We use cookies on this site to enable your digital experience. By continuing to use this site, you are agreeing to our cookie policy. close
Focus On
NEW In-House Counsel | Insurance | Intellectual Property | Immigration | Natural Resources | Real Estate | Tax

Digests

Latest

Thursday, March 23, 2017 @ 8:00 PM

Criminal Law - Compelling appearance, detention and release - Arrest - Without a warrant - Reasonable and probable grounds

Appeal by the accused, Quilop, from a conviction for possession of cocaine for the purpose of trafficking. Police received an anonymous tip the accused was involved in cocaine trafficking. No further details were provided regarding the accused or the informant’s past involvement with police, if any. Police placed the accused under surveillance and observed interaction with another individual suspected of drug trafficking based on a similarly undetailed uncorroborated tip. The following day, police observed the accused have brief meetings with two individuals. After the first meeting, the individual exited the accused’s vehicle after two minutes carrying an object the size of a baseball. The second meeting involved the accused enter and exit an apartment carrying a small pouch. Police arrested the accused hours later, seizing 30 bags of cocaine and crack cocaine, cash and cell phones in an incidental search. The trial judge determined police had reasonable and probable grounds to believe the accused had committed an indictable offence. The arrest was ruled lawful and the accused was convicted. The accused appealed. ... [read more]

Thursday, March 23, 2017 @ 8:00 PM

Criminal Code offences - Offences against person and reputation - Motor vehicles - Impaired driving or driving over the legal limit

Appeal by the Crown from the acquittal of the accused, McLachlan, for impaired driving. The accused was arrested after she failed a roadside impaired driving test. She provided two breath samples at the detachment indicating a blood-alcohol level of approximately twice the legal limit. The breath samples were taken more than two hours after the accused’s arrest due to delays at the detachment. In accordance with normal practice, the qualified breath technician required the accused to stand on a scale in order to provide her weight. Knowledge of the accused’s weight aided a toxicologist in forming an expert opinion that no bolus drinking had occurred. The trial judge found that the police action of requiring the accused to stand on a scale constituted an illegal search that breached her s. 8 Charter rights. The evidence was excluded pursuant to s. 24(2) of the Charter, resulting in the accused’s acquittal. The Crown appealed. ... [read more]

Thursday, March 23, 2017 @ 8:00 PM

Environmental Law - Environmental assessments - Canadian Environmental Assessment Act - Decisions of Governor in Council - Aboriginal issues - Traditional uses and traditional environmental knowledge

Appeal by The Prophet River First Nation and the West Moberly First Nations from a decision denying their application for judicial review of a decision by the Governor in Council (GIC). The appellants were British Columbia Treaty 8 First Nations. BC Hydro purported to take up Treaty 8 lands for the Site C Clean Energy Project (Site C Project), a hydroelectric dam on the Peace River. The GIC’s decision deemed that although the Site C Project would likely cause significant adverse environmental effects, including adverse effects on the Aboriginal peoples use of lands and resources for traditional purposes, these effects were justified in the circumstances pursuant to s. 52(4) of the Canadian Environmental Assessment Act (CEAA). The Site C Project was issued federal authorization to proceed by Order in Council. On judicial review, the judge found that the Crown had met its duty to consult and accommodate and that there was no requirement on the part of the GIC to determine the appellants’ treaty rights and whether the Site C Project unjustifiably infringed their treaty rights under s. 35(1) of the Constitution Act. The appellants submitted that the judge erred in applying a reasonableness standard of review, in concluding that the GIC was not required to determine treaty rights, and in concluding that a judicial review was not the appropriate forum to determine the appellants’ treaty rights and whether they had been infringed. ... [read more]

Thursday, March 23, 2017 @ 8:46 AM

BARRISTERS AND SOLICITORS - Representation - Disqualification or removal of counsel - Relationship with client - Conflict of interest - Duty to former client - Lawyer joining another firm

Appeal by the defendants from an order allowing the plaintiff’s appeal from the refusal to remove counsel for two of the defendant insurers, Chartis Insurance Company and American Home Assurance Company,  based on an alleged conflict of interest. The respondent, the Province of Ontario, sued the appellants as a result of an insurance coverage dispute. Ontario was represented by an outside law firm. One of the lawyers at the firm, Foulds, who had been working closely with senior counsel to Ontario on the dispute, moved to the firm representing the appellants and was working closely with counsel for the appellants. Counsel for the two parties discussed the apparent conflict before Foulds took up his new position. An ethical screen was implemented at the law firm representing the appellants, which included all of the measures suggested by the Law Society Guidelines. Those measures included Foulds having no involvement in the action, or discussing the action with lawyers in the new firm, and being physically and electronically segregated from the file. Foulds and the appellants' lawyers and staff involved in the coverage dispute gave undertakings to comply with the terms of the screen. In addition, a senior partner in the firm was appointed to supervise the screen. Ontario continued to oppose counsel for the appellants continuing to act. Ontario argued that despite the ethical screen, there was a possibility of inadvertent disclosure due to the close working relationship between the lawyers at issue in the context of working at a small law firm. The appellants brought a motion for a declaration that the ethical screen was sufficient to prevent disclosure of the respondent's confidential information and that it was in the interests of justice that they continue to act. The respondent brought a cross-motion for the removal of appellants’ counsel. The motion judge concluded the appellants’ counsel had been pro-active in minimizing the risk of disclosure of confidential information and that the ethical screen was comprehensive. He found that it was in the interests of justice to allow the appellants’ counsel to continue to act. Ontario appealed. The Divisional Court overturned the decision and disqualified the appellants’ firm from continuing to act. The appellants appealed, arguing that the Divisional Court applied the wrong test. ... [read more]

Thursday, March 23, 2017 @ 8:45 AM

HEALTH CARE PROFESSIONALS - Doctors - Government of - Disciplinary proceedings - Findings - Professional incompetence - Penalties - Revocation or cancellation of membership

Appeal by a doctor from an order of the College finding him guilty of displaying an unfitness to practice medicine and the cancellation of his licence to practice medicine. For many years, the doctor was licenced to practice medicine in Manitoba and he maintained a general practice. In the 1990s, he was found guilty of professional misconduct and unfitness to practice after the College had received numerous complaints from his patients and received rewritten charts from the doctor, which he claimed were original. He was ordered, among other things, to use software which complied with the College’s guidelines for security of medical computer systems. In 2013, the College conducted a chart audit of the doctor’s practice. The audit could not determine which medical record system the doctor was using and found he appeared to be billing for psychotherapy sessions that were not evident in his records and was not keeping records of medications prescribed. In response, the doctor provided a peer analysis of his practice, which was critical of the audit report and praised the doctor and his practice. The College requested the names of the individuals who were involved in its preparation and the doctor responded that he was unable to provide the names on the basis that they were anonymous. During an interview with the Investigation Chair of the College, the doctor misrepresented who was consulted about the audit report, what information they were provided and how the peer analysis was prepared. He eventually admitted that he was sole author of the peer analysis. As a result of the audit and subsequent investigation, the College initiated several counts of professional misconduct, as well as one count of displaying an unfitness to practice. The doctor pleaded guilty to the four counts of professional misconduct, but disputed the allegation of having displayed an unfitness to practice medicine. The Panel found that the doctor made numerous misrepresentations with the intent to cause the College to cease its investigation, that he had installed the required software, but it had degraded and he had not taken steps to install new software until the College intervened, and that he had not maintained adequate records. The Panel concluded that those failures reflected serious problems relating to proper medical practice and patient care. It concluded that the doctor was ungovernable. Given the seriousness of the doctor’s behavior, his prior disciplinary record and the lack of evidence of his rehabilitative potential, the Panel cancelled the doctor’s licence and registration. The doctor appealed, arguing that the finding of unfitness to practice and the cancellation of his licence and registration were unreasonable. At the hearing of his appeal, the doctor sought to admit fresh evidence consisting of a number of documents relating to the computer system he had been using in his practice and the changes he had made to it after he was investigated by the College. ... [read more]

Wednesday, March 22, 2017 @ 9:09 AM

ENVIRONMENTAL ASSESSMENTS - Canadian Environmental Assessment Act - Decisions of Governor in Council - Aboriginal issues - Traditional uses and traditional environmental knowledge

Appeal by The Prophet River First Nation and the West Moberly First Nations from a decision denying their application for judicial review of a decision by the Governor in Council (GIC). The appellants were British Columbia Treaty 8 First Nations. BC Hydro purported to take up Treaty 8 lands for the Site C Clean Energy Project (Site C Project), a hydroelectric dam on the Peace River. The GIC’s decision deemed that although the Site C Project would likely cause significant adverse environmental effects, including adverse effects on the Aboriginal peoples use of lands and resources for traditional purposes, these effects were justified in the circumstances pursuant to s. 52(4) of the Canadian Environmental Assessment Act (CEAA). The Site C Project was issued federal authorization to proceed by Order in Council. On judicial review, the judge found that the Crown had met its duty to consult and accommodate and that there was no requirement on the part of the GIC to determine the appellants’ treaty rights and whether the Site C Project unjustifiably infringed their treaty rights under s. 35(1) of the Constitution Act. The appellants submitted that the judge erred in applying a reasonableness standard of review, in concluding that the GIC was not required to determine treaty rights, and in concluding that a judicial review was not the appropriate forum to determine the appellants’ treaty rights and whether they had been infringed. ... [read more]

Wednesday, March 22, 2017 @ 9:07 AM

ELEMENTS OF THE OFFENCE - Mens rea - Insanity or mental disorder - Finding of not criminally responsible - Knowledge of wrongfulness

Appeal by the accused, Sualim, from dismissal of his application for a not criminally responsible (NCR) declaration. The accused was convicted of five counts of robbery and theft over $5,000 in connection with a string of armed robberies. Following the convictions, an NCR hearing was conducted on various dates in 2013 and 2014. Two forensic psychiatrists testified. They agreed the accused suffered from a major mental illness, that he experienced psychotic symptoms in the days preceding the robberies, that his behaviour was goal-directed at the time of the offences, that he was able to appreciate the nature and consequences of his actions, and that he knew his actions were legally wrong. The two experts disagreed on whether the accused knew his actions were morally wrong. In each instance, the experts based their respective conclusions on the accused's divergent statements during their interviews. The trial judge attributed no weight to the expert evidence, as they were based on the accused's hearsay self-reporting. The judge accordingly concluded the defence failed to meet the onus of establishing the accused was NCR at the time of the offences. The judge subsequently declined to re-open the hearing after being advised of an agreement between counsel that the hearsay aspects of the psychiatric evidence were admissible. The accused appealed. ... [read more]

Tuesday, March 21, 2017 @ 7:44 AM

CRIMINAL CODE OFFENCES - Offences against person and reputation - Motor vehicles - Impaired driving or driving over the legal limit

Appeal by the Crown from the acquittal of the accused, McLachlan, for impaired driving. The accused was arrested after she failed a roadside impaired driving test. She provided two breath samples at the detachment indicating a blood-alcohol level of approximately twice the legal limit. The breath samples were taken more than two hours after the accused's arrest due to delays at the detachment. In accordance with normal practice, the qualified breath technician required the accused to stand on a scale in order to provide her weight. Knowledge of the accused's weight aided a toxicologist in forming an expert opinion that no bolus drinking had occurred. The trial judge found that the police action of requiring the accused to stand on a scale constituted an illegal search that breached her s. 8 Charter rights. The evidence was excluded pursuant to s. 24(2) of the Charter, resulting in the accused's acquittal. The Crown appealed. ... [read more]

Tuesday, March 21, 2017 @ 7:43 AM

CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Protection against self-incrimination, right to silence - Right to retain and instruct counsel without delay

Appeal by the accused, Hamilton, from conviction for offences related to a robbery. The accused was arrested shortly after the robbery of a Rogers Wireless store. He was placed in a police cruiser and read his rights. The accused indicated a desire to speak to duty counsel. The officer continued to question the accused. The accused's first statement gave an exculpatory explanation regarding his whereabouts just prior to the robbery. He stated he was on a bus with a woman named Sasha. At the detachment, the accused had a brief conversation with duty counsel. Approximately 90 minutes later, police interviewed the accused and advised him of his right to silence, but did not mention that any prior statement should not affect his decision to speak with police. The accused's second statement gave the same exculpatory explanation for his whereabouts. A pre-trial voir dire resulted in admission of the second statement to police. The accused testified at trial, advancing an alibi consistent with his second statement. However, the accused's testimony named his wife as the person he was with prior to the robbery, whereas his statement to police mentioned a woman named Sasha. The accused was convicted by a judge sitting with a jury. He appealed on the basis the trial judge erred in admitting the second statement to police. ... [read more]

Monday, March 20, 2017 @ 7:49 AM

HUNTING, FISHING AND LOGGING RIGHTS - Logging - Aboriginal lands - Non-aboriginal lands - Crown lands - Regulation of - Licences - Offences and penalties - Constitutional issues - Practice and procedure - Costs

Application by the Crown for leave to withdraw criminal charges against band members of the Batchewana First Nation under the Crown Forest Sustainability Act. In 2008, the defendants were charged with unlawfully harvesting forest resources in a Crown forest without the authority of a forest resource license. The first court appearance for the matters occurred in November 2008, and there were many subsequent court and procedural attendances and pre-trials. The defendants had prepared an expert report that Crown counsel received shortly after its production in May 2014. The defendants had pled not guilty to all charges in September 2015. A trial of the matter was set to commence in May 2016. On the eve of trial, Crown counsel indicated that it was the Crown’s intention not to proceed with the prosecution and that the Crown would seek leave to withdraw the outstanding charges. The defendants opposed the cessation of the proceedings on the basis that the prosecution had much greater significance to the litigants. It was hoped the proceedings would address issues of treaty and aboriginal rights. The Batchewana First Nation community had filed a Notice of Constitutional Question to determine their grievances relating to access to timber resources, land and treaty claims. The Batchewana First Nation had argued that, according to the terms of a treaty, they continued to have aboriginal title and rights to lands where the disputed logging occurred. The defendants had argued, among other things, that the use of the lands was protected by s. 35 of The Constitution Act, 1982. The issues before the Court were whether the Crown should have been granted leave to withdraw charges, and if the Crown was not granted leave, how the parties were to proceed, and whether the defendants were entitled to all or a portion of their legal costs paid by the Crown. ... [read more]