APPEAL ALLOWED

R. v. Antic, 2017 SCC 27 (Constitutional law — Charter of Rights — Right not to be denied reasonable bail without just cause)

On appeal from the Court of Appeal for Ontario (2015 ONSC 6593) declaring s. 515(2)(e) of the Criminal Code unconstitutional and granting the accused judicial interim release.

A was arrested and charged with several drug and firearms offences. He was denied release at his bail hearing, and sought review of the detention order. The bail review judge declined to vacate the order, indicating that he would have released A if he could have imposed both a surety and a cash deposit as release conditions. However, s. 515(2)(e) of the Criminal Code permits a justice of the peace or judge to require both a cash deposit and surety supervision only if the accused is from out of the province or does not ordinarily reside within 200 km of the place in which he or she is in custody. As an Ontario resident living within 200 km of the place in which he was detained, A did not meet these criteria. A brought a subsequent bail review application, challenging the constitutionality of s. 515(2)(e). The bail review judge found that since the geographical limitation in s. 515(2)(e) prevented him from granting bail on the terms that he deemed appropriate, the provision violated the right not to be denied reasonable bail without just cause under s. 11(e) of the Charter. He severed and struck down the geographical limitation in s. 515(2)(e) and ordered A’s release with a surety and a cash deposit of $100,000.

Held (9-0): The appeal should be allowed. Section 515(2)(e) of the Criminal Code is constitutional.

The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system. It entrenches the effect of the presumption of innocence at the pre‑trial stage of the criminal trial process and safeguards the liberty of accused persons. This right has two aspects: a person charged with an offence has the right not to be denied bail without just cause and the right to reasonable bail. Under the first aspect, a provision may not deny bail without “just cause” — there is just cause to deny bail only if the denial occurs in a narrow set of circumstances, and the denial is necessary to promote the proper functioning of the bail system and is not undertaken for any purpose extraneous to that system. The second aspect, the right to reasonable bail, relates to the terms of bail, including the quantum of any monetary component and other restrictions that are imposed on the accused for the release period. It protects accused persons from conditions and forms of release that are unreasonable.

While a bail hearing is an expedited procedure, the bail provisions are federal law and must be applied consistently and fairly in all provinces and territories. A central part of the Canadian law of bail consists of the ladder principle and the authorized forms of release, which are found in s. 515(1) to (3) of the Criminal Code. Save for exceptions, an unconditional release on an undertaking is the default position when granting release. Alternative forms of release are to be imposed in accordance with the ladder principle, which must be adhered to strictly: release is favoured at the earliest reasonable opportunity and on the least onerous grounds. If the Crown proposes an alternate form of release, it must show why this form is necessary for a more restrictive form of release to be imposed. Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. Where the parties disagree on the form of release, it is an error of law for a judge to order a more restrictive form without justifying the decision to reject the less onerous forms. A recognizance with sureties is one of the most onerous forms of release, and should not be imposed unless all the less onerous forms have been considered and rejected as inappropriate. It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court. A recognizance is functionally equivalent to cash bail and has the same coercive effect. Cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable. When cash bail is ordered, the amount must not be set so high that it effectively amounts to a detention order, which means that the amount should be no higher than necessary to satisfy the concern that would otherwise warrant detention and proportionate to the means of the accused and the circumstances of the case. The judge is under a positive obligation to inquire into the ability of the accused to pay. Terms of release under s. 515(4) should only be imposed to the extent that they are necessary to address concerns related to the statutory criteria for detention and to ensure that the accused is released. They must not be imposed to change an accused person’s behaviour or to punish an accused person. Where a bail review is requested, courts must follow the bail review process set out in R. v. St‑Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328.

In the instant case, s. 515(2)(e) of the Criminal Code did not have the effect of denying A bail — it was the bail review judge’s application of the bail provisions that did so. The bail review judge committed two errors in fashioning A’s release order. First, by requiring a cash deposit with a surety, one of the most onerous forms of release, he failed to adhere to the ladder principle. Even though A had offered a surety with a monetary pledge, the bail review judge was fixated on and insisted on a cash deposit because he believed the erroneous assumption that cash is more coercive than a pledge. Second, the bail review judge erred in making his decision on the basis of speculation as to whether A might believe that forfeiture proceedings would not be taken against his elderly grandmother if he breached his bail terms. A judge cannot impose a more onerous form of release solely because he or she speculates that the accused will not believe in the enforceability of a surety or a pledge. Parliament expressly authorized the possibility of an accused being released on entering into a recognizance with sureties in the place of cash bail, and judges should not undermine the bail scheme by speculating, contrary to any evidence and to Parliament’s intent, that requiring cash will be more effective.

Given that s. 515(2)(e) did not have the effect of denying A bail, it cannot be concluded that this provision denies him bail without just cause. Thus, the first aspect of the s. 11(e) Charter right is not triggered. As to the second aspect of the s. 11(e) right, it does not need to be addressed because, properly interpreted, s. 515(2)(e) does not apply to A and cannot therefore authorize an unreasonable form of release in his case. Had the bail review judge applied the bail provisions properly, A could have been granted reasonable bail. Accordingly, the bail review judge’s declaration of unconstitutionality should be reversed and the cash‑plus‑surety release ordered should be replaced with a cash‑only release under s. 515(2)(d) on the same terms as those previously imposed, since A has already posted the cash deposit. Reasons for judgment: Wagner J. (McLachlin C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown and Rowe JJ. concurring)

Neutral Citation: 2017 SCC 27

Docket Number: 36783

https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16649/index.do

APPLICATIONS FOR LEAVE TO APPEAL GRANTED

37381

Town of Lorraine, Regional County Municipality of Thérèse‑de‑Blainville v. 2646‑8926 Québec inc. (Que.)

Municipal law – By‑law – Validity – Excess of jurisdiction

On July 7, 1989, the respondent 2646‑8926 Québec inc. paid $1,286,000 to purchase land in a residential zone of the applicant Town of Lorraine. In 1991, the Town passed a by‑law (by‑law U‑91, replaced in 2010 by by‑law URB‑03) that changed the zoning for 60% of the respondent’s land in order to create a conservation zone, thereby preventing any residential development on that part of the land. In late 2001, the respondent’s majority shareholder learned of the by‑law and discovered that the applicant had put in some infrastructures for hiking and cross‑country skiing on part of its land, including culverts, stairs, fences and public benches. After contacting the Town, which refused to amend its by‑law, the respondent brought an action in nullity against the by‑law in November 2007, seeking damages and the removal of the infrastructures. It also brought an action in nullity against by‑law 10‑02 of the applicant Regional County Municipality of Thérèse‑de‑Blainville, which implemented a development plan that also changed the zoning for the respondent’s land. The Court of Appeal allowed the appeal.

APPLICATIONS FOR LEAVE TO APPEAL DISMISSED

37435

Helene Carter, Edmond Blais and Donald Givogue v. Intact Insurance Company (Ont.)

Insurance – Property insurance – Replacement cost endorsement

When the applicants’ income property (a mix of one, two and three storey buildings containing 15 residential units and 13 commercial units) sustained substantial damage in a fire, the applicants decided to demolish the entire site and build an eight and a half storey condominium. Intact Insurance Co, which insured the buildings, refused to pay replacement cost on the grounds that the condominium was not “of like kind and quality’, so was not a “replacement”. The applicants commenced construction, but sued Intact for replacement cost and, under their building by-law coverage, for an amount for building code upgrades. They then brought a motion under r. 21 of the Rules of Civil Procedure to determine the coverage issues.

The motion for a declaration that the applicants were entitled to coverage was dismissed, as was the applicants’ appeal.

37370

Krassimir D. Naydenov v. Commission des relations du travail, Syndicat du personnel professionnel de l’Université du Québec en Abitibi-Témiscamingue (SPPUQAT), Claude Fortin, Claude-Michel Bouchard, Lina Dallaire, Francine Tremblay and Yves Bergeron (Que.)

Labour relations – Civil procedure – Union

A complaint was filed late with the Commission des relations du travail (Commission) by Krassimir Naydenov, who alleged that the Syndicat du personnel professionnel de l’Université du Québec en Abitibi‑Témiscamingue had breached its duty of representation by ignoring a complaint he had allegedly made. The Syndicat brought a motion to dismiss. The Commission dismissed Mr. Naydenov’s complaint. The Superior Court held that Mr. Naydenov’s claim was unfounded. The Court of Appeal denied leave to appeal.

37447

SEIU-West v. Cypress Regional Health Authority, Five Hills Regional Health Authority, Heartland Regional Health Authority, Saskatoon Regional Health Authority and Saskatchewan Association of Health Organizations - and between - Saskatchewan Government and General Employees' Union v. Saskatchewan Health Care Association, Keewatin Yatthe Regional Authority, Mamawetan Churchill River Health Authority and Kelsey Trail Health Authority, Government of Saskatchewan (Ministry of Health) - and - Saskatchewan Labour Relations Board, Canadian Union of Public Employees (Sask.)

Labour Relations – Collective Bargaining – Administrative law

The Saskatchewan Association of Health Organizations represented provincial Regional Health Authorities in collective bargaining that began in 2008. SEIU-West and the Saskatchewan Government and General Employees’ Union represented some employees. An amendment in 2008 to the Trade Union Act, RSS 1978, c. T-17, introduced into that Act words stating that “nothing in this Act precludes an employer from communicating facts and its opinions to its employees”. During bargaining, the Saskatchewan Association of Health Organizations issued communications. The unions filed unfair labour practice applications. The Labour Relations Board held that the association distributed inaccurate information about a retroactive pay issue in breach of the Act but otherwise dismissed the applications. It issued an order enjoining the association and the Regional Health Authorities from further violating the Act. The unions applied for judicial review. The Court of Appeal allowed the appeals in part.

37437

Henry Majebi, Daisy Oyieamed Sulemajebi, Marian Omonigho Sulemajebi, Chantel Rechia Sulemajebi v. Minister of Citizenship and Immigration (FC)

Immigration – Convention refugee – Exclusion

In 1993, Mr. Majebi, a citizen of Nigeria, moved from Nigeria to Italy, where he met his wife, Ms. Okolo. Their three children were born in Italy and the United Kingdom, but are citizens of Nigeria and no other country. The family arrived in Canada via the United States, and claimed refugee protection on the grounds that they fear persecution in Nigeria and Italy. On June 25, 2014, the Refugee Protection Division denied refugee status on the grounds that they had residency status substantially similar to that of Italian nationals: s. 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and Article 1E of the United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969, No. 6. They all appealed to the Refugee Appeal Division, arguing that their residency had been incorrectly assessed at the time of the hearing. In support, they sought to adduce new evidence, including evidence that, between the hearing and the decision, Mr. Majebi had lost his permanent resident status in Italy because he had been absent from Italy for 12 consecutive months, and that the children’s temporary resident permits, which were predicated on their parents’ status, had also been lost.

The Appeal Division refused to admit the new evidence on the grounds that it either repeated evidence already in the record or had been available well before the claim was decided. It allowed Ms. Okolo’s appeal, but dismissed the appeal concerning Mr. Majebi and the children on the grounds that their status was substantially similar to that of Italian nationals at the time of the Refugee Protection Division’s decision. Mr. Majebi and the children applied for judicial review. The Federal Court dismissed Mr. Majebi’s application, but certified questions for appeal. The Federal Court of Appeal dismissed Mr. Majebi’s further appeal.

37438

Lanny K. McDonald v. Brookfield Asset Management Inc., Brookfield Special Situation Partners Ltd. and Hammerstone Corporation (Alta.)

Judgments and orders – Summary judgment – Commercial law

Birch Mountain Resources Limited was a publicly traded company focussed on developing a limestone quarry. However, it had financial trouble from the outset, and eventually lost the quarry in receivership proceedings despite the involvement of Brookfield Asset Management Inc., Brookfield Special Situations Partners Ltd. and Hammerstone Corporation (collectively, the “Brookfield parties”). The Brookfield parties provide capital and financial and operating experience to companies which have both business potential and business challenges, with a view to eventual profit. After the receivership proceedings were brought to a close, the shareholders attempted to start an action in Ontario. That action was stayed as having no real and substantial connection to Ontario (Bond v. Brookfield Asset Management Inc., 2011 ONSC 2529, aff’d 2011 ONCA 730), but was continued in Alberta with Mr. McDonald, a director and shareholder of Birch Mountain, as the potential representative plaintiff in a potential class action. Before an application could be heard to certify a class proceeding, a motion for summary dismissal was brought by the Brookfield parties. The demise of Birch Mountain can be traced to a number of financial transactions and events, including the default on interest payments on convertible debentures issued to certain of the Brookfield parties.

Strekaf J. dismissed the action finding that Mr. McDonald had not presented sufficient evidence to substantiate any of his claims. The Court of Appeal dismissed an application to submit new evidence and Mr. McDonald’s appeal.

37376

Steven Nowack v. 2363523 Ontario Inc. (Ont.)

Charter of Rights and Freedoms – Principles of fundamental Justice

On September 16, 2015, 2363523 Ontario Inc. obtained default judgment against Mr. Nowack for $3,000,000 for fraud, conversion, and breach of fiduciary duty. The judgment ordered Mr. Nowack to provide an accounting within 30 days. Mr. Nowack gave undertakings in subsequent proceedings. On November 26, 2015, 2363523 Ontario Inc. brought a motion for contempt arguing that Mr. Nowack had failed to comply with the judgment and the undertakings. Mr. Nowack was ordered to attend a judgment debtor examination and to comply with the judgment and undertakings. He did not answer the undertakings nor did he provide the required accounting. The matter returned before the motions judge who found Mr. Nowack in contempt of court. Upon sentencing, he found Mr. Nowack had failed to purge the contempt and he sentenced Mr. Nowack to 30 days in custody. The Court of Appeal dismissed the appeal.

37487

Wally Dove v. Her Majesty the Queen (FC)

Charter of Rights – Fundamental justice – Judgments and orders

On the respondent’s motion for summary judgment, the Prothonotary struck the applicant’s action without leave to amend on the basis that his action and those of his co-plaintiffs disclosed no cause of action and were bereft of any chance of success. The Court of Appeal dismissed the Applicant’s appeal.

37473

Avondale Stores Limited and Dimtsis Dentistry Professional Corporation v. Crombie Property Holdings Limited (Ont.)

Limitation of actions ‒ Discoverability ‒ Summary judgment

In 2012, the respondent, Crombie Property Holding Limited, offered to purchase a commercial plaza located at 150, Main St. East, in Grimsby, Ontario. As part of a transaction involving the acquisition of 22 commercial properties, the purchase was subject to various terms and conditions including a condition regarding the satisfaction of the purchaser as to the environmental state of the property. Before proceeding with the purchase, the respondent hired an environmental consulting firm to assist with the environmental due diligence. A report, delivered by the firm on March 20, 2012, identified potential contamination of the property by a historic gas station of the adjacent property owned by the applicant Dimtsis Dentistry Professional Corporation and formerly owned by the applicant Avondale Stores Limited. The report recommended a second environmental site assessment to evaluate soil and groundwater conditions for volatile organic compounds and hydrocarbon contamination. After waiving all conditions including the environmental one on March 8, 2012, the respondent proceeded with the purchase of the properties which was completed on April 10, 2012. On May 9, 2012, a draft of the report regarding the second phase of the environmental assessment was provided to the respondent where the test results showed that petroleum hydrocarbons in certain soil and groundwater samples exceeded the Ministry of the Environment site conditions standards. On April 28, 2014, the respondent commenced an action for damages as a result of the contamination by petroleum hydrocarbons of soil and groundwater at the property located in Grimsby against the applicants. The Court of Appeal allowed the appeal.

37393

100193 P.E.I. Inc., 100259 P.E.I. Inc., 100412 P.E.I. Inc., Robert Arsenault, Joseph Aylward, Wayne Aylward, B & F Fisheries Ltd., Bergayle Fisheries Ltd., James Buote, Bullwinkle Fisheries Ltd., C.D. Hutt Enterprises Ltd., Cody-Ray Enterprises Ltd., Dallan J. Ltd., Richard Blanchard, Executor of the estate of Michael Deagle, Pamela Deagle, Bermard Dixon, Clifford Doucette, Fishing 2000 Inc., Kenneth Fraser, Free Spirit Inc., Terrance Gallant, Bonnie Gaudet, Devin Gaudet, Norman Gaudet, Peter Gaudet, Rodney Gaudet, Taylor Gaudet, Gavco Fishing Enterprises Ltd., Casey Gavin, Jamie Gavin, Leigh Gavin, Sidney Gavin, Gray Lady Enterprises Ltd., Donald Harper, Harper's Fish Holdings Ltd., Jamie Hustler, Carter Hutt, Kista B Fishing Co. Ltd., Launching Fisheries Inc., Terry Llewellyn, Ivan MacDonald, Lance MacDonald, Wayne MacIntyre, David McIsaac, Gordon L. MacLeod, Donald Mayhew, Mega Fish Co. Ltd., Austin O'Meara, Pamela Richards and Tracey Gaudet, Administrators of the estate of Patrick Rochford, Twin Connections Inc., W.F.M. Inc., Waterwalker Fishing Co. Ltd. and Boyd Vuozzo v. Her Majesty the Queen (FC)

Judgments and orders – Summary judgments – Property

The individual applicants are residents of Prince Edward Island. They have held licences to fish snow crab for all or part of the last 12 years. The corporate applicants are companies that operate or have operated fishing enterprises of some of the individual applicants.

The applicants sought compensation for loss they say they suffered as a result of the Minister of Fisheries and Ocean’s conduct in managing the snow crab fishery since 2003 which resulted in the reduction of each licence holder’s share in total allowable catch. In their action, the applicants claimed damages for breach of fiduciary duty, negligence, expropriation without compensation, breach of contract, unjust enrichment and misfeasance in public office.

The respondent, Crown moved for summary judgment. The Federal Court granted that motion in part. At the Federal Court of Appeal, the Crown submitted that the Federal Court should have granted summary judgment on all issues. The appeal was allowed in part. The claims founded on expropriation and unjust enrichment were dismissed. But the claim for misfeasance in public office was found to raise a genuine issue for trial.

37488

Velle Chanmany v. Her Majesty the Queen (Ont.)

Criminal law – Defences

The police seized seven kilograms of methamphetamine from the applicant’s car. At trial, he denied possession of the drugs and argued that the police must have planted them. The trial judge rejected the applicant’s argument. After a trial before a judge alone, the applicant was convicted of one count each of possession of methamphetamine for the purpose of trafficking and possession of the proceeds of crime. The Court of Appeal dismissed the appeal from conviction.

37465

David Styles v. Alberta Investment Management Corporation (Alta.)

Administrative law ― Appeal ― Standard of review

Mr. Styles moved from Ontario to Alberta in 2010 to take up a position with the Alberta Investment Management Corporation as an investment manager. His employment was governed by a written employment contract which provided for a base salary plus potential bonuses. Mr. Styles could potentially earn bonuses well in excess of his base salary under the Annual Incentive Plan or the Long Term Incentive Plan. Mr. Styles was terminated in 2013 from his employment with the Corporation “without cause”. The issue in this case is whether Mr. Styles is entitled to any payment or bonus under the employer’s Long Term Incentive Plan. The Court of Queen’s Bench awarded Mr. Styles $444,205 in damages. The Court of Appeal allowed the appeal and dismissed Mr. Styles’ action.

37500

Her Majesty the Queen in Right of Ontario v. Jason Clive Walters by his Litigation Guardian, Pearline Samuda, Pearline Samuda (Ont.)

Crown law – Crown liability – Tort – Inmates

In 2004, a cross-disciplinary committee struck by the Ministry of Community Safety and Correctional Services made several recommendations in respect of housing persons involved or affiliated with gangs or terrorist groups. No formal policy or protocol was ever implemented by the Ministry, but various institutions introduced policies on almost an ad hoc basis. In July 2008, the Toronto Jail (the “Don Jail”) began numerical balancing of members of the Security Threat Group (“STG”). That group was largely made up of gang members. Where possible, members of the same gang were to be dispersed throughout the jail and housed on separate units. When Mr. Walters was admitted, the Admitting and Discharge Manager placed Mr. Walters based only on numerical balancing. He considered the type of STG the inmates represented and other factors to be outside his mandate. Mr. Walters’ Offender Tracking Information System (“OTIS”) record informed the Admitting and Discharge Department staff of Mr. Walters’ membership in a gang called the Malvern Crew, but did not contain a non-association alert.

The Malvern Crew was engaged in an ongoing turf war with “the Galloway Boyz”. One of the other inmates housed on the unit Mr. Walters was assigned to was either the leader or a senior functionary of the Galloway Boyz. He was charged with attempted murder of a member of the Malvern Crew. His OTIS record also provided his gang affiliation but no non-association alert. On the evening of November 19, 2008, Mr. Walters was attacked and severely beaten. After the beating, an inmate summoned a custodial officer. Mr. Walters was hospitalized in an acute care facility until early May 2009, then remained at the Toronto Rehabilitation Institute for 16 further months. He suffers from permanent brain damage, hemiplegia and acute aphasia.

The trial judge awarded damages to Mr. Walters and Pearline Samuda, minus 15 per cent for contributory negligence. The Court of Appeal dismissed the appeal.

37478

Apotex Inc. v. AstraZeneca Canada Inc., AstraZeneca AB and Aktiebolaget Hässle (FC)

Intellectual property – Patents – Medicines

The respondents (collectively, “Astra”) are the owners of the 693 Patent for omeprazole, a medicine useful in the treatment of gastrointestinal diseases. Omeprazole was discovered to be a difficult pharmaceutical ingredient to formulate as it has low solubility and is very acid and moisture sensitive. Astra’s solution in the 693 Patent was to finely balance the incompatibility between alkalinity necessary for acceptable storage stability and the preservation of the enteric coating necessary for good gastric acid resistance. Astra commercialized the preparation under the brand name, Losec. Apotex sought to work around the 693 Patent and thought it had successfully done so by employing a different process than the one covered by Claim 17 and described in the disclosure of the 693 Patent. In January 2004, Apotex received a Notice of Compliance from Health Canada to market its generic version of the drug. Astra’s scientists conducted tests on Apotex’s version of the drug and established that its preparation of omeprazole had a core containing omeprazole and an alkaline reacting compound, an outer enteric coat and a subcoat containing an inert layer of polymeric film as a barrier between the core and the enteric coat. Apotex’s subcoat was formed by a chemical reaction between the enteric coating and the core when the enteric coating was applied during manufacture. In Astra’s omeprazole product, the subcoating was applied to the core. Astra brought an action for patent infringement and Apotex counterclaimed, claiming that the 693 was invalid on a number of grounds. The Court of Appeal allowed Apotex’s appeal in part and dismissed AstraZeneca’s counterclaim.