36726 Her Majesty the Queen v. Marlin Vandermeulen

(Man.) 

Charter of Rights and Freedoms – Right to trial within reasonable time – Whether Court of Appeal erred in imposing a stay of proceedings as the remedy for a breach of s. 11(b) of the Charter

Mr. Vandermeulen was charged with several offences. The last charge was laid on February 27, 2010. A preliminary inquiry began on November 22, 2011. On January 14, 2013, Mr. Vandermeulen brought a motion to stay proceedings for unreasonable delay in breach of s. 11(b) of the Charter of Rights and Freedoms. The trial judge dismissed the motion. Mr. Vandermeulen’s trial began on February 26, 2013 and ended on March 4, 2013. The trial judge convicted Mr. Vandermeulen of four counts of assault, assault causing bodily harm, sexual assault causing bodily harm and uttering threats. He appealed his convictions. The Court of Appeal held that the trial judge erred in her Charter analysis. It held that post-charge delay breached s. 11(b) of the Charter and the minimal remedy wasto stay proceedings.

36994 Robert Kenneth Power v. Her Majesty the Queen

(Sask.)

Criminal law – Defences – Self-defence – Use of force 

The applicant, Constable Power, is a police officer who push-kicked the complainant in the abdomen in the process of arresting him. The force of the kick bounced the complainant backwards and he hit his head on the cement. Constable Power testified that he kicked Mr. Stonechild to defend himself and he believed Mr. Stonechild was going to hit him. The applicant was convicted of assault causing bodily harm contrary to s. 267(b) of the Criminal Code by the trial judge. The appeal was allowed by the summary conviction appeal judge and an acquittal was entered. The majority of the Court of Appeal granted leave to appeal and restored the conviction. Caldwell J.A., dissenting, would have held that the defence of self-defence was made out on the proper application of the law to the facts as found by the trial judge. He would have ordered an acquittal on the charge of assault causing bodily harm.

36978 S.B.E. v. Her Majesty the Queen

(Alta.)

Criminal law – Charter – Did lower courts err in convicting applicant and in imposing a lengthy sentence?

The applicant was convicted following a trial by judge sitting alone of one count of sexual assault and two counts of sexual interference. The indictment covered the time period between July 2003 and July 2004 when complainant, with whom the applicant was in a position of trust, was less than 9 years old. Count 1 (sexual assault) alleged multiple acts of partial penile/vaginal penetration. Count 2 (sexual interference) alleged multiple acts of vaginal fondling. Count 3 (sexual interference) alleged that on multiple occasions the applicant had the complainant masturbate him to ejaculation. The sentencing judge declined to sentence him as a dangerous offender, but declared him a long term offender. The applicant was sentenced to 16 ½ years in prison. With a five and half year credit for the 31 months he had spent in protective custody, he was sentenced to eleven years, and was required to serve at least half his sentence before applying for parole. The Court of Appeal of Alberta dismissed both the appeal from conviction and the sentence appeal.

37006 Keehong Song, Seungdoe Song v. B.C. Human Rights Tribunal

(B.C.)

Civil Procedure – Appeals – Standing

The applicants had filed a human rights complaint against a golf course on the basis that they were denied access to the golf club due to their race or ethnic origin. The Human Rights Tribunal dismissed the complaint. The applicants started the underlying action where they sought damages and other relief against the golf club. They did not name the Tribunal as a party. However, their pleading claimed that the Tribunal engaged in misconduct. The Tribunal applied to strike those portions of the applicants’ claim and the chambers judge allowed the application. Donald J.A. allowed the application in part. The Court of Appeal dismissed the appeal.

36868 Sarah Cheung v. Canadian Transportation Agency, Westjet Airlines

(FC) 

Human rights – Duty to accommodate – Air travel

The applicant has spinal muscular atrophy and experienced certain difficulties in travelling between Vancouver, British Columbia and Honolulu, Hawaii in May, 2012. She uses a wheelchair with a removable custom orthotic positioning device (“OPD”) to support her body without which she could not sit upright without extreme discomfort. During flights, she also requires an attendant to assist her with her medication and personal care. The respondent, Westjet Airlines, refused to allow her to use her OPD during the international flight and to provide one extra seat, free of charge, for one attendant. She applied the Canadian Transportation Agency pursuant to s. 172(1) of the Canada Transportation Act, S.C. 1996, c. 10, as amended, to determine whether there was an undue obstacle to the mobility of a person with a disability. If not permitted the use of her OPD, Ms. Cheung sought three seats free of charge – two seats for two attendants and one additional seat to allow her to lie down. The Agency ruled that the refusal to permit the applicant to use her OPD constituted an undue obstacle to her mobility. The Agency also ruled that no corrective measures were required and that the one-person, one-fair principle should not be expanded to international routes. The Federal Court of Appeal dismissed the applicant’s application for leave to appeal.