36047  J.R. v. The Queen  (Criminal law – Burden of proof – Application of R. v. W. (D.))

On appeal from the judgment of the Court of Appeal for Quebec pronounced May 2, 2014.  The applicant was found guilty of sexual interference and invitation to sexual touching involving a minor in relation to acts committed between 2004 and 2006 with his stepson, who was 12 to 14 years old at the time.  At trial, the applicant testified to deny the abuse and offer explanations, while the complainant told the court that he had been subjected to acts of fellatio and masturbation several times a week.  Testimony from the complainant’s brother corroborated certain aspects of the complainant’s evidence.  The judge believed neither the applicant’s explanations nor the theory of revenge he advanced.  But he did believe the complainant’s version of the facts.  On appeal, the applicant argued, inter alia, that the trial judge had reversed the onus and had therefore failed to apply the principles laid down by this Court in W. (D.).  The Court of Appeal dismissed his appeal.

35924  Arbour v. Director of Public Prosecution, Attorney General of Québec  (Aboriginal rights — Hunting — Non-status Indians)

On appeal from the judgment of the Court of Appeal for Quebec pronounced April 4, 2014.  In October 2008, the applicant was intercepted by a game warden while hunting in a wildlife sanctuary located roughly 100 kilometers north of Gatineau, Quebec.  He was charged with hunting large game during a prohibited period, contrary to s. 56 of the Act Respecting the Conservation and Development of Wildlife, C.Q.L.R. c. C-61.1 (“the Act”) and the Regulation Respecting Hunting, C.Q.L.R. c. C-61.1, r. 12.  A non-status Indian, the applicant requested a stay of proceedings on the basis of his aboriginal heritage. Pursuant to s. 95 of the Code of Civil Procedure, C.Q.L.R. c. C-25, he also filed a Notice of Intention signaling his intent to seek a ruling that s. 56 of theAct is inapplicable to him by reason of his ancestral rights under s. 35 of the Constitution Act, 1982.  The applicant is a descendent of the Tsit-Kanaja Kaniengehaga, an Iroquoian people whose traditional territory was located in proximity to the Chaudière Falls which span the Ottawa River in the Ottawa/Gatineau area.  The applicant identifies as a member of the Tsit-Kanaja Kaniengehaga, a historic community that was evicted and disbanded in the 1800s.  That historic community, once disbanded, did not relocate as a group.  As an adult, the applicant took steps to create his own contemporary community within the wildlife sanctuary, an area to which he felt a spiritual attachment. The Court of Quebec found the applicant guilty of having hunted large game during a prohibited period and fined the applicant $1 825. The Superior Court of Quebec dismissed the appeal and the Court of Appeal dismissed the motion for leave to appeal.

36050  S.A. v. The Queen, et al.  (Charter of Rights –Trespass to Premises Act)

On appeal from the judgment of the Court of Appeal for Alberta pronounced June 10, 2014.  At trial, the applicant successfully argued that the trespass legislation and written transit Policy were unconstitutional and violated the applicant’s s. 7 Charter rights.  The Crown appealed, and the acquittal was set aside on the basis that the applicant’s s. 7Charter rights were not violated. The Court of Appeal dismissed the appeal.

36040  Pharmaprix Inc., et al. v. Régie de l’assurance maladie du Québec, et al.  and between  Sandoz Canada Inc., et al. v. Régie de l'assurance maladie du Québec, et al.  (Administrative law – jurisdiction – subpoenas)

On appeal from the judgment of the Court of Appeal for Quebec pronounced September 15, 2014.  As part of an investigation conducted by the Respondent Régie de l’assurance maladie du Québec (the “RAMQ”), the Applicants were served with subpoenae duces tecuminter alia for production of various documents and information.  The Applicants objected to parts of the information sought (the “Contested Information”) on the ground that the documents and information sought by the RAMQ fall outside of its jurisdiction because they relate to the Applicants’ extra-provincial activities.  A Motion to Institute Proceedings for Judicial Review, to Partially Quash Subpoenas Duces Tecum, for Declaratory Judgment, for a Stay and for Confidentiality Orders (the “Motion”) was accordingly filed by the Applicants.  Pending a decision on the merits of the Motion, the issue of whether the Applicants are required to act in accordance with the subpoenas is in dispute. Both parties have brought applications for leave to appeal to the Supreme Court of Canada.

35948  Wang v. British Columbia Medical Association (Canadian Medical Association - B.C. Division), et al.  (Torts – Libel and slander – Defence of qualified privilege)

On appeal from the judgment of the Court of Appeal of British Columbia pronounced April 30, 2014.  The applicant is a family physician who served as an elected member of the board of the British Columbia Medical Association (“BCMA”) from 1998 to 2008, including her final term as a member of the executive.  During this period she came to believe that the board was not sufficiently open and transparent in its decision-making process.  The rest of the board followed the traditional approach that after debate and decision, it would speak with one voice.  Her relationships with other board members became increasingly acrimonious between 2005 and 2008.  In particular, members of the board were concerned that the applicant had repeatedly revealed the content of their discussions that preceded the decisions they made, in contravention of the board’s Code of Conduct.  At a meeting in February 2008, the board decided by resolution to refer a complaint regarding the applicant to a Code of Conductcommittee. A letter signed by the respondent, Dr. Appleton, as president of the BCMA, was sent to its members on February 2, 2008, advising that the applicant's conduct was to be reviewed.  The applicant claimed that this letter was defamatory.  She sought compensatory and aggravated damages from the BCMA and a number of individual members of the executive, the board or the staff of the BCMA.  The applicant further sought declaratory relief in connection with the manner in which the complaint against her was handled.  The respondents relied on the defences of qualified privilege and fair comment. The Supreme Court of British Columbia dismissed the Applicant’s action for defamation but allowed the  Applicant’s claim for a declaration in part. The Court of Appeal for British Columbia dismissed the Applicant’s appeal.

36083  The Queen v. Al-Enzi  (Criminal law — Defence counsel)

On appeal from the judgment of the Court of Appeal for Ontario pronounced July 31, 2014.  The Respondent was charged jointly with Mr. Kazem for the murder of Mr. Zalal. A third accused was sentenced as an accessory after the fact to the murder and gave evidence implicating the applicant as the planner and shooter and Mr. Kazem as the driver of the car in which the murder took place.  The applicant implicated Mr. Kazem and claimed that he was at the Exhibition with his wife and then at a nightclub, when the murder took place.  Like the Crown, Mr. Kazem sought to convince the jury that the third accused was telling the truth. During the course of the trial, the applicant’s counsel was forced to withdraw.  He made it clear that this was not The applicant’s fault, although the judge inferred the applicant was directly or indirectly responsible.  An extensive search throughout Ontario for a new lawyer for the applicant was unsuccessful, as no experienced counsel was willing to continue the trial.  He did find counsel who was prepared to act, but only if the trial began again.  The applicant’s application to sever his trial from Mr. Kazem’s was unsuccessful. Amicus was appointed for the applicant.  The applicant continued to assert his right to counsel, but the judge found that this was trumped by the right of his co-accused and the Crown to have the trial continue before the same judge. Mr. Kazem was ultimately acquitted whereas the applicant was convicted.  However, his appeal was allowed, his conviction for first-degree murder was set aside and a new trial was ordered.

36111  Thompson v. The Queen  (Criminal law)

On appeal from the judgment of the Court of Appeal for Ontario pronounced July 11, 2014.  The applicant was convicted of possession of controlled substance for the purpose of importing cocaine into Canada and possession of a device intended to use in forging credit card data.  On appeal, the applicant relied on s. 15 of the Criminal Code for the proposition that the lower court did not have jurisdiction as he was in de facto possession of a sovereign power.  The appellate court dismissed the appeal, finding that there was no merit to the applicant’s argument.

36026  Bossé, et al. v. Financement Agricole Canada  (Real property – Mortgages – Summary judgment)

On appeal from the judgment of the Court of Appeal of New Brunswick pronounced November 27, 2013.  The applicants, together with Les Entreprises Envirotek Ltée, owe the respondent money after Envirotek defaulted on two loans that were secured by collateral mortgages.  The respondent asserted its rights of sale under the collateral mortgages and the properties were sold at auction.  The respondent then commenced an action to recover the deficiency owed on the loans after the mortgage sale.  The focus of most of the litigation is a series of documents the applicants themselves created and then forwarded to the respondent, pursuant to which they claim having made payment in full of all amounts due.  The documents purport to obligate the United States Treasury to pay certain sums of money that exceed the deficiency owed on the loans after the mortgage sale.  The applicants tendered these documents to the respondent and claimed that, by application of the Bills of Exchange Act, R.S.C. 1985, c. B-4, they have fulfilled their obligations to the respondent.  The documents were found to have no legal value and the applicants’ claims have repeatedly been dismissed.  On July 27, 2012, a judge of the Court of Queen’s Bench granted summary judgment in favour of the respondent on the grounds there was no defence to the action.  On April 4, 2013, the judge of the Court of Queen’s Bench delivered her reasons for ordering the applicants to pay the respondent the amount of $279,410 plus disbursement.  The applicants advanced numerous grounds of appeal challenging, among other things, the validity of certain legislation, the jurisdiction of the Court of Queen’s Bench, factual findings, the determination of questions of law, and the court’s application of the law to the facts.  The Court of Appeal dismissed the appeal and awarded costs to the respondent on a solicitor and client basis.

36020  Hughes v. Hughes  (Family law – Custody – Support – Child support)

On appeal from the judgment of the Court of Appeal for British Columbia pronounced May 27, 2014.  The father and mother were married in July, 2006 and separated in May, 2007.  Their only child was born on January 3, 2007.  The parties were involved in Canadian divorce proceedings and an interim order awarded them joint custody, with primary residence to the mother and generous access to the father.  The father exercised his access on a regular basis.  The interim order was varied to increase the father’s access on an unsupervised basis to include overnight visits.  On the day before the father was to have his first overnight access period, the mother fled to Italy with the child and has remained there ever since.  The mother did not comply with the order requiring her to return the child to British Columbia and she was subsequently found to be in contempt.  The trial of the divorce action proceeded with the mother participating from Italy by telephone.  The trial judge awarded the father sole custody with joint guardianship.  She also ordered the father to pay child support of $920 per month pending the return of the child to the father.  The mother refused to return the child.  The Italian trial and appellate courts denied the father’s application under the Hague Convention to have the child returned to Canada, on the basis that there existed a grave risk that the child’s return would expose her to physical or psychological harm. Subsequently, the mother obtained an order for custody from an Italian court.  The father stopped paying child support and applied to cancel his arrears and to vary the order requiring him to pay ongoing child support.  The mother sought orders calculating the amount of arrears, increasing the amount of child support, garnishment and committal of the father for contempt. The Supreme Court of British Columbia granted the father’s motion to cancel the child support arrears and continuing child support. The Court of Appeal dismissed the mother’s appeal.

36094  Lane v. A.G. Canada on behalf of the United States of America  (Criminal law – Extradition)

On appeal from the judgment of the Court of Appeal for Ontario pronounced June 30, 2014. The applicant is wanted in the United States to be prosecuted for serious child pornography charges:  engaging in a child exploitation enterprise, conspiracy to advertise the distribution of child pornography, and conspiracy to distribute child pornography.  He was arrested pursuant to an extradition provisional arrest warrant.  The materials in support of the application for the warrant made reference to an earlier search of the applicant’s residence.  At his extradition hearing, he challenged the validity of the search warrant and sought to have the seized items excluded as evidence.  While this Charter motion was under reserve, the Attorney General of Ontario brought a successful mutual legal assistance treaty application pursuant to ss. 17 and 20 of the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp) before a different Superior Court judge for a gathering and sending order authorizing it to send material seized pursuant to the Canadian search warrant to authorities in the United States.  The Charter motion was subsequently granted and defence counsel asked counsel for the Attorney General of Canada about the return of certain seized items.  It was then that counsel for the AG Canada told defence counsel that the seized material had been sent to the United States pursuant to a gathering and sending order.  In light of the Charter ruling, counsel for the AG Canada sought and obtained the seized material.  It was returned to Canada unopened.  The applicant brought an application to stay the extradition proceedings against him). The Ontario Superior Court of Justice ordered a stay. The Court of Appeal allowed the appeal, set aside the stay and remitted the matter to the Superior Court for a new extradition hearing.

36105  Minister of Justice, et al. v. Kouch  (Property – Forfeiture orders)

On appeal from the judgment of the Court of Appeal for Alberta pronounced June 30, 2014.  The respondent pled guilty to the production of marihuana in contravention of s. 7(1) of the Controlled Drugs and Substances Act, S.C. 1996, c-19.  Police found a three-stage marihuana grow operation consisting of 128 growing marihuana plants and grow operation equipment in the respondent’s basement which had been entirely converted for the production of marihuana. At sentencing, counsel for the respondent outlined that she was 63 years old, had no criminal record and had immigrated from Vietnam 30 years prior.  She was sentenced to a one-year conditional sentence with 24 hour house arrest for four months, a curfew for two months and no curfew for the remaining six months.  She is subject to a 10-year weapons prohibition, a secondary DNA order and was required to perform 30 hours of community service or make an equivalent charitable donation.  The Minister sought forfeiture of the house under ss. 19.8 and 19.94 of the Victim Restitution and Compensation Payment Act, S.A. 2001, c. V-3.5 on the basis that the property was used to carry out an illegal act that resulted in, was likely to result in, or was intended to result in the acquisition of other property, namely cash or in bodily harm.  The hearing judge declined to exercise her discretion to grant relief from forfeiture however, the Court of Appeal allowed the appeal finding that the evidence relating to the crop value was inadmissible.  The property disposal order was therefore vacated.

36025  572757 Alberta Ltd., Proland Corp. v. Sprague-Rosser Contracting Co. Ltd.  (Real property – Land registration – Caveats)

On appeal from the judgment of the Court of Appeal for Alberta pronounced May 29, 2014.  The respondent acquired lands from the applicants.  The purchase was conditional on the lands being subdivided, as they were into three lots.  The respondent intended to use the lands to build a shop, office and yard.  The purchase agreement required the respondent to comply with architectural controls attached as a schedule; submit copies of its plans for the applicants’ approval prior to commencing construction; and have “substantially completed the structural foundation(s) upon the Lands in accordance with the approved plans within twenty four (24) months”.  The applicants retained an option to repurchase the lands if substantial completion of the structural foundation was not achieved within the required period, and filed a caveat on title to protect that option.  No architectural controls were attached as a schedule to the agreement.  The respondent did not submit plans for a building or prepare structural foundations.  The respondent later sold two of the lots, and the applicants discharged their caveat from title to those lots.  When the respondent brought an application to remove the caveat from the third lot, the applicants challenged the application and later tried to exercise their option to purchase.  A Master of the Alberta Court of Queen’s Bench allowed the application, finding that the agreement did not contain an obligation on the respondent to construct a building.  Since the irrevocable option to repurchase only arose if the respondent started but did not complete construction within the specified period, the conditions subsequent triggering the right to repurchase did not materialize.  On appeal, a Judge of the Alberta Court of Queen’s Bench held that the interpretation of the Master was correct.  Even if there had been an obligation on the respondent to build, the contract as originally agreed upon had become impossible to enforce and was therefore frustrated.  The Alberta Court of Appeal dismissed the appeal.

36063  Goldentuler v. Mercedes-Benz Canada Inc., et al.  (Civil procedure – Pleadings – Summary judgments)

On appeal from the judgment of the Court of Appeal for Ontario pronounced May 5, 2014.  The applicant purchased a Mercedes-Benz motor vehicle in 2008 and brought it into two different dealerships to have the brakes inspected because they were making a noise.  He considered that the estimates he received for the cost to replace the disc/rotors were very high.   He did some research and determined that he was being quoted the price for high-end carbon-ceramic brake disc/rotors.  However, his vehicle could be fitted with regular metal brake disc/rotors, which were significantly less expensive.  One of the dealerships fit the vehicle with the steel brake disc/rotors at a cost of $1,952.93 but the brakes continued to make an excessive squealing noise.  The vehicle was returned for further servicing but the noise persisted.  In November, 2009, he was advised by one dealership that the driver’s side brake disc/rotor had been “out of round” and was replaced under warranty.  The brakes no longer made a noise.  In March, 2010, the applicant took his vehicle to a local garage where it was discovered that the front wheel bearing was loose and the brake disc/rotor was warped.  The mechanic suggested that the loosening of a wheel bearing was a method used by some unscrupulous mechanics to compensate for noise coming from a warped brake disc/rotor.  When the wheel bearing was subsequently tightened, the brakes continued to make an excessive squealing noise.  The applicant commenced an action against the two dealerships, the service managers, the mechanics and Mercedes-Benz Canada Inc., claiming damages for breach of contract and negligence.  In addition, he alleged the respondents conspired to avoid replacing a defective brake rotor, making the vehicle unsafe.  He claimed $2,000 in special damages, and $1 million in punitive, exemplary and aggravated damages.  The respondents brought a motion to dismiss the action in whole or in part.  The Ontario Superior Court of Justice granted the motion for summary judgment in part and struck portions of the applicant’s statement of claim. The Court of Appeal dismissed the applicant’s appeal.