36244 Troy Ryan v. Her Majesty the Queen (Criminal law – Driving “over 80” – Evidence)

On appeal from the Quebec Court of Appeal. Mr. Ryan, the applicant, was convicted of operating a motor vehicle while the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood.  During oral argument at trial, Mr. Ryan argued that the prosecution could not rely on the presumption of identity in s. 258(1)(c) of theCriminal Code because the time limits specified in that section had not been met.  The trial judge refused to deal with Mr. Ryan’s argument on the ground that it had been raised late. The Superior Court dismissed the appeal and the Court of Appeal dismissed the motion for leave to appeal.

36349 Marilyn Juel Shaw v. Her Majesty the Queen (Charter of Rights – Right to equality)

On appeal from the Court of Appeal of Alberta. Ms. Shaw pleaded guilty to six offences arising out of divorce proceedings:  carrying a concealed weapon; disobeying a lawful court order; obstructing justice by falsifying a court order; criminal harassment; uttering a forged document; and fraud.  She signed an Agreed Statement of Facts which supported the pleas.  Ms. Shaw, who was self-represented on appeal sought to vacate her guilty pleas on the basis they were not voluntary and each of the two counsel that represented her in the court below were ineffective or incompetent.  The Court of Appeal declined to grant leave to set aside the guilty pleas and dismissed the conviction appeal.

36261 Her Majesty the Queen v. A M (Criminal law – Youth – Evidence)

On appeal from the Quebec Court of Appeal. After some parents of students gave him information indicating that the respondent, then aged 13, was selling drugs, the school principal asked her to come into his office with him so he could question her.  After twice denying that she had sold drugs, the respondent made an incriminating statement.  During her trial on three counts of possession of and trafficking in narcotics, the incriminating statement made by the respondent to the principal was found inadmissible in evidence.  In the trial judge’s opinion, the principal had to be considered a person in authority within the meaning of s. 146 of the Youth Criminal Justice Act (“YCJA”). Therefore, since the requirements of s. 146(2)(b) to (d) YCJA had not been met, such as the duty of the person in authority to clearly explain to the young person that she was under no obligation to make a statement, to inform her that any statement made by her could be used as evidence against her and to explain to her that she had the right to consult counsel and a parent, relative or adult of her choice, the respondent’s statement was inadmissible.  The Court of Appeal dismissed the appeal.

36275 9026-2981 Québec Inc. v. Commission des droits de la personne et des droits de la jeunesse, et al. (Human rights – Right to equality – Right to dignity)

On appeal from the Quebec Court of Appeal. On July 5, 2006, four friends of Haitian origin went to the applicant’s licensed bar.  Although the first doorman allowed them to enter the bar without identifying themselves, a second doorman came and demanded that each man present two identification documents.  One of the four men, Suffrad Dagobert, aged 38, did not have his wallet and was therefore unable to comply with that demand, so he was denied access to the bar.  The men protested the doorman’s refusal but ended up leaving. The four men filed a complaint against the bar with the Commission des droits de la personne et des droits de la jeunesse.  They argued that the second doorman’s decision concerning them amounted to racial profiling that had the effect of interfering with their right to have access to a public place without distinction based on race.

The Human Rights Tribunal allowed the application in part.  The judge concluded that the four men had been victims of racial profiling, which had impaired their right to have equal access to a public place (ss. 10 and 15 of the Charter of human rights and freedoms) and their right to the safeguard of their dignity (s. 4 of the Charter).  The judge found that, in accordance with art. 1463 C.C.Q., the liability of the owner of the bar was fully engaged.  The owner and the applicant were therefore ordered to pay each complainant $3,000.  The Court of Appeal allowed the appeal in part, finding that the owner of the bar did not have to personally pay damages because he had not committed any personal fault and he was not the employer or principal of the doorman at fault within the meaning of art. 1463 C.C.Q.

36174 Sudesh Mangal, et al. v. William Osler Health Centre, et al.  (Torts – Negligence – Medical malpractice)

On appeal from the court of Appeal for Ontario. On the morning of February 16, 2004, Ms. Mangal underwent an elective caesarean section with Dr. Chandran, at the William Osler Health Centre.  The operation was uneventful and she was transferred to the Post-Anaesthetic Care Unit at approximately 9:30 a.m.  The nurse observed that she was stable, conscious and with normal vital signs.  The amount of postpartum bleeding that she was experiencing was also normal.  As instructed by the anaesthesiologist the nurse notified him when Ms. Mangal’s systolic blood pressure reading fell below 90.  He ordered the administration of Pentaspan and went to check on Ms. Mangal at 12:30 p.m.  Her blood pressure had stabilized and no bleeding was observed at the incision site.  A few minutes later, the nurse became concerned that Ms. Mangal had started bleeding more excessively and she called for Dr. Girvitz, the obstetrician on duty.  He examined Ms. Mangal and found that she was not actively bleeding, was alert and responsive and had normal colour.  He ordered, inter alia, a complete blood count and to have two units of blood sent over.  Shortly afterward, Ms. Mangal’s blood pressure dropped dramatically.  A blood transfusion and a coagulation study were also ordered.  Dr. Chandran and Dr. Girvitz decided that Ms. Mangal had to go back into surgery as she had also developed a clotting disorder.  The medical team removed her uterus, noting that it was soft, a common cause of post-partum haemorrhaging.  Her blood pressure continued to drop and she began to bleed profusely, causing her heart to fail and her death.  The plaintiffs maintained that the cause of death was intra-abdominal bleeding that was left untreated for most of the day that developed into the clotting disorder.  The physicians’ position that her death was caused by a blockage in her lung, an Amniotic Fluid Embolism, that prevented blood from flowing to the left side of her heart. The trial judge agreed with the physician and dismissed the action. The Court of Appeal dismissed the appeal.

36237 Michael Erin Briscoe v. Her Majesty the Queen (Charter of Rights and Freedoms – Right to counsel)

On appeal from the Court of Appeal for Alberta. The applicant was charged with murder.  He was acquitted at trial. After appeals to both the Alberta Court of Appeal (2008 ABCA 327), and the Supreme Court of Canada (2010 SCC 13), the applicant was retried for the murder.  A voir dire was held into the admissibility of the applicant’s statements to RCMP investigators in April 2005.  The judge stated that the RCMP officer did not place the applicant in a position of having to participate in any non-routine procedure (he did not provide a DNA sample); the applicant understood the jeopardy he was facing; and, he also understood his s. 10(b) Charter rights.  The holding out did not result in the RCMP breaching the applicant’s s. 10(b) Charter rights.  The judge held that the applicant’s s. 10(b) Charter rights had not been violated and his statements to RCMP officers were admissible at trial.  The applicant was convicted of kidnapping, sexual assault and first degree murder.  His conviction appeal was dismissed.

36324 Steven Tonner v. Real Estate Council of Ontario, Allan Johnson, Anita John and Bruce Jackson (Charter of Rights and Freedoms — Constitutional law — Fundamental justice )

On appeal from the Court of Appeal for Ontario. Mr. Tonner was a licensed real estate salesman for twenty years when he became the subject of disciplinary proceedings before the Real Estate Council of Ontario (“RECO”).  The panel found him guilty of professional misconduct and he was ordered to pay a penalty of $5,000.  He sought to appeal the order and also applied before a justice of the peace to have summonses issued against the respondents for allegedly breaching theReal Estate and Business Brokers Act.  The appeal was dismissed and the penalty upheld.  The respondents applied to quash the summonses. A justice of the peace quashed the summonses. The Ontario Court of Appeal allowed the appeal in part but upheld the quashing order.

36302 Anna Dibiase v. Michele Dibiase (Civil procedure – Summary judgment – Limitation periods)

On appeal from the Court of Appeal for Ontario. The application for leave to appeal concerns a civil action involving a 1988 deed, which the applicant, Anna Dibiase, alleges that she did not sign and which created a fraudulent conveyance of land from Anna Dibiase and her late husband to her late husband's brother, the respondent, Michele Dibiase.  Ms. Dibiase claimed that the forged deed resulted in an instrument that is void and a nullity.  She sought declaratory relief in order to return title of the subject property to her own name, as well as $5,000,000 under various heads of damages.  By virtue of the forged deed, Ms. Dibiase submitted that she had been deprived of ownership of one-half of the property for which she did not receive any consideration from Michele, who was unjustly enriched by his wrongful act.  Ms. Dibiase admitted on examination that in early 2004 she discovered the existence of the 1988 deed.  She brought it to a lawyer who advised her that it was a fraud, however she did not commence her action until March 3, 2009. On a motion for summary judgment, Michele maintained that the action was statute barred.  He also submitted there was no genuine issue requiring a trial because Ms. Dibiase suffered no damages.  In that regard, she had retained a lawyer in 1996 to give effect to an agreement whereby she and her late husband transferred their interest in the property that is the subject of the 1988 deed.  According to Ms. Dibiase’s evidence, she understood and agreed that the purpose of the 1996 transfers was to correct and clarify any issues raised by the 1988 deed.  The 1996 conveyance was not challenged.

The Ontario Superior Court of Justice allowed the motion for summary judgment finding the onus to show that there is no genuine issue requiring a trial had been met.  The Ontario Court of Appeal dismissed the applicant’s appeal.