36328 Ali Hassan Saeed v. Her Majesty the Queen (Charter of Rights and Freedoms – Search and seizure – Criminal law)

On appeal from the judgment of the Court of Appeal of Alberta. Mr. Saeed was arrested and charged with sexual assault and sexual interference. At the police station, he was compelled to swab his penis for DNA testing while an officer watched. The police officers’ intent was to test the swab for the complainant’s DNA. The police did not obtain a warrant. DNA on the swab matched the complainant. In the trial proceedings, the admissibility of the DNA evidence and the identification of Mr. Saeed as the assailant were in issue. The Court of Queen’s Bench for Alberta entered convictions for sexual assault causing bodily harm and sexual interference. The Court of Appeal of Alberta dismissed the appeal.

35982 Joseph Ryan Lloyd v. Her Majesty the Queen (Canadian Charter of Rights and Freedoms – Criminal law – Mandatory minimum sentences – Cruel and unusual treatment or punishment)

On appeal from the judgment of the Court of Appeal for British Columbia. The applicant was convicted of possession of drugs for the purpose of trafficking. He had a recent prior conviction for a similar offence and was subject to a mandatory minimum sentence of imprisonment for one year pursuant to s. 5(3)(a)(i)(D) of the Controlled Drugs and Substances Act (hereinafter the CDSA). The applicant challenged the constitutional validity of s. 5(3)(a)(i)(D) of the CDSA. The trial judge ruled that the mandatory minimum sentence required by s. 5(3)(a)(i)(D) of the CDSA constituted cruel and unusual punishment contrary to s. 12 of the Charter; it was not a reasonable limit within the meaning of s. 1 of theCharter and was declared of no force and effect. The Court of Appeal allowed the Crown’s appeal, set aside the declaration and increased the sentence imposed.

36167 Jessica Ernst v. Alberta Energy Regulator (Charter of Rights – Constitutional law – Enforcement)

On appeal from the judgment of the Court of Appeal of Alberta. The applicant owns land near Rosebud, Alberta. She brought an action against: i) EnCana Corporation for damage to her water well and the Rosebud aquifer allegedly caused by its construction, drilling, hydraulic fracturing and other activities in the area; ii) Alberta Environment and Sustainable Resource Development, claiming it owes her a duty to protect her water supply and had failed to address her complaints about EnCana; and iii) the respondent regulator, for “negligent administration of a regulatory regime” related to her claims against EnCana. She brought a further claim for damages against the regulator under s. 24(1) of the Charter for alleged breaches of her s. 2(b) Charter rights. She alleges that from November, 2005 to March 2007, the Board’s Compliance Branch refused to accept further communications from her through the usual channels for public communication until she agreed to raise her concerns only with the Board and not publicly through the media or through communications with other citizens. She submits the respondent infringed her s. 2(b) Charter rights both by restricting her communication with it and by using those restrictions to punish her for past public criticisms and prevent her making future public criticisms of the respondent.

The respondent brought an application to strike paragraphs from the Statement of Claim or grant summary judgment in its favour. The Court of Queen’s Bench of Alberta granted the application and struck out the applicant’s negligence andCharter claims. While the Court held that the Charter claims were not doomed to fail and did disclose a cause of action, it held that the courts were precluded from considering the claims by the statutory immunity provision in the Energy Resources Conservation Act, R.S.A. 2000, c. E-10. The Alberta Court of Appeal dismissed the appeal.

36124 Johnny Mennillo v. Intramodal Inc. (Commercial law – Corporations – Action in oppression)

On appeal from the judgment of the Quebec Court of Appeal. In July 2004, Mario Rosati incorporated the respondent Intramodal Inc. under the Canada Business Corporations Actafter discussions with the applicant, his friend Johnny Mennillo. The two men agreed that the applicant would finance the company and Mr. Rosati would contribute his expertise. In the company’s books, there is a resolution appointing both men as directors. In addition, the common shares were shared in a proportion of 51/49 in favour of Mr. Rosati.

On May 25, 2005, Mr. Mennillo resigned from his position as director and officer of Intramodal. The reasons given for his resignation are contradictory. The parties also have different interpretations of the scope of the resignation. Intermodal began operations in December 2009, and Mr. Mennillo continued to advance money to keep the company running smoothly. By the time this venture ended, he had advanced a total of $440,000. This amount was paid back to him from July 2006 to December 2009. According to the applicant, when the last payment was made, he learned that he was no longer a shareholder in Intramodal. Believing that Intramodal and Mr. Rosati had unduly and illegitimately deprived him of his status, he filed an action in oppression against Intramodal.

The Superior Court dismissed the action. Poirier J. found that Mr. Mennillo held 49 common shares on condition that he guarantee all of Intramodal’s debts. He refused to do so and asked to withdraw from the company as shareholder and director, effective May 25, 2005, while agreeing to be no more than a lender to his friend Mr. Rosati. A majority of the Court of Appeal dismissed the appeal. The dissenting judge would have declared that Mr. Mennillo was still a shareholder in the company.