2011 year in review: constitutional developments in Canadian criminal law.
I. INTRODUCTION II. PROCEDURAL RIGHTS i. An extradition judge may stay proceedings due to conduct of the requesting state that does not affect the fairness of the committal hearing ii. Protections against self-incrimination do not apply to evidence that may be used to impeach credibility but not to prove guilt III. PRIVACY RIGHTS AND POLICE POWERS i. Expectations of digital privacy in child pornography cases ii. Limitations on searches that are incidental to other law enforcement duties IV. MINORITY RIGHTS i. First Nations underrepresentation on jury rolls contravenes the Charter ii. The Youth Criminal Justice Act does not create special constitutional guarantees for young persons iii. Freedom of religion does not justify unreasonable harm to children iv. Immigration consequences are relevant to criminal sentencing if the accused has legal status in Canada V. APPENDIX: 2011 SIGNIFICANT CASES
In 2011, the Year in Review editors of the University of Toronto Faculty of Law Review read every decision from the Canadian appellate courts, excluding Quebec. The goal of the Year in Review project is to identify cases that are not only important for the parties involved, but also advance or refine the law in a significant way. It is perhaps unsurprising that in an era where relatively few civil cases proceed all the way to judgment at trial, criminal law was the one subject on which the most significant decisions were made in 2011. In the two years since then, those criminal cases have also received the most subsequent judicial consideration.
This article builds on the Year in Review project to examine developments in criminal and quasi-criminal law that followed from 2011 appellate court decisions. In particular, we focus on cases that engaged constitutional interests and provided a new interpretation of fundamental rights. Some of the most important popular debates in Canadian society were mirrored by battles that took place in criminal and quasi-criminal court. In this article, we review the most significant legal developments from 2011 appellate cases and follow up on those that have since received further consideration at the appellate level or the Supreme Court of Canada.
For example, a decade after the September 11, 2001 terrorist attacks, the Ontario Court of Appeal considered an extradition case arising out of the American "War on Terror." It set an expansive precedent regarding the residual branch of the abuse of process doctrine, upholding a stay of proceedings because of human rights abuses that the United States committed against the respondent in Pakistan. In 2011, the Ontario Court of Appeal also took a broad interpretation of the protection against self-incrimination, only to be reversed by the Supreme Court of Canada. In section II of this article, we review these significant procedural decisions.
Another issue the courts considered through the lens of criminal law is the extent to which the modern state can intrude on the privacy of its citizens. In the first part of section III, we review three child pornography cases that interpreted police obligations when searching digital information held by third parties. The courts found that a reasonable expectation of privacy may exist in such information, but that it is a limited expectation. Both the Saskatchewan Court of Appeal and Supreme Court of Canada set precedents for admitting evidence where the police acted reasonably to obtain it. In the second part of section III, we review three cases that found appellate courts more defensive of privacy rights in the context of incidental police searches. These cases limited police powers in principle, although the Supreme Court of Canada again demonstrated an inclination to admit improperly obtained evidence where the police acted in good faith.
Finally, in section IV of this article we review several cases where the appellate courts considered the rights of minority groups, including First Nations, children, and immigrants, under criminal law. In one major development, the Ontario Court of Appeal considered the right to a representative jury. It held that coroners have the jurisdiction and the duty to inquire into the representativeness of jury rolls at an inquest, and that First Nations underrepresentation is a significant constitutional violation. These 2011 findings triggered a scathing independent report by the Honourable Frank Iacobucci and led the Ontario Court of Appeal to overturn a homicide conviction. On the topic of children's rights, two cases rejected the notion of special constitutional guarantees for young persons. A third case was more protective, denying a criminal defence that would have seen children's rights subsumed by a parent's freedom of religion. Meanwhile, certain immigrants were given special status in the context of criminal sentencing. Two cases held that immigration consequences are a vital consideration in determining a fit sentence, although a third decision distinguished the case of an accused with no legal status in Canada and thus no rights for a judge to consider.
This article concludes with an appendix of all the significant cases analyzed by our editors in 2011.
II. PROCEDURAL RIGHTS
i. An extradition judge may stay proceedings due to conduct of the requesting state that does not affect the fairness of the committal hearing
In United States of America v Khadr, (1) the Ontario Court of Appeal held that a judge has residual discretion to stay extradition proceedings where the requesting state contributed to violations of the respondent's human rights. (2) The Court held that judges retain that discretion even if the violations occurred in a third country, prior to the extradition proceedings, and did not directly affect the fairness of the hearing. (3) Writing for the Court, Sharpe JA held that the determination requires only a nexus between the state's misconduct and the committal hearing, rather than a direct relationship. (4)
The proceedings began when the United States of America sought to have a Canadian citizen extradited on terrorism charges after he was repatriated from detention in Pakistan. (5) In the Ontario Superior Court of Justice, Speyer J granted a stay of proceedings after finding that the United States collaborated in the respondent's extended detention and that the respondent suffered "shocking and unjustifiable" human rights violations while detained. (6)
On appeal by the United States, Sharpe JA rejected the argument that section 44(1)(a) of the Extradition Act (7) deprives a court of its power to stay proceedings for abuse of process. (8) Although Canadian Charter of Rights and Freedoms ("Charter") (9) issues generally fall within the jurisdiction of the Minister at the committal stage of extradition proceedings, Sharpe JA held that a court retains the common law power to protect its own integrity. (10) He also disagreed with a narrow interpretation of the Supreme Court of Canada decision in United States of America v Cobb. (11) Sharpe JA found that under the residual branch of the abuse of process doctrine, there is no requirement that the requesting state's misconduct affect the fairness of the actual extradition process. (12) Finding that there was a nexus between the American government's role in the respondent's detention and the committal hearing, Sharpe JA dismissed the appeal. (13)
ii. Protections against self-incrimination do not apply to evidence that may be used to impeach credibility but not to prove guilt
In R v Nedelcu, (14) the Ontario Court of Appeal considered the scope of the legal protections against self-incrimination. In a decision that the Supreme Court of Canada subsequently reversed, Armstrong JA held that both section 13 of the Charter and section 5(2) of the Canada Evidence Act (15) prohibit using evidence given by an individual in civil court to impeach that person's credibility during cross-examination at a criminal trial. (16) In its reversal of the Ontario Court of Appeal's decision, the Supreme Court of Canada clarified that the protection from self-incrimination is not directed against "any" evidence, but rather only to "incriminating" evidence. (17)
The issue arose after the defendant in a civil action indicated that he had no memory of a motorcycle accident that caused serious injury to a coworker. (18) The defendant then gave detailed testimony about the accident at the subsequent criminal trial. (19) The trial judge admitted that evidence for the purpose of impeaching credibility and the defendant was convicted of dangerous driving causing bodily harm. (20) On appeal, Armstrong JA overturned the trial decision based on the Supreme Court of Canada ruling in R v Henry (21) that prior compelled testimony was inadmissible against the accused in further proceedings, even for the limited purpose of challenging credibility. (22) However, the Supreme Court of Canada restored the conviction, finding that the protection from self-incrimination only applies to evidence that could be used to prove guilt. (23) Prior testimony that could be used to impeach credibility but not to independently prove guilt does not meet this condition. (24)
III. PRIVACY RIGHTS AND POLICE POWERS
i. Expectations of digital privacy in child pornography cases
Canada's appellate courts had multiple occasions in 2011 to consider the degree to which privacy rights at common law and under section 8 the Charter place limitations upon police powers of search and seizure. Three child pornography cases in particular have broad implications in the information age. In Ontario, the Ontario Court of Appeal considered an employee's reasonable expectation of privacy in relation to computer files, while the Saskatchewan Court of Appeal considered privacy rights in information held by internet service providers.
R v Cole (25) was a major development in the area of workplace privacy. The Ontario Court of Appeal held that employees have a reasonable expectation of privacy in a "work computer", even if the employer has access to the machine for administrative purposes. (26) An employer may search and copy data from the computer if it has a right of access, but the Court held that police require a warrant to conduct a search themselves, even if they have the employer's permission. (27)
The accused in Cole was a high school teacher. A technician at the school discovered explicit photographs on the teacher's laptop of a girl he thought was a student at the school. He notified the principal, who had the accused turn over his computer to school authorities. A technician searched the laptop's hard drive and browsing history and found a large number of pornographic images. The principal passed the images on to the police, who arrested the accused and searched his laptop without a warrant. (28)
The question on appeal was whether the accused had a reasonable expectation of privacy in the laptop. (29) Karakatsanis JA (as she then was) wrote for a unanimous court. She found that the teacher had a reasonable expectation of privacy, but that it was "modified" under the circumstances because he knew that his employer had access to the laptop for maintenance purposes. (30) For example, there could be no reasonable expectation of privacy in relation to a school technician acting within the scope of his functions or against the school board for turning the images over to the police. (31) However, the teacher did still have a reasonable expectation of privacy in relation to the police, who were not relieved of the obligation to obtain judicial authorization for searches. (32) Karakatsanis JA held that the unwarranted search breached the accused's right to be free from unreasonable search and seizure under section 8 of the Charter and concluded that the evidence obtained by police should be excluded pursuant to section 24(2). (33)
On appeal in 2012, the Supreme Court of Canada agreed that there had been a violation of section 8. (34) However, a majority decided that the evidence was nevertheless admissible under the test from R v Grant. (35) The majority held that the images were highly reliable and probative physical evidence and found that the police did not act negligently or in bad faith. (36) It noted the diminished nature of the teacher's privacy interest and emphasized that the images would necessarily have been discovered if the officers had complied with their constitutional requirements. (37)
The Saskatchewan Court of Appeal also heard a pair of child pornography appeals with significant ramifications for privacy rights: R v Trapp (38) and R v Spencer. (39) The Court went a step further than the Ontario Court of Appeal in Cole, finding that there is a reasonable expectation of privacy not only in files saved on computers, but also in personal information held by internet service providers ("ISPs"). However, as in Cole, this did not help either appellant overcome child pornography charges.
In Trapp, the appellant's ISP revealed his name and contact information to the police in response to a query about file sharing activities on his computer. (40) The ISP was permitted by statute to disclose information to the police on request. (41) Writing for a majority of the Court, Cameron JA found that the appellant had a reasonable expectation of privacy in the information, but ruled that the police search was reasonable because they suspected criminal activity. (42) Concurring in the result, Ottenbreit JA would have found that the appellant's subjective expectation of privacy was not reasonable under the circumstances. (43)
The Court considered a nearly identical set of facts in Spencer, except that the appellant's ISP in that case was a Crown corporation and thus subject to the Freedom of Information and Protection of Privacy Act. (44) Caldwell JA further distinguished Trapp on the basis of the contract between the appellant and the ISP, which contemplated the disclosure of information. (45) Caldwell and Ottenbreit, JJA held that those factors indicated that the appellant's subjective expectation of privacy was not reasonable. (46) In concurrence, Cameron JA would not have distinguished Trapp. Cameron JA held that the appellant enjoyed a reasonable expectation of privacy because of what the information could reveal about him, but that the police search was reasonable as it had been in Trapp. (47)
In 2013, the Supreme Court of Canada granted leave to appeal the section 8 issue in Spencer. (48)
ii. Limitations on searches that are incidental to other law enforcement duties
There were several significant cases in 2011 that considered the scope of police search powers where the cause for the search arose during unrelated law enforcement activities. As a rule, these decisions limited police ability to infringe on privacy rights when a search is not reasonable or necessary to allow law enforcement officers to fulfill their duties in a given situation.
In R v Stevens, (49) the Ontario Court of Appeal considered the application of section 8 of the Charter to the warrantless search of containers by police officers. The evidence obtained was physical rather than electronic, but Stevens has parallels to the cases in the first part of this section because the officers were provided with the containers by a third party who had limited access rights. The appellant's landlord had mistakenly commenced eviction proceedings against the appellant and sheriff's officers discovered two gun cases while doing inventory of his apartment. (50) The officers turned the cases over to the police, who searched them and charged the appellant with careless storage of a firearm. (51) Armstrong JA, writing for the Court, found that the appellant had a reasonable expectation of privacy in the contents of the cases and that the police search breached his Charter rights under section 8. (52)
Armstrong JA rejected the application of the "plain view" doctrine because while the cases were out in the open, the guns inside were not. (53) He also found that a mistaken eviction order does not diminish an individual's expectation of privacy in his or her own home or in the personal property in the home. (54) Even if the landlord had been justified in commencing eviction proceedings, the duty to take inventory did not give the landlord authority to permit the police to search the cases. (55) Armstrong JA therefore excluded the evidence under section 24(2) and reversed the appellant's conviction. (56)
In R v Kelsy, (57) the Ontario Court of Appeal considered the limits of investigative procedures in the course of responding to a 9-1-1 call. At issue in the case was whether a search of a resident's knapsack by police during the response was permitted under the common law doctrines of exigent circumstances or the test from R v Waterfield. (58) Writing for the Court, Rosenberg JA held that the reasonable necessity requirement of the Waterfield doctrine applies to searches and seizures during a police investigation, while the exigent circumstances doctrine does not. (59) Applying Waterfield, Rosenberg JA held that the use of police powers could not be "reasonably necessary" where the police had no articulable cause for their search. (60)
In R v Aucoin, (61) the Nova Scotia Court of Appeal considered the scope of section 8 of the Charter in relation to police officer investigations under the Motor Vehicle Act 1989. (62) In a dissent that was largely adopted by the Supreme Court of Canada, Beveridge JA held that an investigative detention incidental to a summary offence ticket is not lawful unless there are reasonable grounds to believe that the accused poses a flight risk. (63) Hamilton JA, 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. (64)
The issue arose when a police officer caught the appellant driving with a blood alcohol content greater than the legal limit. It was dark at the time and the officer had 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 the officer asked him to sit in the back of the police car to prevent him from being able to walk away. Before letting him in the car, the officer conducted a pat-down search of the appellant for safety purposes and discovered a large quantity of cocaine and Ecstasy. (65)
The majority found that this search was within the scope of the investigative detention doctrine and was reasonable under the test from R v Collins. (66) In dissent, Beveridge JA noted that any person waiting for a ticket could drive or walk away. He held that there must be reasonable grounds in the mind of the arresting offer to suspect a flight risk or an investigative detention will not be justified. (67) Beveridge JA concluded that such grounds did not exist on the facts of the case and therefore found a breach of section 8. (68) He would have excluded the results of the search from evidence pursuant to section 24(2) of the Charter. (69)
On appeal in 2012, the Supreme Court of Canada unanimously upheld Beveridge JA's conclusion on the section 8 analysis but disagreed with his ultimate disposition. (70) As in Cole, a majority of the Court decided to admit the evidence under section 24(2) because the officer acted in good faith. (71)
IV. MINORITY RIGHTS
i. First Nations underrepresentation on jury rolls contravenes the Charter
In 2011, the Ontario Court of Appeal began a historic inquiry into the representation of Aboriginals on jury rolls in the province. In Pierre v McRae, (72) the Court examined the function of a coroner's inquest, the process for selecting a coroner's jury, and the importance of a representative jury. It applied the doctrine of "jurisdiction by necessary implication" to determine that coroners do have jurisdiction to inquire into the representativeness of a jury roll, (73) and held that coroners also have the power to remedy a list of jurors drawn from an unrepresentative roll. (74)
The case arose because inquests were ordered into the deaths of two First Nations persons near the District of Thunder Bay. (75) Prior to the inquests, the families of the deceased produced evidence that the jury roll in the neighbouring District of Kenora excluded nearly all First Nations persons living on Aboriginal reservations. However, the coroner in each inquest refused to issue a summons to the Director of Court Operations in Thunder Bay to explain how the jury roll in that district was established. (76) On judicial review, the Division Court upheld the coroners' decisions, stating that coroners have no statutory power to review the jury roll selection process and no remedial authority even if they could make such inquiries. (77)
The Ontario Court of Appeal disagreed. Writing for the Court, Laskin JA held that if the jury of an inquest regarding a First Nations person were chosen from a jury roll that excludes First Nations persons on reserves, it could not be seen as a fair and just inquest by the public and would amount to an abuse of process under section 50(1) of the Coroners Act. (78) He held that it is a necessary implication of the coroner's statutory mandate to prevent abuse of process that he or she have jurisdiction to inquire into the representativeness of a jury roll. (79) Laskin JA held that neither section 44 of the Juries Act (80) nor section 36 of the Coroners Act (81) can "cure" an unrepresentative jury roll, because it would represent a matter of substance rather than an irregularity of form. (82) The Court thus held that coroners necessarily have jurisdiction to remedy an unrepresentative jury roll as well. (83)
Following the revelations about the Kenora jury roll in Pierre, the Aboriginal appellant in R v Kokopenace raised the issue of jury composition for the first time on appeal. (84) He had been convicted of manslaughter at trial after a friend was stabbed to death on a reserve, but there were no Aboriginals on the jury. The appellant argued that the underrepresentation of Aboriginals on the jury roll violated his rights to a fair trial and jury under sections 11(d) and (f) of the Charter, and his right to equality under section 15 of the Charter. (85) The parties were required to build a new evidentiary record for the appeal because the constitutional issue had not been argued at trial. (86) This led to unique procedural considerations.
In 2011, the Ontario Court of Appeal made two significant procedural decisions that demonstrated the significance it placed on the constitutional question. First, the Court denied two legal clinics leave to be added as parties, noting that it would be inappropriate to give appeal rights to third parties in a criminal case. (87) However, because the clinics had resources that would help develop the record for the appeal, the Court appointed them friends of the court and dispensed with the usual restriction that confines interveners to the existing record. (88) In the second ruling, the Court made the unusual decision to bifurcate the hearing, giving no effect to the grounds of appeal unrelated to jury composition, but remaining seized of the constitutional question. (89) The second part of the appeal would have been moot had there been success on the first. (90)
The Court released its final ruling in Kokopenace in 2013. (91) It rejected the appellant's claim under section 15 of the Charter, (92) but a 2-1 majority led by LaForme JA found violations under sections 11(d) and (f). (93) The majority held that there is no constitutional requirement that juries be representative of the community, but concluded that the government has to make a reasonable effort to ensure the rolls of prospective jurors are. (94) LaForme JA held that the Ontario government did not make a reasonable effort to ensure that the jury roll was representative in the District of Kenora, where on-reserve Aboriginals make up about one third of the population. (95) The Court therefore ordered a new trial. (96)
The issues raised by Pierre and Kokopenace led to an independent review that explored representation of First Nations in the administration of justice generally and on jury rolls in particular. (97) On August 11, 2011, former Supreme Court of Canada Justice Frank Iacobucci was appointed to conduct the review. His report was released in February, 2013, where he stated "the justice system generally as applied to First Nations peoples, particularly in the North, is quite frankly in a crisis." (98)
ii. The Youth Criminal Justice Act does not create special constitutional guarantees for young persons
Another constitutional issue that the appellate courts addressed multiple times in 2011 was the rights of children in relation to the criminal justice system. Two cases in particular considered whether the Youth Criminal Justice Act ("YCJA") (99) provides special constitutional guarantees to young persons.
In Rv RDR, (100) the NSCA considered the prospect of a constitutional guarantee with regard to trial rights under the YCJA. The Court held that the replacement of the Young Offenders Act ("YOA") (101) with the YCJA did not alter the proper approach to evaluating whether a young person's Charter right to be tried within a reasonable period was violated. (102) The Court rejected the argument that young offenders should be treated differently from adults under section 11(b) of the Charter. (103) Beveridge JA reasoned the YCJA did not supersede previous jurisprudence under the YOA that held that there was no special constitutional guarantee to trial without delay. (104) The term "promptness and speed" in section 3 of the YCJA must be read in context, where procedural fairness to the state and the accused take precedence over speed. (105)
In 2011, the Ontario Court of Appeal also rejected an argument that the YCJA creates special constitutional protections for young persons. In R v KM, (106) it held that reasonable expectations of privacy are the same for youth and adults under section 8 of the Charter (107) and clarified that the YCJA does not provide a special constitutional zone of privacy for young persons. (108)
At issue in the case was the constitutionality of sections 487.051(1) and 487.051(2) of the Criminal Code as they apply to young offenders. (109) The provisions mandate presumptive collection of DNA samples for certain classes of offenders in both youth and adult court. The trial judge found that youth have an increased expectation of privacy, so she read down the two sections to provide for discretionary orders instead. (110) This was reversed on appeal, as Moldaver JA (as he then was) concluded that the provisions strike a reasonable balance between the privacy interest of young persons and the law enforcement interest of the state. (111)
These decisions showcase judicial reluctance to draw a constitutional distinction between youth and adults for the purposes of criminal justice. However, Moldaver JA noted that young offenders still receive special privacy rights under the YCJA because their records, including DNA samples, are eventually destroyed. (112)
iii. Freedom of religion does not justify unreasonable harm to children
In R vDJW, (113) the British Columbia Court of Appeal held that section 2(a) of the Charter does not protect parents from criminal prosecution for unreasonably harming their own children. It found that freedom of religion could not justify a father's botched attempt to circumcise his four-year-old son himself, in defiance of medical advice. (114) The boy required surgery to prevent disfigurement and functional impairment. (115)
At trial, the father was convicted of criminal negligence causing bodily harm but was acquitted of aggravated assault and assault with a weapon. The Crown and the accused both appealed. (116) The father argued that "freedom of religion" was a defence to the charges because his actions were motivated by religious beliefs. (117) He also contended that since a parent may consent to their child's circumcision by a person who is not a doctor, the parent may also perform it personally. (118) Hinkson JA rejected that reasoning, noting that the father's religion did not demand that he perform the circumcision himself, nor that it be performed immediately. (119) A parent may only consent to have force applied to their child where the force is reasonable in the circumstances and is in the child's best interests. (120) In the result, the Court upgraded the criminal negligence conviction to aggravated assault.
In 2012, the Supreme Court of Canada upheld Hinkson JA's decision on the facts, but found it unnecessary to rule definitively on whether a circumcision performed by a person without medical training can ever be considered reasonable and in the child's best interest. (121)
iv. Immigration consequences are relevant to criminal sentencing if the accused has legal status in Canada
Several appellate courts considered the relationship between criminal and immigration law in 2011. Three cases from different jurisdictions addressed the question of whether and how immigration consequences should be taken into account by a sentencing judge in a criminal case. The decisions imply that immigration status is a relevant and potentially decisive issue when sentencing a legal resident of Canada, but it is not an appropriate consideration if the accused has no legal status.
The Manitoba Court of Appeal in R v Arganda (JR) held that a two-year sentence could not be upheld where the sentencing judge did not contemplate the immigration consequences of sentencing a permanent resident. (122) In that case, the appellant reoffended twice after completing his sentence and was ordered deported. (123) Section 64(2) of the Immigration and Refugee Protection Act ("IRPA") prevents the appeal of such orders where the offender received a sentence of two years' imprisonment or more. (124) MacInnes JA held that the sentencing judge's failure to consider the appellant's immigration status amounted to an error, (125) and rejected the argument that the sentence should nonetheless be upheld given the appellant's subsequent criminal conduct. (126) As a result, the Court varied the appellant's original sentence, reducing it by one day. (127)
The Nova Scotia Court of Appeal addressed a similar issue in R vJamieson. (128) The appellant was a permanent resident of Canada who had forfeited his right to appeal a deportation order under the IRPA because he received a two-year prison sentence. (129) He had already been deported when his case was heard, but Saunders JA reached the same conclusion that the MCA had in Arganda. The Court reduced the appellant's sentence to two years less two days to preserve his ability to exercise his immigration appeal rights. (130)
The British Columbia Court of Appeal distinguished the reasoning of cases like Arganda and Jamieson in R vDaskalov, where the accused had no legal status in Canada. (131) Writing for the Court, Smith JA held that foreign nationals have no right to remain in Canada that should be taken into account by a sentencing judge. (132) The trial judge had considered the accused's admissibility to Canada under the IRPA in granting him a conditional discharge, but Justice Smith held that this was an error. (133) She varied the sentence to one day of imprisonment, even though the conviction rendered the accused inadmissible to the country. (134)
V. APPENDIX: 2011 SIGNIFICANT CASES Administrative and Public Law Leon's Furniture Ltd v Alberta Interpreted several aspects (Information and Privacy of the Personal Information Commissioner), 2011 ABCA 94, 502 AR Protection Act (1) in 110. allowing a business to collect driver's licence numbers from its customers Spinks v Alberta (Law Enforcement Adequacy of reasons Review Board), 2011 ABCA 162, 505 AR provided by expert tribunal 260. reviewed on correctness standard Cronauer v Grande Prairie (Subdivision Interpreted ss 3.13(g) and and Development Appeal Board), 2011 3.18(d) of the Land Use ABCA 164, 505 AR 280. Bylaw of County of Grande Prairie No.1 (2) Workers' Compensation Appeal Tribunal Explained availability of v Hill, 2011 BCCA 49, 299 BCAC 129. judicial review for a decision not to dismiss a complaint on a summary basis Hagen v Insurance Corporation of Interpreted s 30.06 of the British Columbia, 2011 BCCA 124, 302 British Columbia Motor BCAC 235. Vehicle Act Regulations (3) Reference re Broadcasting Act, SC 1991 Canadian Radio-Television (Canada), 2011 FCA 64,  4 FCR and Telecommunications 231. Commission has statutory power to establish a "value for signal" regime in Canada Public Mobile Inc v Canada (Attorney Considered control in fact General), 2011 FCA 194,  3 FCR test under s 16(3) of the 344. Telecommunications Act (4) in obiter dicta Gagliano v Canada (Ex-Commissioner of Formulated standard of Inquiry into the Sponsorship Program & disqualification for bias Advertising Activities), 2011 FCA 217, applicable to judicial 336 DLR (4th) 216. commissions of inquiry Nault v Canada (Public Works and Education and employment Government Services), 2011 FCA 263, history of incumbent in 344 DLR (4th) 367. government job is protected by Privacy Act (5) Canada (National Revenue) v Ontario, Entitlement to remuneration 2011 FCA 314, 344 DLR (4th) 61. on per diem rate "fixed or ascertainable" in context of Canada Pension Plan (6) Air Canada v Toronto Port Authority, Considered definition of 2011 FCA 347, 426 NR 131. "federal board, commission or other tribunal" under Federal Courts Act (7) Newfoundland and Labrador (Information Section 52 of Access to and Privacy Commissioner) v Information and Protection Newfoundland and Labrador (Attorney of Privacy Act (8) General), 2011 NLCA 69, 343 DLR (4th) explicitly permits the 57. Commissioner to abrogate a claim to solicitor-client privilege in order to verify the legitimacy of such a claim Masters' Association of Ontario v Stated test for whether Ontario, 2011 ONCA 243, 105 OR (3d) judicial remuneration 196. conforms with principle of judicial independence Rasouli v Sunnybrook Health Sciences Removal of life support Centre, 2011 ONCA 482, 107 OR (3d) 9. considered "treatment" under Health Care Consent Act, 1996 (9) and requires consent Aguas v Rivard Estate, 2011 ONCA 494, Expanded on Reid test for 107 OR (3d) 142. setting aside Registrar's administrative dismissal order Mexico v Cargill Inc, 2011 ONCA 622, Standard of review for 107 OR (3d) 528. decisions of international tribunals on jurisdictional questions is correctness Schaeffer v Wood, 2011 ONCA 716, 107 Considered officers' OR (3d) 721. entitlement to counsel in preparation of notes Davis v Guelph (City), 2011 ONCA 761, Clarified interpretation of 345 DLR (4th) 1. "room or place actually being used as a dwelling" under s 437 of Municipal Act, 2001 (10) Maritime Electric v Summerside (City Considered "public interest of), 2011 PECA 13, 338 DLR (4th) 476. and necessity" test in s 2.1(2) of the Electric Power Act (11) Business and Corporate Law Ford Motor Company of Canada, Limited Interpreted s 84.1 of the v Welcome Ford Sales Ltd, 2011 ABCA Bankruptcy and Insolvency 158, 505 AR 146. Act (12) Humphrey Estate v Canada License fees for use of (Superintendent of Bankruptcy), 2011 software program can be ABCA 210, 510 AR 186. claimed by trustee in bankruptcy as a disbursement Icahn Partners LP v Lions Gate Considered allegations of Entertainment Corp, 2011 BCCA 228, 306 oppressive conduct in a BCAC 173. deleveraging transaction in light of the BCE Inc, Re (13) decision United States Steel Corporation v Ss 39 and 40 of Investment Canada (Attorney General), 2011 FCA Canada Act (14) violate 176, 333 DLR (4th) 1. neither s 11(d) of the Charter, (15) nor s 2(e) of the Canadian Bill of Rights (16) Nadeau Poultry Farm Limited v Groupe Clarified "refusal to deal" Westco Inc, 2011 FCA 188, 419 NR 333. test under federal Competition Act (17) Indalex Limited (Re), 2011 ONCA 265, Employer may act as both 104 OR (3d) 641. employer and administrator at same time under Pension Benefits Act; (18) collateral attack rule does not apply in federal Companies Creditors Arrangement Act (19) proceedings 2189205 Ontario Inc v Springdale Pizza Interpreted ss 5(7)(a)(iv) Depot Ltd, 2011 ONCA 467, 336 DLR and (8)(a) of the Arthur (4th) 234. Wishart Act (Franchise Disclosure), 2000 (20) Sutherland v Hudson's Bay Company, Considered law governing 2011 ONCA 606, 341 DLR (4th) 97. ownership of surplus pension funds after the Supreme Court's decision in Burke v Hudson's Bay Company (21) 10269917 Alberta Ltd v FMI Considered definition of Developments Ltd, 2011 SKCA 31, 366 "farmer" under Saskatchewan Sask R 280. Farm Security Act (22) Civil Procedure and Evidence Apex Land Corp v Heikkila, 2011 ABCA Considered Rule 244.1(1) of 87, 502 AR 243. Alberta Rules of Court (23) Reece v Edmonton, 2011 ABCA 238, 513 Abuse of process for AR 199. activists to seek declaration that Edmonton violated Animal Protection Act (24) Gradek v DaimlerChrysler Financial Interprets the words Services Canada Inc and Fletcher, 2011 "sufficient reason" in Rule BCCA 136, 307 BCAC 7. 57(10) of provincial Rules of Court, 1990 (25) in relation to costs Liquor Barn Income Fund v Becker, 2011 Actual or likely hardship BCCA 141, 302 BCAC 304. and inconvenience required for orders under s 257(1)(b) of the Land Title Act (26) Viroforce Systems Inc v R&D Capital Considered forum selection Inc, 2011 BCCA 260, 306 BCAC 271. clause under Court Jurisdiction and Proceedings Transfer Act (27) Evans v Jensen, 2011 BCCA 279, 307 Interpreted Rule 37B(5) of BCAC 150. the Rules of Court, 1990 (28) Petrelli v Lindell Beach Holiday Considered limits to Resort Ltd, 2011 BCCA 367, 310 BCAC judicial notice of court 196. records from similar actions Bodnar v The Cash Store Inc, 2011 BCCA Court has jurisdiction to 384, 310 BCAC 300. replace administrator of class action settlement if it fails at its duties Ewachniuk Estate v Ewachniuk, 2011 Considered application of BCCA 510, 313 BCAC 287. Limitation Act (29) to delayed-demand promissory notes Bartram v Glaxosmithkline Inc, 2011 Plaintiffs in class action BCCA 539, 315 BCAC 79. did not have to produce medical records at pre- certification stage BBM Canada v Research in Motion Ltd, Considered whether certain 2011 FCA 151,  1 FCR 117. intellectual property claims can be brought by application or only by action Attorney General of Canada v Almalki, Common law informer 2011 FCA 199,  2 FCR 594. privilege does not apply to Canadian Security Intelligence Services human sources 2127423 Manitoba Ltd o/a London Limos Considered definition of v Unicity Taxi Ltd et al, 2011 MBCA "person" under Taxicab 45,  MJ No 165. Act (30) Canadian Union of Public Employees v Refused to appoint receiver Hachey, 2011 NBCA 41, 372 NBR (2d) for sole purpose of 370. gathering information under Rule 41 of Rules of Court (31) Doucet and Dauphinee v Spielo Enunciated first principles Manufacturing Incorporated and and legal framework of costs Manship, 2011 NBCA 44, 372 NBR (2d) 1. awards set out in Rule 59 of the Rules of Court (32) Levesque and BMG Farming Ltd v Considered government Province of New Brunswick, 2011 NBCA immunity under the New 48, 372 NBR (2d) 202. Brunswick Proceedings Against the Crown Act (33) Williamson et al v Gillis et al, 2011 Interpreted Rule 58.01 of NBCA 53, 374 NBR (2d) 311. the Rules of Court (34) Trifidus Inc v Samgo Innovations Inc Considered representation of et al, 2011 NBCA 59, 375 NBR (2d) 141. corporation in legal proceeding by person who is not a lawyer Nova Scotia (Transportation and Considered waiver of Infrastructure Renewal) v Peach, 2011 solicitor-client privilege NSCA 27, 301 NSR (2d) 19. by civil servants Mahoney v Cumis Life Insurance Co, Interpreted Rule 12 of the 2011 NSCA 31, 301 NSR (2d) 302. Nova Scotia Civil Procedure Rules (35) Brown v Cape Breton (Regional Considered case-by-case Municipality), 2011 NSCA 32, 302 NSR privilege for settlement (2d) 84. agreements Islam v Sevgur, 2011 NSCA 114, 310 NSR Provided test for deciding (2d) 266. if a Registrar's motion to dismiss an appeal should be granted Gentra Canada Investments Inc v A cause of action for Lipson, 2011 ONCA 331, 106 OR (3d) solicitor's negligence is 261. assignable Ontario (Attorney General) v 8477 Considered forfeiture Darlington Crescent, 2011 ONCA 363, applications under s 3(1) of 333 DLR (4th) 326. the Civil Remedies Act, 2002 (36) B&M Handelman Investments Ltd v Party cannot access funds Curreri, 2011 ONCA 395, 335 DLR (4th) paid into court under Mareva 680. injunction for legal and living expenses Canadian Broadcasting Corporation v Considered jurisdiction of Ontario, 2011 ONCA 624, 107 OR (3d) appeals relating to orders 161. for access to exhibits from criminal matters Combined Air Mechanical Services Inc v Interpreted Rule 20 relating Flesch, 2011 ONCA 764, 108 OR (3d) 1. to summary judgment under the Ontario Rules of Civil Procedure (37) Almrei v Canada (Attorney General), Identified when decision to 2011 ONCA 779, 345 DLR (4th) 475. dismiss a Rule 20 motion for summary judgment will constitute a final order PEI Music v Gov't PEI & HRC, 2011 PECA Discoverability rule applies 18, 344 DLR (4th) 668. to limitation period for discrimination complaints under Human Rights Act (38) Saskatchewan Government Insurance v Provincial court has no Williams, 2011 SKCA 66, 371 Sask R jurisdiction to summarily 305. determine points of law that do not dismiss action Wallace v Canadian Pacific Railway, Clarified lawyers' duty of 2011 SKCA 108, 340 DLR (4th) 402. loyalty to clients and remedy of disqualification for breach Red Seal Vacations Inc v Alves, 2011 Not necessary for SKCA 117, 342 DLR (4th) 409. representative plaintiff to have cause of action against each defendant in class action Mosaic Potash Esterhazy LP v Potash Explained proper judicial Corporation of Saskatchewan Inc, 2011 approach to granting SKCA 120, 341 DLR (4th) 407. interlocutory injunctions Constitutional Law Vancouver International Airport Used test of "impair" rather Authority v British Columbia (Attorney than "affect" to determine General), 2011 BCCA 89, 301 BCAC 297. application of interjurisdictional immunity doctrine to federal work or undertaking Vancouver (City) v Zhang, 2011 BCCA Special costs of public 138, 303 BCAC 55. interest litigation only awarded in cases of sufficient public importance Ahousaht Indian Band and Nation v Refined Aboriginal rights Canada (Attorney General), 2011 BCCA analysis; fishing rights do 237, 305 BCAC 191. not include species only harvested in modern context West Moberly First Nations v British Duty to consult is implicit Columbia (Chief Inspector of Mines), in mandate of all Crown 2011 BCCA 247, 306 BCAC 212. delegates; hunting rights may be herd-specific Moulton Contracting Ltd v Behn, 2011 Individual band members do BCCA 311, 309 BCAC 15. not have standing to allege breach of duty to consult Greater Vancouver Regional District v Clarified interpretation of British Columbia (Attorney General), s 3(c) of Local Government 2011 BCCA 345, 309 BCAC 124. Act (39) in the context of an Aboriginal land claim British Columbia Teachers' Federation Struck down pre-campaign ad v British Columbia (Attorney General), restrictions under British 2011 BCCA 408, 311 BCAC 285. Columbia Election Act (40) as violation of freedom of speech under s 4 of the Charter (41) Ahousaht Indian Band and Nation v Plaintiff denied special Canada (Attorney General), 2011 BCCA costs even though the case 425, 312 BCAC 122. developed points of constitutional law R v DJW3 2011 BCCA 522, 314 BCAC 209. Freedom of religion under s 2(a) of the Charter (42) does not allow parent to apply force to child unreasonably Felipa v Canada (Citizenship and Former superior court judges Immigration), 2011 FCA 272, 340 DLR over age 75 may not act as (4th) 227. deputy judges of the Federal Court Reference re Marriage Commissioners Provisions that would allow Appointed under the Marriage Act, 2011 commissioners to decline to SKCA 3, 366 Sask R 48. perform gay marriages if contrary to religious beliefs declared unconstitutional Contracts McGarry v Co-operators Life Insurance Considered privity of Co, 2011 BCCA 214, 304 BCAC 238. contract in relation to insurance policies with employees as third-party beneficiaries Smith v Casco Inc, 2011 ONCA 306, 334 Considered validity of DLR (4th) 755. spousal pension waiver in light of ss 44 and 46 of the Pension Benefits Act (43) DJO Canada, Inc v Schroeder, 2011 SKCA Considered manufacturer 106, 385 Sask R 44. obligations for warranties under s 48 of Saskatchewan Consumer Protection Act (44) Criminal Law and Procedure R v Dippel, 2011 ABCA 129, 48 Alta LR An unconscious action cannot (5th) 362. indicate consent pursuant to s 273.1(1) of the Criminal Code (45) R v Goulet, 2011 ABCA 230, 52 Alta LR Interpreted "endangerment" (5th) 241. requirement for a serious personal injury offence under the Criminal Code (46) R v KP, 2011 ABCA 233, 47 Alta LR Municipal mandatory minimum (5th) 243. fine bylaw inconsistent with s 15(5) of the Youth Justice Act (47) R v Tasew, 2011 ABCA 241, 51 Alta LR Explained approach to be (5th) 30. taken by sentencing judge who identifies alternative fit sentences R v Vuradin, 2011 ABCA 280, 55 Alta LR Expanded on standard for (5th) 45. adequacy of reasons from Supreme Court of Canada decision in R v W(D) (48) R v Kasim, 2011 ABCA 336, 515 AR 254. Rejected elevated body temperature as "evidence to the contrary" with respect to breathalyzer results R v Black, 2011 ABCA 349, 54 Alta LR Clarified availability of (5th) 12. certiorari to the Crown in respect of interlocutory rulings; considered disclosure and relevance of breathalyzer calibration logs R v Sue, 2011 BCCA 91, 302 BCAC 30. Judge's misapprehension that accused had testified through interpreter constituted miscarriage of justice R v Ladue, 2011 BCCA 101, 302 BCAC 93. Applied s 718.2(e) of the Criminal Code (49) where Aboriginal offender breached long-term supervision order R v Vu, 2011 BCCA 112, 302 BCAC 187. Considered elements of actus reus for offence of kidnapping under s 279(1) of the Criminal Code (50) R v Daskalov, 2011 BCCA 169, 303 BCAC Immigration consequences not 191. relevant when sentencing offenders without legal status R v Parchment, 2011 BCCA 174, 304 BCAC Considered scope of s 684 of 60. the Criminal Code (51) T(RA) v British Columbia (Attorney An offender is "subject to a General), 2011 BCCA 263,  BCWLD sentence" under s 490.02 of 5426. the Criminal Code (52) when subject to a firearms ban R v Khan, 2011 BCCA 382, 311 BCAC 61. Commented on Vetrovec warning and evidentiary burden associated with third-party suspect defence Khela v Mission Institution (Warden), Provincial courts are not 2011 BCCA 450, 312 BCAC 217. restricted to narrow questions of jurisdiction in habeas corpus hearings R v Kokotailo, 2011 BCCA 465, 313 BCAC Considered jury instruction 91. to make "common sense inference" with respect to specific-intent offences R v Nguyen, 2011 BCCA 471, 313 BCAC Order of forfeiture under 114. Controlled Drugs & Substances Act (53) is property, not just a financial interest R v Foianesi, 2011 MBCA 33, 277 CCC Explained principles of (3d) 366. sentencing applicable to s 201.1 of the Criminal Code (54) R v Arganda (JR), 2011 MBCA 54, 275 Considered relevance of CCC (3d) 32. post-sentence criminal conduct in appeal of unfit sentence R v Roussin, 2011 MBCA 103, 275 Man R Strength of appeal is a (2d) 46. relevant consideration in application for interim judicial release SS v R, 2011 NBCA 75, 376 NBR (2d) Like Vuradin, above, also 146. expanded on standard for adequacy of reasons from R v W(D) (55) R v SLC, 2011 NLCA 19, 268 CCC (3d) Considered consistency of 542. acquittal on sexual assault and conviction on sexual exploitation on same facts R v WH, 2011 NLCA 59, 278 CCC (3d) Considered standard for 237. appellate court interference with jury decisions Re Jennifer Hart, 2011 NLCA 64, 281 Considered repeated CCC (3d) 530. substitution of counsel by criminal appellant on appeal R v Ryan, 2011 NSCA 30, 301 NSR (2d) Allowed defence of duress 255. where accused was abused for years by intended murder victim R v Aucoin, 2011 NSCA 64, 306 NSR (2d) Considered reasonableness of 20. search by officer giving ticket under Motor Vehicle Act (56) R v Deveau, 2011 NSCA 85, 308 NSR (2d) No need for respondent to 5. file pre-motion brief committing it to particular evidence for the motion R v RDR, 2011 NSCA 86, 307 NSR (2d) Youth Criminal Justice 319. Act (57) does not create special constitutional guarantee for young persons R v Jamieson, 2011 NSCA 122, 310 NSR Failure to consider (2d) 392. immigration consequences in sentencing may justify appellate interference R v Graham, 2011 ONCA 138, 268 CCC Considered challenge of (3d) 517. parole suspension by way of habeas corpus R v Craig, 2011 ONCA 142, 269 CCC (3d) Effect, rather than form, of 61. spousal abuse is relevant factor in sentencing for homicide of abusive spouse R v Nedelcu, 2011 ONCA 143, 269 CCC Considered admissibility of (3d) 1. evidence from related civil action in cross-examination of defendant Pierre v McRae, 2011 ONCA 187, 104 OR Explained coroners' (3d) 321. jurisdiction in relation to representativeness of inquest jury rolls R v MR, 2011 ONCA 190, 275 CCC (3d) Considered elements of 45. criminal negligence causing death with respect to principal offenders and parties R v Cole, 2011 ONCA 218, 105 OR (3d) Employees have diminished 253. reasonable expectation of privacy in work laptops; police require warrant to search even if employer has right of access R. v Rivera, 2011 ONCA 225, 104 OR Explained when roadside (3d) 561. statements may evidence actus reus under s 254(2) of the Criminal Code (58) R v KM, 2011 ONCA 252, 269 CCC (3d) Upheld DNA collection 461. provisions for young offenders under Criminal Code (59) ss 487.051(1) and (2) R v KC, 2011 ONCA 257, 105 OR (3d) 1. Interpreted serious violent offender designation under Youth Criminal Justice Act (60) R v Russell, 2011 ONCA 303, 104 OR Considered jurisdiction of (3d) 721. judges to set rates of pay for amicus curiae in criminal matters R v Roncaioli, 2011 ONCA 378, 271 CCC Clarified judicial approach (3d) 385. to determining appropriate sentence where basis of jury's verdict is ambiguous R v Kokopenace, 2011 ONCA 498,  Denied application for OJ No 3110. intervention by third party, but added as amicus curiae with ability to augment record R v Stevens, 2011 ONCA 504, 106 OR Considered application of s (3d) 241. 8 of the Charter (61) to search of gun cases found during warrantless search R v Kokopenace, 2011 ONCA 536, 107 OR Bifurcated appeal by (3d) 189. dismissing some issues while adjourning constitutional question, remaining seized R v Cunningham, 2011 ONCA 543, 106 OR Written reasons not (3d) 641. reflective of reasoning process when released 25 months after decision R v Kelsy, 2011 ONCA 605, 280 CCC (3d) Clarified limits of police 456. search powers during emergency response situations R v Woodward, 2011 ONCA 610, 107 OR Text messaging is a (3d) 81. "computer system" for the purposes of s 172.1(1)(c) of the Criminal Code (62) R v Borges, 2011 ONCA 621, 107 OR (3d) Interpreted s 131 of the 377. Provincial Offences Act (63) R v Rowe, 2011 ONCA 753, 281 CCC (3d) Enunciated functional 42. approach to jury instructions R v Parker, 2011 ONCA 819, 283 CCC All marijuana offences in (3d) 43. R v McCrady, 2011 ONCA 820, Controlled Drugs and 108 OR (3d) 550. R v Maloney, 2011 Substances Act (64) were in ONCA 821, 286 OAC 237. full force and effect in 2011 despite earlier judicial repeal of simple possession R v Bouvier, 2011 SKCA 87, 274 CCC Considered jurisdiction to (3d) 406. order assessment of offenders under s 723(3) of the Criminal Code (65) R v Trapp, 2011 SKCA 143, 377 Sask R Considered reasonable 246. R v Spencer, 2011 SKCA 144, 377 expectation of privacy in Sask R 280. information held by internet service providers Family Law and Procedure Scheffelmeier v Krassman, 2011 ABCA Considered effect of 64, 41 Alta LR (5th) 263. late financial disclosure on property tracing under the Matrimonial Property Act (66) Johnson v Johnson, 2011 BCCA 190, 100 Custodial parent's failure RFL (6th) 19. to apply for federal Child Tax Benefit irrelevant for calculating guideline support McCaffrey v Paleolog, 2011 BCCA 378, Interpreted s 19 of federal 310 BCAC 257. Child Support Guidelines (67) KD v ND, 2011 BCCA 513, 315 BCAC 12. Considered unique application of "material change in circumstances" under the Divorce Act (68) Grant v Grant, 2011 NBCA 113, 345 DLR Clarified timing scheme for (4th) 505. filing appeals under s 21(3) of the Divorce Act (69) Gosse v Sorensen-Gosse, 2011 NLCA 58, Considered division of 12 RFL (7th) 1. property under the Family Law Act (70) and issues related to child support Davies v Collins, 2011 NSCA 79, 307 Foreign marriage that NSR (2d) 288. would not be recognized domestically can revoke a Nova Scotia Will Gill v Hurst, 2011 NSCA 100, 309 NSR Resolved conflict between (2d) 86. Land Registration Act (71) a Matrimonial Property Act (72) Hayward v Hayward, 2011 NSCA 118, 311 Interpreted ss 8A and 19A of NSR (2d) 136. the Wills Act (73) Elgner v Elgner, 2011 ONCA 483, 105 OR Interim spousal support (3d) 721. order under the federal Divorce Act cannot be appealed as of right Ireland v Ireland, 2011 ONCA 623, 11 Children's Law Reform RFL (7th) 278. Act (74) operates independent Hague Convention on the Civil Aspects of International Child Abduction, 1980 (75) Immigration Law Jaballah v Canada (Citizenship Interpreted s 82.1(2) of the and Immigration), 2011 FCA 175, 419 NR Immigration and Refugee 395. Protection Act (76) Sellathurai v Canada (Public Safety Considered several issues and Emergency Preparedness), 2011 FCA under ss 87 and 87.1 of 223, 420 NR 235. Immigration and Refugee Protection Act (77) The Minister of Citizenship and Explained standard for Immigration v Rachidi Ekanza Ezokola, "complicity" under s 98 of 2011 FCA 224, 420 NR 279. Immigration and Refugee Protection Act (78) Canada (Public Safety and Emergency Considered proper forum for Preparedness) v Shpati, 2011 FCA 286, certain foreign nationals 423 NR 309. seeking to stay removal from Canada United States of America v Khadr, 2011 Extradition judge has ONCA 358, 106 OR (3d) 449. residual discretion to stay proceedings due to conduct of requesting state that does not affect the fairness of the extradition hearing United States of America v Beltran, Interpreted s 684 of the 2011 ONCA 775, 286 OAC 173. Criminal Code (79) in the context of appeals under the Extradition Act (80) Labour and Employment Law Watson v Alberta (Workers' Dispute Resolution and Compensation Board), 2011 ABCA 127, Decision Review Body has 502 AR 207. jurisdiction to reconsider its own decisions Globex Foreign Exchange Corporation v Clarified, in obiter, Kelcher, 2011 ABCA 240, 513 AR 101. several points relating to noncompetition covenants BC Teachers' Federation v BC Public Interpreted class size School Employers' Association, 2011 provisions of the British BCCA 148, 303 BCAC 130. Columbian School Act (81) Boehringer Ingelheim (Canada) Ltd/ Stated test for prima facie Ltee v Kerr, 2011 BCCA 266, 307 BCAC discrimination against 59. employees requesting return to work Communications, Energy and Evidence of existing problem Paperworkers Union of Canada, Local 30 in workplace is unnecessary v Irving Pulp & Paper Ltd, 2011 NBCA to justify mandatory alcohol 58, 375 NBR (2d) 92. testing if workplace is classified as inherently dangerous McLean v City of Miramichi, 2011 NBCA Interpreted s 17.91 of New 80, 380 NBR (2d) 398. Brunswick's Police Act (82) Taxation and Trusts Brick Protection Corporation v Alberta Interpreted "business of (Provincial Treasurer), 2011 ABCA 214, insurance" under provincial 510 AR 336. Insurance Corporations Tax Act (83) Ladner v Wolfson, 2011 BCCA 370, 310 Interpreted the test for BCAC 225. imposition of a good conscience trust as articulated in Soulos v Korkontzilas (84) Bozzer v Canada, 2011 FCA 186, 418 NR Interpreted s 220(3.1) of 377. Income Tax Act (85) Daishowa Paper Manufacturing Ltd v Affirmed characterization of Canada, 2011 FCA 267, 422 NR 108. reforestation liabilities as proceeds of disposition for purposes of Income Tax Act (86) CIBC World Markets Inc v Canada, 2011 Excise Tax Act (87) allows FCA 270, 423 NR 163. second claim for input tax credits concerning a taxation year using a different method Cassidy v Canada, 2011 FCA 271, 423 NR Interpreted s 40(2)(b) of 172. the Income Tax Act (88) Imperial Tobacco Canada Limited Employer may not deduct v Canada, 2011 FCA 308, 425 NR 88. payments to its employees made for surrendering options to acquire its shares Carter Brothers Ltd v New Brunswick, "Boom trucks" qualify as 2011 NBCA 81, 377 NBR (2d) 291. "special mobile equipment" under s 1 of New Brunswick Motor Vehicle Act (89) Town of Gander v Gander International, Section 17 of the Assessment 2011 NLCA 65, 342 DLR (4th) 477. Act (90) requires a municipal assessor to account special lease restrictions Tort and Insurance Law Howalta Electrical Services Inc v CDI Interpreted s 3(1)(c) of the Career Development Institutes Ltd, Alberta Tort-Feasors 2011 ABCA 234, 515 AR 163. Act (91) Christensen v Calgary (City), 2011 Considered the standard of ABCA 244, 513 AR 268. care under the Occupiers' Liability Act (92) for public inline skating paths Wormell v Insurance Corp of Interpreted "at a site" for British Columbia, 2011 BCCA 166, 303 the purposes of s 72 of the BCAC 177. Insurance (Vehicle) Regulation (93) Charlie v Canada Safeway Limited, 2011 Rejected argument that BCCA 202,  BCJ No 770. different standards of care apply to different hazards on an occupier's premises Hussack v Chilliwack School District Clarified application of No 33, 2011 BCCA 258, 306 BCAC 289. novus actus interveniens doctrine Neumann v Canada (Attorney General), Considered tort of negligent 2011 BCCA 313, 308 BCAC 179. investigation in context of search conducted by Canada Revenue Agency Waterman v IBM Canada Ltd, 2011 BCCA Considered deductibility of 337, 308 BCAC 304. pension benefits from award of damages for wrongful dismissal Moldovan v Republic Western Insurance Interpreted s 103 under Part Company, 2011 BCCA 418, 312 BCAC 39. 7 of Insurance (Vehicle) Regulation (94) Lafarge Canada Inc v JJM Construction Doctrine of tort immunity Ltd, 2011 BCCA 453, 312 BCAC 253. does not apply where tenant covenants to purchase its own insurance Raguin v Insurance Corporation of Massage therapy is a British Columbia, 2011 BCCA 482, 344 "treatment" under Insurance DLR (4th) 719. (Vehicle) Regulation (95) Northwest Atlantic Fisheries Considered extent to which Organization v Amaratunga, 2011 NSCA an international 73, 306 NSR (2d) 380. organization has immunity within Canada Burrell v Metropolitan Entertainment Considered duty of care owed Group, 2011 NSCA 108, 309 NSR (2d) by casino owners to gamblers 375. Ault v Canada (Attorney General), 2011 Considered duty of care owed ONCA 147, 274 OAC 200. by government employer to employees in relation to pension plan Paulsson v Cooper, 2011 ONCA 150, 105 Explained common law test OR (3d) 28. for assumed jurisdiction Wellington v Ontario, 2011 ONCA 274, No duty of care owed by 105 OR (3d) 81. police investigation unit to family of victim; duty owed to public as a whole Maccaroni v Kelly, 2011 ONCA 411, 106 Considered limits to actions OR (3d) 116. under OPCF 44R endorsements Agribrands Purina Canada Inc v Breach of contract does not Kasamekas, 2011 ONCA 460, 106 OR (3d) qualify as "unlawful 427. conduct" for tort of unlawful conduct conspiracy The Sovereign General Insurance Third party with sufficient Company v Walker, 2011 ONCA 597, 107 proximity to insurance claim OR (3d) 225. may give notice of claim to trigger coverage Smith v Inco Limited, 2011 ONCA 628, Clarified operation of 107 OR (3d) 321. Rylands v Fletcher (96) in tort Ontario Jeffery v London Life Insurance Interpreted ss 462 and 1031 Company, 2011 ONCA 683, 343 DLR (4th) of the Insurance Companies 6. Act (97) Lancer Enterprises Ltd v Saskatchewan Clarified correct test that Government Insurance, 2011 SKCA 28, an insurer must meet to Sask R 267. prove the defence of arson Bigstone v St. Pierre, 2011 SKCA 34, Considered minimum 371 366 Sask R 35. requirements for claims under the Saskatchewan Privacy Act (98) Prevost v Ali, 2011 SKCA 50, 371 Sask Internet research conducted R 166.
(1) SA 2003, c P-6.5.
(2) County of Grande Prairie No 1, revised by-law #2680, Land Use Bylaw, (11 January 2010).
(3) BC Reg 26/58.
(4) SC 1993, c 68.
(5) RSC 1985, c P-21.
(6) RSC 1985, c C-8.
(7) RSC 1985, c F-7.
(8) SN 2002, c A-1.1.
(9) SO 1996, c 2, Sched A.
(10) SO 2001, c 25.
(11) RSPEI 1988, c E-4.
(12) RSC 1985, c B-3.
(13) 2008 SCC 69, 301 DLR (4th) 80.
(14) RSC 1985, c 28 (1st Supp).
(15) Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
(16) SC 1960, c 44, Pt I, reprinted RSC 1970, App III.
(17) RSC 1985, c C-34.
(18) RSO 1990, c P.8.
(19) RSC 1985, c C-36.
(20) SO 2000, c 3.
(21) 2010 SCC 34,  2 SCR 273.
(22) SS 1988-89, c S-17.1.
(23) Alta Reg 390/68.
(24) RSA 2000, c A-41.
(25) BC Reg 221/90.
(26) RSBC 1996, c 250.
(27) SBC 2003, c 28.
(28) BC Reg 221/90.
(29) RSBC 1996, c 266, as repealed by the Limitation Act, SBC 2012, c 13, s 31.
(30) RSM 1987, c T10.
(31) NB Reg 82-73.
(33) RSNB 1973, c P-18.
(34) Supra note 31.
(35) NS Civ Pro Rules.
(36) SO 2001, c 28.
(37) RRO 1990, Reg 194.
(38) SPEI 1975, c 72.
(39) RSBC 1996, c 323.
(40) RSBC 1996, c 106.
(41) Charter, supra note 15.
(43) Supra note 18.
(44) SS 1996, c C-30.1, as amended by the Statutes of Saskatchewan, 1997, c.S-50.11; 2002,
c.16; 2004, c.L-16.1 and c.65; 2006 c.5 and 15; and 2008, c.4.
(45) RSC 1985, c C-46 [Criminal Code].
(47) RSA 2000, c Y-1.
(48)  1 SCR 742, 63 CCC (3d) 397 [W(D)].
(49) Criminal Code, supra note 45.
(53) SC 1996, c 19.
(54) Criminal Code, supra note 45.
(55) W(D), supra note 48.
(56) RSNS 1989, c 293.
(57) SC 2002, c 1 [YCJA].
(58) Criminal Code, supra note 45.
(60) YCJA, supra note 57.
(61) Charter, supra note 15.
(62) Criminal Code, supra note 45.
(63) RSO 1990, c P33.
(64) SC 1996, c 19.
(65) Criminal Code, supra note 45.
(66) RSA 2000, c M-8.
(67) BC Reg 61/98.
(68) RSC 1985, c 3 (2nd Supp).
(70) RSN 1990, c F-2.
(71) SNS 2001, c 6.
(72) RSNS 1989, c 275.
(73) RSNS 1989, c 505.
(74) RSO 1990, c C12.
(75) 25 October 1980, CTS 1983/35; 19 ILM 1501.
(76) SC 2001, c 27.
(79) Criminal Code, supra note 45.
(80) SC 1999, c 18.
(81) RSBC 1996, c 412.
(82) SNB 1977, c P-9.2.
(83) SA 1987, Ch 36.
(84)  2 SCR 217, 146 DLR (4th) 214.
(85) RSC 1985, c 1 (5th Supp) [Income Tax Act].
(87) RSC 1985, c E-15.
(88) Income Tax Act, supra note 85.
(89) SC 1999, c 18.
(90) RSNL 1990, c A-18, repealed by Assessment Act, 2006, SNL 2006, c A-18.1.
(91) RSA 2000, c T-5.
(92) RSA 2000, c O-4.
(93) BC Reg 447/83.
(96) (1866), LR 7 Ex 265, 4 Hurl & C 263 (Eng Exch).
(97) SC 1991, c 47.
(98) RSS 1978, c P-24.
(1) 2011 ONCA 358, 106 OR (3d) 449 [Khadr], leave to appeal refused,  SCCA No 316 (QL) (SCC).
(2) Ibid at para 52.
(3) Ibid at paras 53-58.
(4) Ibid at paras 44-45.
(5) Ibid at paras 7-27.
(6) United States of America v Khadr, 2010 ONSC 4338 at paras 150-51, 322 DLR (4th) 483.
(7) SC 1999, c 18 [Extradition Act].
(8) Khadr, supra note 1 at para 34.
(9) 1982, c 11 (UK), Schedule B [the "Charter"].
(10) Khadr, supra note 1 at para 40
(11) Ibid at para 46, citing United States of America v Cobb, 2001 SCC 19,  1 SCR 587.
(12) Ibid at para 47.
(13) Ibid at paras 44-45.
(14) 2011 ONCA 143, 269 CCC (3d) 1 [Nedelcu], rev'd 2012 SCC 59,  3 SCR 311.
(15) RSC, 1985, c C-5.
(16) Nedelcu, supra note 14 at paras 46-48.
(17) 2012 SCC 59 at para 35,  3 SCR 311.
(18) Nedelcu, supra note 14 at paras 4-9.
(19) Ibid at paras 10-12.
(20) Ibid at paras 15-20.
(21) 2005 SCC 76,  SCR 609.
(22) Nedelcu, supra note 14 at para 47.
(23) 2012 SCC 59, supra note 18 at para 9.
(24) Ibid at paras 17-18.
(25) 2011 ONCA 218, 105 OR (3d) 253.
(26) Ibid at para 45.
(27) Ibid at paras 47, 79.
(28) Ibid at paras 11-15.
(29) Ibid at para 1.
(30) Ibid at para 69.
(32) Ibid at paras 73-77.
(33) Ibid at para 94.
(34) R v Cole, 2012 SCC 53 at paras 66-79,  3 SCR 34.
(35) Ibid at paras 80-98, citing R v Grant, 2009 SCC 32,  2 SCR 353.
(36) Ibid at paras 87, 96.
(37) Ibid at para 97.
(38) 2011 SKCA 143, 377 Sask R 246 [Trapp].
(39) 2011 SKCA 144, 377 Sask R 280 [Spencer].
(40) Trapp, supra note 38 at paras 75-81.
(41) Ibid at para 49.
(42) Ibid at paras 64, 70.
(43) Ibid at para 136.
(44) Spencer, supra note 41 at para 14, citing SS 1990-91, c F-22.01.
(45) Ibid at para 33.
(46) Ibid at paras 45, 111.
(47) Ibid at paras 97-98.
(48) Matthew David Spencer v Her Majesty the Queen,  SCCA No 73 (QL) (SCC).
(49) 2011 ONCA 504, 106 OR (3d) 241.
(50) Ibid at 3-5.
(51) Ibid at 6-7.
(52) Ibid at paras 52, 58.
(53) Ibid at para 51.
(54) Ibid at para 47.
(55) Ibid at para 49.
(56) Ibid at para 64.
(57) 2011 ONCA 605, 280 CCC (3d) 456 [Kelsy].
(58) Ibid at paras 17, 20, citing R v Waterfield,  3 All ER 659 (CCA),  3 WLR 946.
(59) Kelsy, supra note 59 at para 58.
(60) Ibid at para 54.
(61) 2011 NSCA 64, 306 NSR (2d) 20 [Aucoin].
(62) Ibid at para 4, citing Motor Vehicle Act, RSNS 1989, c 293 ["MVA"].
(63) Aucoin, supra note 63 at para 98.
(64) Ibid at paras 26-27.
(65) Ibid at paras 2-11.
(66) Ibid at para 25, citing R v Collins,  1 SCR 265, 38 DLR (4th) 508.
(67) Ibid at paras 74-75.
(68) Ibid at para 79.
(69) Ibid at para 100.
(70) R v Aucoin, 2012 SCC 66 at paras 44 and 53,  3 SCR 408.
(71) Ibid at para 49.
(72) 2011 ONCA 187, 104 OR (3d) 321 [Pierre].
(73) Ibid at para 35.
(74) Ibid at paras 42-56.
(75) Ibid at para 1.
(76) Ibid at para 2.
(77) Ibid at para 19.
(78) Ibid at para 41, citing RSO 1990, c 37 [Coroner's Act].
(79) Ibid at para 42.
(80) RSO 1990, c J.3.
(81) Coroner's Act, supra note 80.
(82) Ibid at paras 51-54.
(83) Ibid at para 56.
(84) 2013 ONCA 389 at para 13, 115 OR (3d) 481 [Kokopenace].
(85) Ibid at para 2.
(86) Ibid at para 13.
(87) R v Kokopenace, 2011 ONCA 498 at para 3,  OJ No 3110 (QL).
(88) Ibid at para 6.
(89) R v Kokopenace, 2011 ONCA 536 at paras 61-64, 107 OR (3d) 189.
(90) Ibid at para 7.
(91) Kokopenace, supra note 87.
(92) Ibid at paras 215-23.
(93) Ibid at paras 159-88.
(94) Ibid at para 230.
(95) Ibid at paras 11, 205-12.
(96) Ibid at para 232.
(97) The Attorney General of Ontario, "First Nations Representation on Ontario Juries: Report of the Independent Review Conducted by The Honourable Frank Iacobucci" (February 2013), online: Attorney General of Ontario <http://www.attorneygeneral.jus.gov.on.ca/ englishabout/pubs/iacobucci/pdf/First_Nations_Representation_Ontario_Juries.pdf>
(98) Ibid at 1.
(99) SC 2002, c 1 [YCJA].
(100) 2011 NSCA 86, 277 CCC (3d) 357 [RDR], leave to appeal refused  SCCA No 515 (QL) (SCC).
(101) RSC, 1985, c Y-1 (repealed 2003).
(102) RDR, supra note 104 at para 14.
(103) Ibid at paras 3-4.
(104) Ibid at para 14.
(105) Ibid at para 12.
(106) 2011 ONCA 252, 269 CCC (3d) 461 [KM].
(107) Ibid at para 151.
(108) Ibid at paras 94-97.
(109) RSC, 1985, c C-46.
(110) KM, supra note 110 at paras 48-68.
(111) Ibid at paras 133-134.
(112) Ibid at para 121.
(113) 2011 BCCA 522, 353 DLR (4th) 620.
(114) Ibid at paras 21, 64.
(115) Ibid at paras 9-10.
(116) Ibid at paras 1-3.
(117) Ibid at para 18.
(118) Ibid at para 24.
(119) Ibid at para 21.
(120) Ibid at para 28.
(121) R v DJW, 2012 SCC 63 at para 1,  3 SCR 396.
(122) 2011 MBCA 54 at paras 47-50, 275 CCC (3d) 32 [Arganda].
(123) Ibid at paras 3-11.
(124) SC 2001, c 27, s 64(2) [IRPA].
(125) Arganda, supra note 127 at para 30.
(126) Ibid at para 48.
(127) Ibid at para 50.
(128) 2011 NSCA 122, 279 CCC (3d) 487.
(129) Ibid at para 8.
(130) Ibid at para 39.
(131) 2011 BCCA 169 at paras 26-31, 270 CCC (3d) 323.
(132) Ibid at para 29.
(133) Ibid at para 31.
(34) Ibid at para 45.
|Printer friendly Cite/link Email Feedback|
|Author:||Gibson, Marc; Sheffield, Kai|
|Publication:||University of Toronto Faculty of Law Review|
|Date:||Mar 22, 2012|
|Previous Article:||A tale of two section twenty-fours: towards a comprehensive approach for charter remedies.|
|Next Article:||Clashing laws: exploring the employment rights of undocumented migrants.|