In R v. K.P., the Alberta Court of Appeal ruled on the validity of a City of Calgary bylaw mandating minimum fines for both adult and young offenders. Justice Rowbotham held that the mandatory minimum fine provisions are inconsistent with the Youth Justice Act ("YJA") as s. 15(5) of that Act dictates that community service and/or probation may be imposed instead of a fine where appropriate.
The issue arose in the context of a 13 year old whom, after being caught applying graffiti to various buildings, was given the mandatory minimum fine of $500. The Court of Queen’s Bench upon appeal ruled that the YJA “completely and exhaustively occupied the legislative field” so there was no room for Calgary City to council to impose a mandatory minimum fine. Justice Rowbatham came to the same conclusion. The appeal was dismissed and the case remitted to the youth court judge for sentencing according to the YJA sentencing scheme.
July 29, 2011
Link to Decision
Sam Golder & Dominik Swierad
*
Friday, July 29, 2011
R. v. Kokopenace, 2011 ONCA 498 and 2011 ONCA 536
In R. v. Kokopenace, the Ontario Court of Appeal is considering allegations of systematic underrepresentation of Aboriginal on-reserve residents in Ontario jury rolls. A final decision on this issue is still pending, but the Court issued two significant preliminary rulings in 2011. First, it concluded that interveners could not be added as parties to a criminal case, but instead granted two applicants status as friends of the court. Second, it separated the case into two parts, giving no effect to the grounds of appeal in the first part, but adjourning the second while remaining seized of the appeal. It dismissed three grounds of appeal not related to the composition of the jury, but ordered that the jury issue be heard separately at a later date.
On the first issue, O'Connor A.C.J.O. found that "(i)n most instances there is no room to add 'strangers' as parties to a criminal appeal." Justice O'Connor held that it would be inappropriate and inconsistent with the Canadian criminal justice system to allow external parties to make submissions on substantive grounds or have rights of appeal. However, he concluded that Nishnawbe Aski Nation (NAN) and Aboriginal Legal Services of Toronto (ALST) have resources and experience that would assist the court in fully developing the record, whereas individual litigants such as the appellants do not. Therefore Justice O'Connor decided to grant NAN and ALST status as friends of the court and dispense with the usual blanket limitation that confines interveners to the existing record. He held that their participation may include cross-examining witnesses or introducing relevant evidence not tendered by the parties, but was not prepared to grant them unfettered participation.
LaForme J.A., writing for the court on the second issue, concluded that the abnormal procedure was within the Court's inherent jurisdiction to control its own process. Justice LaForme acknowledged that his decision to reject part of an appeal but adjourn the remainder to a later date was "perhaps an unusual one," but held that the merits of the appeal had not yet been fully argued.
July 6 / July 29, 2011
Link to 2011 ONCA 498
Link to 2011 ONCA 536
Marc Gibson & Sam Golder
*
On the first issue, O'Connor A.C.J.O. found that "(i)n most instances there is no room to add 'strangers' as parties to a criminal appeal." Justice O'Connor held that it would be inappropriate and inconsistent with the Canadian criminal justice system to allow external parties to make submissions on substantive grounds or have rights of appeal. However, he concluded that Nishnawbe Aski Nation (NAN) and Aboriginal Legal Services of Toronto (ALST) have resources and experience that would assist the court in fully developing the record, whereas individual litigants such as the appellants do not. Therefore Justice O'Connor decided to grant NAN and ALST status as friends of the court and dispense with the usual blanket limitation that confines interveners to the existing record. He held that their participation may include cross-examining witnesses or introducing relevant evidence not tendered by the parties, but was not prepared to grant them unfettered participation.
LaForme J.A., writing for the court on the second issue, concluded that the abnormal procedure was within the Court's inherent jurisdiction to control its own process. Justice LaForme acknowledged that his decision to reject part of an appeal but adjourn the remainder to a later date was "perhaps an unusual one," but held that the merits of the appeal had not yet been fully argued.
July 6 / July 29, 2011
Link to 2011 ONCA 498
Link to 2011 ONCA 536
Marc Gibson & Sam Golder
*
Tuesday, July 26, 2011
R. v. Goulet, 2011 ABCA 230
In this case, the Alberta Court of Appeal held that, in assessing whether the conduct of the accused gave rise to "endangerment" and therefore constituted a "serious personal injury offence" under the Criminal Code, the analysis focuses on the entire context in which the conduct occurred, and not only contextual factors relating to the conduct of the accused.
The respondent, while driving impaired, crashed into the complainant’s vehicle and seriously injured the complainant. At the time of the crash, many people were in the surrounding area and could have aided the injured complainant. The respondent fled the scene of the accident but was quickly apprehended by police. She was convicted of having left the scene of an accident and given a 12 month conditional sentence. Under s.752(a)(ii) of the Criminal Code, an indictable offence involving "conduct endangering or likely to endanger the life or safety of another person..." constitutes a "serious personal injury offence." Under s.742.1 of the Criminal Code, in light of amendments made in 2007, conditional sentences are not available for serious personal injury offences. Based on this statutory language, the Crown argued on appeal that the respondent was not eligible to receive a conditional sentence.
Reviewing the relevant caselaw, which revealed two conflicting streams of jurisprudence on the point, Justice Slatter held that when assessing the existence of endangerment arising from the conduct of the accused leaving the scene, it is relevant to look not only at the accused’s conduct but also at the entire context in which the conduct occurred. Here, there was a large number of other people at the scene to aid the injured driver, so there was no endangerment. The respondent's offence was, therefore, not a "serious personal injury offence," and the respondent was eligible to receive a conditional sentence.
July 26, 2011
Link to Decision
Sam Golder & Kai Sheffield
*
The respondent, while driving impaired, crashed into the complainant’s vehicle and seriously injured the complainant. At the time of the crash, many people were in the surrounding area and could have aided the injured complainant. The respondent fled the scene of the accident but was quickly apprehended by police. She was convicted of having left the scene of an accident and given a 12 month conditional sentence. Under s.752(a)(ii) of the Criminal Code, an indictable offence involving "conduct endangering or likely to endanger the life or safety of another person..." constitutes a "serious personal injury offence." Under s.742.1 of the Criminal Code, in light of amendments made in 2007, conditional sentences are not available for serious personal injury offences. Based on this statutory language, the Crown argued on appeal that the respondent was not eligible to receive a conditional sentence.
Reviewing the relevant caselaw, which revealed two conflicting streams of jurisprudence on the point, Justice Slatter held that when assessing the existence of endangerment arising from the conduct of the accused leaving the scene, it is relevant to look not only at the accused’s conduct but also at the entire context in which the conduct occurred. Here, there was a large number of other people at the scene to aid the injured driver, so there was no endangerment. The respondent's offence was, therefore, not a "serious personal injury offence," and the respondent was eligible to receive a conditional sentence.
July 26, 2011
Link to Decision
Sam Golder & Kai Sheffield
*
Friday, July 15, 2011
The Minister of Citizenship v. Immigration and Rachidi Ekanza Ezokola, 2011 FCA 224
In The Minister of Citizenship and Immigration v. Rachidi Ekanza Ezokola, the Federal Court of Appeal considered whether a senior official with a foreign government, who remains in his or her position without protest and continues to defend the interests of his or her government while being aware of the crimes committed by this government, can nonetheless be considered a refugee under s. (1)(F) of the United Nations Convention relating to the Status of Refugees. The court held that such a conclusion is possible, and clarified the legal test on whether such an individual has been complicit in the crimes committed by his or her government.
In the Court’s view, a senior official may, by remaining in his or her position without protest and continuing to defend the interests of his or her government while being aware of the crimes committed by this government, demonstrate “personal and knowing participation” in these crimes and, thus, be complicit with the government in their commission. However, the final outcome will always depend on the facts particular to each case.
The Court noted that the test to determine complicity does not necessarily require personal participation by the individual in the crimes alleged, whether by carrying them out personally or facilitating their commission in the manner described; such a rendering of the “personal and knowing participation” test is too narrow. The Court also distinguished between the “personal and knowing participation” test and a “personal and knowing awareness” test, noting that the latter is too broad and, thus, an error of law.
In obiter, the Court called for an end to using the term “complicity by association,” arguing that it is misleading since it is contribution to the commission of a crime (i.e. personal and knowing participation) rather than simply association that leads to liability. Instead, it argued, “complicity” alone should be referred to.
July 15, 2011
Link to Decision
Mark Carter & Dominik Swierad
*
In the Court’s view, a senior official may, by remaining in his or her position without protest and continuing to defend the interests of his or her government while being aware of the crimes committed by this government, demonstrate “personal and knowing participation” in these crimes and, thus, be complicit with the government in their commission. However, the final outcome will always depend on the facts particular to each case.
The Court noted that the test to determine complicity does not necessarily require personal participation by the individual in the crimes alleged, whether by carrying them out personally or facilitating their commission in the manner described; such a rendering of the “personal and knowing participation” test is too narrow. The Court also distinguished between the “personal and knowing participation” test and a “personal and knowing awareness” test, noting that the latter is too broad and, thus, an error of law.
In obiter, the Court called for an end to using the term “complicity by association,” arguing that it is misleading since it is contribution to the commission of a crime (i.e. personal and knowing participation) rather than simply association that leads to liability. Instead, it argued, “complicity” alone should be referred to.
July 15, 2011
Link to Decision
Mark Carter & Dominik Swierad
*
Wednesday, July 13, 2011
Maritime Electric v. Summerside (City of), 2011 PECA 13
In this case, the Prince Edward Island Court of Appeal assessed whether the constitutents to be considered in the "public interest and necessity" test in section 2.1(2) of the Electric Power Act include province-wide customers of Maritime Electric's service, or simply those directly provided with electricity by the proposed City of Summerside electric energy plan. Justice McQuaid, writing for the majority, held that only customers to be provided with "service" under the proposed plan could be considered. In partial dissent, Chief Justice Jenkins found that all of Maritime Electric's customers were potentially affected, and should be considered within the test.
This appeal and cross-appeal were brought by the City of Summerside and Maritime Electric, following an application to the Island Regulatory and Appeals Commission for a permit allowing the City to construct a line and connect its substation to Maritime Electric's Bedeke station. In deciding to grant the permit, the Commission was to consider the public convenience and necessity of the area the applicant, the City, intends to service. Justice McQuaid found that the simple transmission of electrical energy over a geographical area does not constitute "service". According to s.1(1)(g) of the Act, "service" is the transmission or provision of electric energy for the benefit of customers and for compensation. Thus, only customers actually receiving the transmitted energy and paying fees in exchange are to be considered in the public convenience and necessity test. This includes customers of the City utilities within the city boundaries and beyond, but not customers of Maritime Electric in overlapping or other areas.
In partial dissent, Chief Justice Jenkins found that Maritime Electric customers further afield should also be considered in the test. Jenkins C.J. undertook a consideration of s.2.1 based on a modern interpretation of the Act in the context of the modern electric service franchise granted to Maritime Electric in exchange for guaranteed service to all areas of PEI. He rejected any analysis of analogous terms in former incarnations of the legislation and previous cases, noting that they had been decided when the legislation was aimed at standardizing quality and access across a number of small, independent electric providers across the province, each with a defined area of service. Relying on the language in the preamble of the Act, Jenkins C.J. argued that the present Act was designed to encourage reasonable and publicly justifiable rates for electrical power, and that a broader definition of "service" was required to achieve this goal.
July 13, 2011
Link to Decision
Webnesh Haile
This appeal and cross-appeal were brought by the City of Summerside and Maritime Electric, following an application to the Island Regulatory and Appeals Commission for a permit allowing the City to construct a line and connect its substation to Maritime Electric's Bedeke station. In deciding to grant the permit, the Commission was to consider the public convenience and necessity of the area the applicant, the City, intends to service. Justice McQuaid found that the simple transmission of electrical energy over a geographical area does not constitute "service". According to s.1(1)(g) of the Act, "service" is the transmission or provision of electric energy for the benefit of customers and for compensation. Thus, only customers actually receiving the transmitted energy and paying fees in exchange are to be considered in the public convenience and necessity test. This includes customers of the City utilities within the city boundaries and beyond, but not customers of Maritime Electric in overlapping or other areas.
In partial dissent, Chief Justice Jenkins found that Maritime Electric customers further afield should also be considered in the test. Jenkins C.J. undertook a consideration of s.2.1 based on a modern interpretation of the Act in the context of the modern electric service franchise granted to Maritime Electric in exchange for guaranteed service to all areas of PEI. He rejected any analysis of analogous terms in former incarnations of the legislation and previous cases, noting that they had been decided when the legislation was aimed at standardizing quality and access across a number of small, independent electric providers across the province, each with a defined area of service. Relying on the language in the preamble of the Act, Jenkins C.J. argued that the present Act was designed to encourage reasonable and publicly justifiable rates for electrical power, and that a broader definition of "service" was required to achieve this goal.
July 13, 2011
Link to Decision
Webnesh Haile
R. v. Aucoin, 2011 NSCA 64
In this case, the Nova Scotia Court of Appeal considered the scope of s. 8 of the Canadian Charter of Rights and Freedoms in relation to police officer investigations under the Motor Vehicle Act 1989 (MVA). Hamilton J.A., writing for the majority, held that it is not unreasonable for an officer to administer a pat down search after giving a ticket under the MVA if the officer believes it is necessary to have the accused sit in the police car while the officer writes the ticket. Beveridge J.A., writing in dissent, held that an investigative detention incidental to a summary offence ticket under the MVA is not lawful unless there are reasonable grounds to believe that the accused poses a flight risk.
The issue arose when the appellant was found in breach of s. 100A(1) of the MVA for having a blood alcohol content greater than zero. He was not above the legal limit for drivers, but as a newly licensed driver he was not permitted to be above zero. The officer was alone and it was dark, leaving him no place to write the ticket except in the police car. The appellant was barred by the MVA from returning to his own vehicle, so to prevent him from being able to walk away, the officer asked him to sit in the back of the police car and conducted a pat down search first.
The majority found that an investigate detention pursuant to the MVA was reasonable under the circumstances. Hamilton J.A. held that the incidental pat down search was therefore reasonable under the test from R. v. Collins and did not breach the appellant’s s. 8 rights. In dissent, Beveridge J.A. noted that any person waiting for a ticket can possibly drive or walk away. He argued that there must be reasonable grounds in the mind of the arresting offer - a more objective standard than that employed by the majority - to suspect a flight risk or an investigative detention will not be justified. Beveridge J.A. found that such grounds did not exist in this case and therefore found a breach of s. 8. He would have excluded the results of the search from evidence pursuant to s. 24(2) of the Charter.
July 13, 2011
Link to Decision
Marc Gibson, Jen-Yii Liew & Minsuk Kim
The issue arose when the appellant was found in breach of s. 100A(1) of the MVA for having a blood alcohol content greater than zero. He was not above the legal limit for drivers, but as a newly licensed driver he was not permitted to be above zero. The officer was alone and it was dark, leaving him no place to write the ticket except in the police car. The appellant was barred by the MVA from returning to his own vehicle, so to prevent him from being able to walk away, the officer asked him to sit in the back of the police car and conducted a pat down search first.
The majority found that an investigate detention pursuant to the MVA was reasonable under the circumstances. Hamilton J.A. held that the incidental pat down search was therefore reasonable under the test from R. v. Collins and did not breach the appellant’s s. 8 rights. In dissent, Beveridge J.A. noted that any person waiting for a ticket can possibly drive or walk away. He argued that there must be reasonable grounds in the mind of the arresting offer - a more objective standard than that employed by the majority - to suspect a flight risk or an investigative detention will not be justified. Beveridge J.A. found that such grounds did not exist in this case and therefore found a breach of s. 8. He would have excluded the results of the search from evidence pursuant to s. 24(2) of the Charter.
July 13, 2011
Link to Decision
Marc Gibson, Jen-Yii Liew & Minsuk Kim
Tuesday, July 12, 2011
R. v. Stevens, 2011 ONCA 504
In R. v. Stevens, the Ontario Court of Appeal considered the application of s. 8 of the Charter
to the search and seizure of gun cases after a warrantless search of a rented apartment by police officers. In finding that the search and seizure violated s. 8, the court distinguished the gun cases themselves from their contents for the purposes of s. 8, rejecting the application of the "plain view" doctrine to the contents of the gun cases and finding no exigent circumstances to justify the search. Armstrong J.A., writing for the court, excluded the evidence under s. 24 and reversed the appellant's conviction for careless storage of a firearm and ammunition.
The case arose when the appellant's landlord inadvertently commenced the eviction process against the appellant, following a dispute over rent. In enforcing the mistaken eviction, sheriff’s officers entered the apartment and discovered two gun cases. They called the police, who opened the cases without a search warrant and discovered improperly stored guns and ammunition inside.
Finding no cases directly on point, Justice Armstrong discussed reasonable expectation of privacy in relation to precedents that excluded evidence found during warrantless searches of a hotel room closet and a bus terminal locker, respectively. He held that a mistaken eviction order does not diminish an individual’s expectation of privacy in his own home; nor does a landlord’s duty to take inventory of personal property in the course of an eviction justify the opening of gun cases. Justice Armstrong distinguished the case from R. v. Wint, where the Ontario Court of Appeal found no s. 8 violation when police searched an impounded car, reasoning that the privacy interests in the contents of an apartment home in the custody of the landlord are greater than those in the contents of a car in the custody of the police. In disagreement with the courts below, Armstrong JA found no “exigent circumstances" to justify a warrantless search of the gun cases. He drew a distinction between the right to be present and the right to search, finding that the police had the former, but not the latter. Additionally, Justice Armonstrong rejected the Superior Court's application of the “plain view” doctrine, noting that while the cases were in plain view, the guns were not.
July 12, 2011
Link to Decision
Tony Drake, Marc Gibson, Kai Sheffield
The case arose when the appellant's landlord inadvertently commenced the eviction process against the appellant, following a dispute over rent. In enforcing the mistaken eviction, sheriff’s officers entered the apartment and discovered two gun cases. They called the police, who opened the cases without a search warrant and discovered improperly stored guns and ammunition inside.
Finding no cases directly on point, Justice Armstrong discussed reasonable expectation of privacy in relation to precedents that excluded evidence found during warrantless searches of a hotel room closet and a bus terminal locker, respectively. He held that a mistaken eviction order does not diminish an individual’s expectation of privacy in his own home; nor does a landlord’s duty to take inventory of personal property in the course of an eviction justify the opening of gun cases. Justice Armstrong distinguished the case from R. v. Wint, where the Ontario Court of Appeal found no s. 8 violation when police searched an impounded car, reasoning that the privacy interests in the contents of an apartment home in the custody of the landlord are greater than those in the contents of a car in the custody of the police. In disagreement with the courts below, Armstrong JA found no “exigent circumstances" to justify a warrantless search of the gun cases. He drew a distinction between the right to be present and the right to search, finding that the police had the former, but not the latter. Additionally, Justice Armonstrong rejected the Superior Court's application of the “plain view” doctrine, noting that while the cases were in plain view, the guns were not.
July 12, 2011
Link to Decision
Tony Drake, Marc Gibson, Kai Sheffield
Thursday, July 7, 2011
Trifidus Inc. v. Samgo Innovations Inc. et al., 2011 NBCA 59
The major issue in this case is when, if ever, a corporation can be represented in a legal proceeding by anyone that is not a lawyer. Trifidus and Samgo, two corporations, became embroiled in a dispute over the use of Trifidus's property. Under Rule 17.01 of the Rules of Court, a corporation must be represented by a solicitor in a legal proceeding. However, under Rule 1.03, all rules must be interpreted with an eye to justice, expense and speed. Under Rule 2.01, the Court may dispense with compliance with any rule unless the rule implies or provides otherwise.
Justice Quigg noted that traditionally, a corporation must be represented by a solicitor as it is for most purposes treated as a natural person, but is unable to represent itself. Ruling otherwise would give natural persons a right they do not possess - the right to be represented by someone who is not a lawyer. However, under the equitable auspices of Rule 1.03, Quigg J.A. held that Rule 17.01 can be dispensed with in certain situations, and set out the following factors weighing in favour of dispensing with the rule: whether the individual seeking the waiver is a sole shareholder and sole director of the company, whether it is a closely held corporation such as a family business, whether the corporation lacks the financial resources to pursue or defend the action, whether there is merit to the action or defence, whether the matter being considered is a narrow issue of law, whether the proposed representative is capable of pursuing or defending the action having regard to the complexity of the matter, whether the corporation is ready and willing to pay costs if ordered, and whether the other party would be exposed to greater costs if represented by a solicitor. Quigg J.A. stated that the threshold to meet this test must be high, and discretion to dispense with the Rule should not be exercised where there would be injustice suffered by other parties. In this case, the test was not satisfied.
Bell J.A. concurred in the decision but disagreed over whether a trial judge has discretion to dispense with Rule 17.01, preferring to leave the issue to be determined by the Legislature or Lieutenant-Governor in Council. He argued that, should a trial judge have discretion over whether a corporation is represented by a lawyer, there would be no reason that the discretion wouldn’t also apply to disabled persons and in acting as a representative of another party.
July 7, 2011
Link to Decision
Mike Kholodenko, Mary Phan & Kai Sheffield
Justice Quigg noted that traditionally, a corporation must be represented by a solicitor as it is for most purposes treated as a natural person, but is unable to represent itself. Ruling otherwise would give natural persons a right they do not possess - the right to be represented by someone who is not a lawyer. However, under the equitable auspices of Rule 1.03, Quigg J.A. held that Rule 17.01 can be dispensed with in certain situations, and set out the following factors weighing in favour of dispensing with the rule: whether the individual seeking the waiver is a sole shareholder and sole director of the company, whether it is a closely held corporation such as a family business, whether the corporation lacks the financial resources to pursue or defend the action, whether there is merit to the action or defence, whether the matter being considered is a narrow issue of law, whether the proposed representative is capable of pursuing or defending the action having regard to the complexity of the matter, whether the corporation is ready and willing to pay costs if ordered, and whether the other party would be exposed to greater costs if represented by a solicitor. Quigg J.A. stated that the threshold to meet this test must be high, and discretion to dispense with the Rule should not be exercised where there would be injustice suffered by other parties. In this case, the test was not satisfied.
Bell J.A. concurred in the decision but disagreed over whether a trial judge has discretion to dispense with Rule 17.01, preferring to leave the issue to be determined by the Legislature or Lieutenant-Governor in Council. He argued that, should a trial judge have discretion over whether a corporation is represented by a lawyer, there would be no reason that the discretion wouldn’t also apply to disabled persons and in acting as a representative of another party.
July 7, 2011
Link to Decision
Mike Kholodenko, Mary Phan & Kai Sheffield
Wednesday, July 6, 2011
Moulton Contracting Ltd. v. Behn, 2011 BCCA 311
In this case, the British Columbia Court of Appeal clarified whether individual members of a First Nation have standing to challenge the validity of government issued instruments on the basis of an alleged failure to consult. They also ruled, in the alternative, on whether such a challenge on the validity of the instruments is an impermissible collateral attack and therefore an abuse of process. Madam Justice Saunders ruled that absent a challenge by the First Nation itself, individual members of the First Nation may not attack the validity of instruments as they lack standing. She also ruled that in the alternative that such a challenge is an impermissible collateral attack.
Moulton Contracting was granted two timber sale licenses and a road permit by the BC government within the treaty 8 territory of the Fort Nelson First Nation. The defendants, members of the Fort Nelson First Nation, blocked the road that provided access to the road referred to in the timber sale licenses and impeded Moulton Contracting’s activities. The Behn family, in their pleadings at trial, argued that Moulton had no rights that were impeded by their actions because the licenses and permit were not valid, as the government had failed its duty to consult before issuing them. Moulton sought to have these pleadings struck. Justice Saunders ruled that the defendants lacked standing to raise this defence as treaty rights are held collectively and must be asserted by the community; it “requires authorization by the collective in whom the treaty and constitutional rights inhere,” which the defendants did not have.
In the alternative, Justice Saunders held that the defendants pleadings were also an impermissible collateral attack on government instruments. She distinguished this case from Canada v. Telezone as this case has at its object the nullification of an order as opposed to Telezone where the validity was immaterial to the damages claim. The defendants were able, and aware, that they could challenge the permits through judicial review but chose not to. That legal avenue should have been pursued instead of blockading the road and then challenging the permits in this setting. The appeal was therefore dismissed.
July 6, 2011
Link to Decision
Sam Golder
Moulton Contracting was granted two timber sale licenses and a road permit by the BC government within the treaty 8 territory of the Fort Nelson First Nation. The defendants, members of the Fort Nelson First Nation, blocked the road that provided access to the road referred to in the timber sale licenses and impeded Moulton Contracting’s activities. The Behn family, in their pleadings at trial, argued that Moulton had no rights that were impeded by their actions because the licenses and permit were not valid, as the government had failed its duty to consult before issuing them. Moulton sought to have these pleadings struck. Justice Saunders ruled that the defendants lacked standing to raise this defence as treaty rights are held collectively and must be asserted by the community; it “requires authorization by the collective in whom the treaty and constitutional rights inhere,” which the defendants did not have.
In the alternative, Justice Saunders held that the defendants pleadings were also an impermissible collateral attack on government instruments. She distinguished this case from Canada v. Telezone as this case has at its object the nullification of an order as opposed to Telezone where the validity was immaterial to the damages claim. The defendants were able, and aware, that they could challenge the permits through judicial review but chose not to. That legal avenue should have been pursued instead of blockading the road and then challenging the permits in this setting. The appeal was therefore dismissed.
July 6, 2011
Link to Decision
Sam Golder
Neumann v. Canada (Attorney General), 2011 BCCA 313
In Neumann v. Attorney General, Madam Justice Ryan accepted without finding that the tort of negligent investigation, a tort of relatively recent origin in Hill v. Hamilton-Wentworth, applies to tax investigators carrying out a search even though she did not find that there was a breach of duty in the immediate case. Canada's appeal was allowed setting aside the awarded damages of $1.3 million.
Mr. Neumann is a businessman who carried out dealings with Ms. B, a party the Canada Revenue Agency (CRA) was investigating. His workplace was also his place of residence. One morning, CRA agents arrived at Mr. Neumann's house, unannounced, armed with a warrant to search and seize documents related to Ms. B. Following the search, Mr. Neumann, a former victim of East Germany's oppressive regime, suffered from post-traumatic stress disorder related to the investigation.
Justice Ryan ultimately found that there was no evidence that the CRA was negligent in seeking and executing the search warrant in this case. While there may have been less invasive search alternatives available to the CRA, Justice Ryan did not find that those would have been legitimate options for a reasonable investigator.
July 6, 2011
Link to Decision
Leonard Elias
Mr. Neumann is a businessman who carried out dealings with Ms. B, a party the Canada Revenue Agency (CRA) was investigating. His workplace was also his place of residence. One morning, CRA agents arrived at Mr. Neumann's house, unannounced, armed with a warrant to search and seize documents related to Ms. B. Following the search, Mr. Neumann, a former victim of East Germany's oppressive regime, suffered from post-traumatic stress disorder related to the investigation.
Justice Ryan ultimately found that there was no evidence that the CRA was negligent in seeking and executing the search warrant in this case. While there may have been less invasive search alternatives available to the CRA, Justice Ryan did not find that those would have been legitimate options for a reasonable investigator.
July 6, 2011
Link to Decision
Leonard Elias
Tuesday, July 5, 2011
Humphrey Estate v. Canada (Superintendent of Bankruptcy), 2011 ABCA 210
In Humphrey Estate v. Canada (Superintendent of Bankruptcy), the court upheld the trial judge's ruling that license fees charged on a file-by-file basis for use of software program can be claimed by a trustee in bankruptcy as disbursement. The issue arose over Alger & Associates' use of Ascend software provided by Promeric Technologies Inc.
Under the Bankruptcy and Insolvency General Rules and Directives, a trustee's disbursements do not include the indirect costs of the trustee's facilities such as computer software charges. Berger, J.A. agreed with the trial judge's reasoning that Ascend software is not part of the "infrastructure" of a trustee's office since the license fee charged is specific to a particular estate. Thus, the fees are not contemplated by the prohibitions in the Rules and Directives as those extend to more general software such as word processing and billing. Berger, J.A. added that the license fees here are analogous to postage and courier charges, which are direct costs incurred in the administration of a particular estate.
Berger, J.A. held for the court that the software license fees could be claimed as disbursement and dismissed the appeal.
July 5, 2011
Link to Decision
Adrienne Ho
*
Under the Bankruptcy and Insolvency General Rules and Directives, a trustee's disbursements do not include the indirect costs of the trustee's facilities such as computer software charges. Berger, J.A. agreed with the trial judge's reasoning that Ascend software is not part of the "infrastructure" of a trustee's office since the license fee charged is specific to a particular estate. Thus, the fees are not contemplated by the prohibitions in the Rules and Directives as those extend to more general software such as word processing and billing. Berger, J.A. added that the license fees here are analogous to postage and courier charges, which are direct costs incurred in the administration of a particular estate.
Berger, J.A. held for the court that the software license fees could be claimed as disbursement and dismissed the appeal.
July 5, 2011
Link to Decision
Adrienne Ho
*
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