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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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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.

Criminal Law

Breathalyzer

Automatic Roadside Prohibition scheme not minimally impairing right of driver to be free of unreasonable search and seizure

Automatic Roadside Prohibition (ARP) scheme calling for roadside analysis of drivers’ breath samples using approved screening device (ASD). “Fail” reading and driver’s refusal to provide sample result in 90-day licence suspension. Process for review only permits Superintendent of Motor Vehicles to consider whether applicant was “driver” and whether ASD registered “fail”, “warn” or driver refused to provide sample. Drivers’ samples registered “fail” except G who refused to provide sample. Chambers judge found ARP scheme intra vires and that s. 11(d) of Canadian Charter of Rights and Freedoms not infringed but concluded ARP scheme violates s. 8 only where ASD registers “fail”. Court of Appeal upheld decision. Appeals dismissed. Pith and substance of ARP scheme is licensing of drivers, enhancement of traffic safety and deterrence of impaired driving. Provinces’ role of ensuring highway safety includes regulating who is able to drive. Provincial drunk driving programs do not invade federal power over criminal law merely because they target conduct also captured by Criminal Code. ARP scheme falling within provincial power over property and civil rights in province. ARP scheme does not create “offence” within meaning of Charter s. 11(d). Scheme concerns licensing drivers, enhancement of traffic safety and deterrence of impaired driving. Nor does scheme impose true penal consequences. While costs and penalties are significant and 90-day licence suspension is meaningful, they do not engage fair-trial rights. While demand to provide breath sample constitutes seizure that infringes individual’s reasonable expectation of privacy and engages s. 8, purpose and consequences of seizure are established by ARP scheme. Breath demand is critical component. While it has certain criminal-like features, consequences of “fail” reading or failure to provide sample are not criminal. Given concerns whether ASD accurately reflects blood-alcohol readings, driver’s ability to challenge accuracy of ASD result is critical to reasonableness of ARP regime. Absence of meaningful review of accuracy of result of seizure render ARP scheme unreasonable; ARP scheme not minimally impairing right of driver to be free of unreasonable search and seizure.
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 237 A.C.W.S. (3d) 511 was affirmed.  259 A.C.W.S. (3d) 683.
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