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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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Charter of Rights

Fundamental justice

Impugned provisions of National Defence Act not overbroad

Accused members of armed forces charged under National Defence Act with committing criminal offences. Accused argued that National Defence Act was overbroad in permitting military prosecutions for criminal offences with no connection to accused’s military service. Court Martial Appeal Court upheld impugned provisions in National Defence Act. Appeal dismissed. Impugned provisions were not overbroad. Purpose of provisions was to maintain discipline, efficiency and morale in armed forces. Prosecuting criminal actions committed by members of military was rationally connected to this purpose.
R. v. Moriarity (Nov. 19, 2015, S.C.C., McLachlin C.J.C., Abella J., Rothstein J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J., 35755, 35873, 35946) Decisions at 112 W.C.B. (2d) 774, 112 W.C.B. (2d) 562 and 117 W.C.B. (2d) 611 were affirmed. 128 W.C.B. (2d) 26.


Constitutional Law

Remedies

Extension of declaration of invalidity granted

Court declared ss. 241(b) and 14 of Criminal Code (Can.) 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 four-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) 263 A.C.W.S. (3d) 83.


Motor Vehicles

PROVINCIAL REGULATION

Evidence in addition to approved screening device result not required to support driving prohibition

W registered “warn” result on approved screening device. Police imposed three-day driving prohibition under s. 215.41(3.1) of provincial Motor Vehicles Act. Prohibition was upheld by delegate of Superintendent of Motor Vehicles. On judicial review, prohibition quashed on basis that more evidence was needed that W’s ability to drive was affected by alcohol. Court of Appeal restored prohibition. Appeal dismissed. Superintendent was correct not to require evidence in addition to ASD result.
Wilson v. British Columbia (Superintendent of Motor Vehicles) (Oct. 16, 2015, S.C.C., McLachlin C.J.C., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J., File No. 35959) Decision at 115 W.C.B. (2d) 57 was affirmed. 126 W.C.B. (2d) 567.


Charter of Rights

LIMITATION OF RIGHTS AND FREEDOMS

Automatic Roadside Prohibition regime violates s. 8 of Charter and not saved by s. 1

Petitioners challenged validity of provincial legislation providing for licence suspensions and monetary penalties for drivers who register “fail” or “warn” on roadside approved screening device (ASD) test. Automatic Roadside Prohibition (ARP) regime provided for 90-day suspension for drivers registering “fail” (over .08 blood-alcohol) and lesser penalties for “warn” (.05 to .08) result. Petitioners argued that ARP regime resulted in detention of drivers subject to ASD demands without access to counsel and authorized unreasonable searches. Petitioners also argued that ARP regime created offence while permitting no procedural protections and infringing presumption of innocence. Chambers judge found that ARP regime did not infringe s. 11(d) of Charter, but that ARP regime infringed s. 8 of Charter and violation was not saved by s. 1. Chambers judge also found that provisions were valid provincial legislation. Court of Appeal upheld ruling of Chambers judge. Appeal dismissed. Legislation did not create “offence” within meaning of s. 11(d). No true penal consequences can be imposed under regime. ARP regime was by its nature traffic safety regulation and not criminal law. Consequences of “fail” result to drivers were too severe in light of legislation’s lack of any mechanism by which drivers could challenge ASD results.
Goodwin v. British Columbia (Superintendent of Motor Vehicles) (Oct. 16, 2015, S.C.C., McLachlin C.J.C., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J., File No. 35864) Decision at 112 W.C.B. (2d) 337 was affirmed.  126 W.C.B. (2d) 540.


Motor Vehicles

PROVINCIAL REGULATION

Evidence in addition to approved screening device result not required to support driving prohibition

W registered “warn” result on approved screening device. Police imposed three-day driving prohibition under s. 215.41(3.1) of provincial Motor Vehicles Act. Prohibition was upheld by delegate of Superintendent of Motor Vehicles. On judicial review, prohibition quashed on basis that more evidence was needed that W’s ability to drive was affected by alcohol. Court of Appeal restored prohibition. Appeal dismissed. Superintendent was correct not to require evidence in addition to ASD result.
Wilson v. British Columbia (Superintendent of Motor Vehicles) (Oct. 16, 2015, S.C.C., McLachlin C.J.C., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J., File No. 35959) Decision at 115 W.C.B. (2d) 57 was affirmed.  126 W.C.B. (2d) 567.


Charter of Rights

LIMITATION OF RIGHTS AND FREEDOMS

Automatic Roadside Prohibition regime violates s. 8 of Charter and not saved by s. 1

Petitioners challenged validity of provincial legislation providing for licence suspensions and monetary penalties for drivers who register “fail” or “warn” on roadside approved screening device (ASD) test. Automatic Roadside Prohibition (ARP) regime provided for 90-day suspension for drivers registering “fail” (over .08 blood-alcohol) and lesser penalties for “warn” (.05 to .08) result. Petitioners argued that ARP regime resulted in detention of drivers subject to ASD demands without access to counsel and authorized unreasonable searches. Petitioners also argued that ARP regime created offence while permitting no procedural protections and infringing presumption of innocence. Chambers judge found that ARP regime did not infringe s. 11(d) of Charter, but that ARP regime infringed s. 8 of Charter and violation was not saved by s. 1. Chambers judge also found that provisions were valid provincial legislation. Court of Appeal upheld ruling of Chambers judge. Appeal dismissed. Legislation did not create “offence” within meaning of s. 11(d). No true penal consequences can be imposed under regime. ARP regime was by its nature traffic safety regulation and not criminal law. Consequences of “fail” result to drivers were too severe in light of legislation’s lack of any mechanism by which drivers could challenge ASD results.
Goodwin v. British Columbia (Superintendent of Motor Vehicles) (Oct. 16, 2015, S.C.C., McLachlin C.J.C., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J., File No. 35864) Decision at 112 W.C.B. (2d) 337 was affirmed.  126 W.C.B. (2d) 540.


Immigration

SELECTION AND ADMISSION

Officer improperly restricted her discretion by taking literal approach to hardship test

Appellant was Tamil from Sri Lanka. His family arranged for him to travel to Canada to live with uncle when he was 16. His claim for refugee protection was refused as was his application for pre-removal risk assessment. His application for humanitarian and compassionate relief under s. 25(1) of Immigration and Refugee Protection Act was rejected by officer who concluded she was not satisfied return to Sri Lanka would result in unusual and undeserved or disproportionate hardship. Federal Court found officer’s decision reasonable and Federal Court of Appeal agreed. Appellant’s appeal allowed. Minister has discretion to exempt foreign nationals from ordinary requirements of Act, pursuant to s. 25(1), if of the opinion that such relief justified by humanitarian and compassionate considerations, including best interests of child directly affected. Ministerial guidelines establish “assessment of hardship”. Specifically, s. 25(1) provides that applicants must demonstrate “unusual and undeserved” or “disproportionate” hardship. Guidelines are instructive but not determinative; they do not create thresholds for relief separate and apart from humanitarian purpose of s. 25(1). Officers should not fetter discretion by treating them as such, thereby limiting ability to consider and give weight to all relevant humanitarian and compassionate considerations. Best interests of child directly affected are singularly significant focus and perspective, given that s. 25(1) specifically directs that they be considered. Fact that appellant was child triggered best interests analysis but also should have influenced manner in which other circumstances were evaluated. Concept of unusual or undeserved hardship presumptively inapplicable in case of child applicant since children rarely, if ever, deserving of hardship. Officer failed to consider totality of appellant’s circumstances and took unduly narrow approach to assessment of hardship. She failed to give sufficient consideration to appellant’s youth, his mental health and evidence that he would suffer discrimination if returned to Sri Lanka. She improperly restricted her discretion by taking literal approach to hardship test, thereby rendering her decision unreasonable.
Kanthasamy v. Canada (Minister of Citizenship and Immigration) (Dec. 10, 2015, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Karakatsanis J., Gascon J., Moldaver J., and Wagner J., File No. 35990) Decision at 239 A.C.W.S. (3d) 991 was reversed.  260 A.C.W.S. (3d) 344.
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