought could be relevant to ultimate truth of allegations in affidavits, they were not reasonably likely to be of probative value to what Sgt. D knew or should have known. Not unreasonable for Sgt. D to rely on INT information.
World Bank Group v. Wallace (Apr. 29, 2016, S.C.C., McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J., 36315) 264 A.C.W.S. (3d) 1026.



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.

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