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2011 year in review: constitutional developments in Canadian criminal law.

      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
      i. Expectations of digital privacy in child pornography cases
      ii. Limitations on searches that are incidental to other
        law enforcement duties
      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


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.


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)


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)


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)

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

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

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, [2012] 4 FCR      and Telecommunications
231.                                     Commission has statutory
                                         power to establish a "value
                                         for signal" regime in

Public Mobile Inc v Canada (Attorney     Considered control in fact
General), 2011 FCA 194, [2011] 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

Aguas v Rivard Estate, 2011 ONCA 494,    Expanded on Reid test for
107 OR (3d) 142.                         setting aside Registrar's
                                         administrative dismissal

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)

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

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, [2013] 1 FCR 117.          intellectual property claims
                                         can be brought by
                                         application or only by

Attorney General of Canada v Almalki,    Common law informer
2011 FCA 199, [2012] 2 FCR 594.          privilege does not apply to
                                         Canadian Security
                                         Intelligence Services human

2127423 Manitoba Ltd o/a London Limos    Considered definition of
v Unicity Taxi Ltd et al, 2011 MBCA      "person" under Taxicab
45, [2011] 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

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

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

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

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

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


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

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

R v Sue, 2011 BCCA 91, 302 BCAC 30.      Judge's misapprehension that
                                         accused had testified
                                         through interpreter
                                         constituted miscarriage of

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

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, [2011] 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

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

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

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, [2011]    Denied application for
OJ No 3110.                              intervention by third party,
                                         but added as amicus curiae
                                         with ability to augment

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

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

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

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

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

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

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

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, [2011] 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

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

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

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.

Appendix Footnotes

(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, [2010] 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.

(32) Ibid.

(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.

(42) Ibid.

(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].

(46) Ibid.

(47) RSA 2000, c Y-1.

(48) [1991] 1 SCR 742, 63 CCC (3d) 397 [W(D)].

(49) Criminal Code, supra note 45.

(50) Ibid.

(51) Ibid.

(52) Ibid.

(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.

(59) Ibid.

(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).

(69) Ibid.

(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.

(77) Ibid.

(78) Ibid.

(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) [1997] 2 SCR 217, 146 DLR (4th) 214.

(85) RSC 1985, c 1 (5th Supp) [Income Tax Act].

(86) Ibid.

(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.

(94) Ibid.

(95) Ibid.

(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, [2011] 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, [2001] 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, [2012] 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, [2012] 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, [2005] 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.

(31) Ibid.

(32) Ibid at paras 73-77.

(33) Ibid at para 94.

(34) R v Cole, 2012 SCC 53 at paras 66-79, [2012] 3 SCR 34.

(35) Ibid at paras 80-98, citing R v Grant, 2009 SCC 32, [2009] 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, [2012] 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, [1963] 3 All ER 659 (CCA), [1963] 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, [1987] 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, [2012] 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, [2011] 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 < 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 [2011] 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, [2012] 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.
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