Friday, June 24, 2016

Supreme Court holds tribunal finding is entitled to deference

British Columbia (Workers' Compensation Appeal Tribunal) v. Fraser Health Authority, 2016 SCC 25:

The standard of review applicable to a tribunal's original decision requires curial deference, absent a finding of fact or law that is patently unreasonable. Because a court must defer where there is evidence capable of supporting a finding of fact, patent unreasonableness is not established where the reviewing court considers the evidence merely to be insufficient.


Of the Law Societies of Upper Canada and Nunavut 

Thursday, June 23, 2016

Penile swab legitimate incident to arrest

Saeed, 2016 SCC 24:

To be reasonable and therefore consistent with s. 8  of the Charter : (1) a search must be authorized by law; (2) the authorizing law must be reasonable; and (3) the search must be conducted reasonably. Determining whether the common law power of search incident to arrest may reasonably authorize a penile swab involves striking a proper balance between an accused's privacy interests and valid law enforcement objectives. In some cases, an accused's privacy interests will be so high as to be almost inviolable. In those cases, the common law power of search incident to arrest must yield, and a search will be allowed only where the accused consents, or a warrant is obtained, or perhaps in exigent circumstances. In others, while the accused's privacy interests may be significant, they will not be so significant as to preclude the power of the police to search incident to arrest. In these cases, the existing general framework of the common law power of search incident to arrest must instead be tailored to ensure the search will be Charter ‑compliant. This case falls into the second category. 

                    A penile swab does not fall within the scope of R. v. Stillman, [1997] 1 S.C.R. 607. First, a penile swab is not designed to seize the accused's own bodily materials but rather, the complainant's. Accused persons do not have a significant privacy interest in a complainant's DNA. Second, a penile swab is in some ways less invasive than taking dental impressions and the forcible taking of parts of a person. Third, unlike with the accused's bodily materials or impressions, evidence of the complainant's DNA degrades over time. In sum, a penile swab implicates different privacy interests and law enforcement objectives than seizures of an accused's bodily samples and impressions.

                    The common law power of search incident to arrest must be delineated in a way that is consistent with s. 8  of the Charter . There can be no doubt that requiring a penile swab is an intrusion on an accused's privacy. A penile swab has the potential to be a humiliating, degrading and traumatic experience. On the other side of the ledger, it can serve important law enforcement objectives. It can enable the police to preserve important evidence that runs the risk of degrading or being destroyed. Sexual assaults are notoriously difficult to prove and this type of evidence is highly reliable. A penile swab can be crucial in the case of complainants who are unable to testify. The privacy interests at issue are similar to those implicated in strip searches and they can be protected by a similar approach. As with strip searches, the common law must provide a means of preventing unjustified searches before they occur and a means of ensuring that when these searches do occur, they are conducted in a reasonable manner. The reasonable grounds standard and guidelines regarding the manner of taking the swab provide these two protections. These two modifications to the common law power of search incident to arrest ensure that it is Charter ‑compliant.

                    The police may take a penile swab incident to arrest if they have reasonable grounds to believe that the search will reveal and preserve evidence of the offence for which the accused was arrested. The reasonable grounds standard will prevent unjustified searches before they occur and will hold the police to a higher level of justification before they can take a penile swab. Whether reasonable grounds have been established will vary with the facts of each case. Relevant factors include the timing of the arrest in relation to the alleged offence, the nature of the allegations, and whether there is evidence that the substance being sought has already been destroyed. The potential for destruction or degradation of the complainant's DNA will always be a concern in this context. 

                    The swab must also be conducted in a reasonable manner. The following factors will guide police in conducting penile swabs incident to arrest reasonably. A swab should, as a general rule, be conducted at the police station. It should be conducted in a manner that ensures the health and safety of all involved. It should be authorized by a police officer acting in a supervisory capacity. The accused should be informed shortly before the swab of the nature of the procedure, its purpose and the authority of the police to require the swab. The accused should be given the option of removing his clothing and taking the swab himself or the swab should be taken or directed by a trained officer or medical professional, with the minimum of force necessary. The officers carrying out the swab should be of the same gender as the accused unless the circumstances compel otherwise. There should be no more police officers involved in the swab than are reasonably necessary in the circumstances. The swab should be carried out in a private area. It should be conducted as quickly as possible and in a way that ensures that the person is not completely undressed at any one time. A proper record should be kept of the reasons for and the manner in which the swabbing was conducted.



Of the Law Societies of Upper Canada and Nunavut 

Wednesday, June 22, 2016

Self Defence Not to be Analyzed from a Viewpoint of Perfection

R. v. Cunha, 2016 ONCA 491:

[24]        I accept the appellant's argument that "the trial judge parsed the appellant's reactions down to the split-second and held him to a standard of perfection, informed by his hindsight knowledge that Mr. Barros was actually unarmed and that Mr. Massaquoi had already left the house through the back door." This was an error in principle, since the trial judge lost sight of the whole factual context and the tableau of the evidence.

[25]        This was plainly a case for the court to keep in mind that in considering the reasonableness of the defendant's use of defensive force, the court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection. However, the trial judge held the appellant to a standard of perfection.

[26]        The trial judge found that the appellant subjectively feared for his life, for his friend, and for his property. He stated: "I accept also that Mr. Cunha was probably feeling fear at that time, including fear for his life and also fear for his friend Mr. Silva." 

[27]        As noted above, self-defence can be invoked on the basis of reasonable mistakes of fact. This includes mistaking whether the putative assailant was armed as was the case here. The trial judge's finding that Mr. Barros was unarmed is not fatal to the appellant's self-defence claim.  

[28]        As I see it, the trial judge effectively imposed on the appellant an obligation to wait and see whether Mr. Barros had a gun or other weapon before acting.  Although the appellant had the advantage over Mr. Barros at the moment when he ordered him to freeze, he would have lost that advantage had he waited, and would have exposed himself to risk of serious harm if Mr. Barros had been carrying a gun. As this court noted in R. v. Quinn, 2014 ONCA 650 at para. 10: "This was a fast-paced event that should have not be viewed on a frame-by-frame basis."



Of the Law Societies of Upper Canada and Nunavut

Does a lawyer become liable to pay costs personally because he starts an action that has little chance of success? Maybe

Yesterday's decision in Best v. Ranking, 2016 ONCA 492 suggests counsel is not liable for costs for pursuing a weak action. But the court goes on to say the weakness of a case "is not unfamiliar in this context". What that means is rather unclear but it suggests counsel is at risk of pursuing a weak action. Some might say the facts in the case were extreme but suggest counsel ought to exercise special caution in acting:

[50]        I agree with the submission of the appellant that the fact that a lawyer starts an action which is unlikely to succeed is not, on its own, a basis to award costs personally against that lawyer. 

[51]        Rule 57.07 is "designed to protect and compensate a party who has been subjected to costs being incurred without reasonable cause, not to punish a lawyer": Galganov, at para. 14. 

[52]        The motion judge here did not make Mr. Slansky liable for costs personally simply because he started a case that was weak. As the motion judge pointed out, the nature of the proceedings is an important contextual factor in assessing whether costs wasted by a solicitor justify an order that he pay costs personally.

[53]        As this court held in Galganov, at para. 20:

[R]ule 57.07(1) requires an examination of "the entire course of litigation that went on before the application judge so that the application judge can put in proper context the specific actions and conduct of counsel." This holistic examination of the lawyer's conduct produces an accurate tempered assessment. [Citation omitted.]

[54]        The motion judge examined the entire course of the litigation in assessing the specific actions and conduct of counsel, as she was required to do. In particular, she focused on the vexatious or abusive nature of the proceeding. This is not a necessary element of an award of costs against counsel personally but is not unfamiliar in this context. (See e.g. Soderstrom v. Hoffman-LaRoche Limited(2008), 58 C.P.C. (6th) 160 (Ont. S.C.J.); Donmor Industries Ltd. v. Kremlin Canada Inc. (No. 2) (1992), 6 O.R. (3d) 506 (Gen. Div.); and Baryluk (Wyrd Sisters) v. Campbell (2009), 81 C.P.C. (6th) 172 (Ont. S.C.J.).)





Of the Law Societies of Upper Canada and Nunavut 

Tuesday, June 21, 2016

Judicial Bias Claim

Beard Winter LLP v. Shekhdar, 2016 ONCA 493:


[10]        It is important that justice be administered impartially.  A judge must give careful consideration to any claim that he should disqualify himself on account of bias or a reasonable apprehension of bias.  In my view, a judge is best advised to remove himself if there is any air of reality to a bias claim.  That said, judges do the administration of justice a disservice by simply yielding to entirely unreasonable and unsubstantiated recusal demands.  Litigants are not entitled to pick their judge.  They are not entitled to effectively eliminate judges randomly assigned to their case by raising specious partiality claims against those judges.  To step aside in the face of a specious bias claim is to give credence to a most objectionable tactic.

[11]        In my view, a reasonably objective observer would give no weight to the claims of partiality advanced by the moving party in his 61-page document.  The challenged decisions were made by a unanimous three-judge panel.  To my knowledge, none were appealed.  The moving party is certainly entitled to his own opinion about the adequacy of the reasons and the correctness of those decisions.  However, the personal opinion of the losing litigant as to the quality and correctness of the court's decision counts for little when assessing a partiality claim.  It is understandable that losing litigants sometimes firmly believe that the court got it all wrong.  To jump from that conclusion to allegations of racism and corruption is irresponsible and irrational.

[12]        The moving party's subjective opinion about the tone of my voice, my appearance and attentiveness during the proceedings cannot, standing alone, overcome the strong presumption in favour of judicial impartiality.  His assessments are necessarily subjective.  It is perhaps not surprising that a losing litigant takes offence with the tone or appearance of the judge delivering the decision against the losing litigant. 

[13]        A reasonable observer, in considering the allegations made by the moving party, would also take into account that this moving party has made similar allegations of serious misconduct against a great many people involved in the judicial process, including many judges.  The moving party offers no evidence that any of the many allegations he has made have ever been made out to the satisfaction of anyone other than himself.  

[14]        There is no air of reality to the moving party's allegations of bias.  I did not recuse myself.



Friday, June 17, 2016

Pith and Substance

In Canadian constitutional law the division of jurisdictions is based on legislative power being exercised within limited heads of power - for example property and civil rights.  But to determine where legislation properly falls the court must consider the pith and substance of the legislation. The Supreme Court rules in Rogers Communications Inc. v.Ch√Ęteauguay (City) 2016 SCC 23 as follows:

[36]                          In analyzing the pith and substance of the notice of a reserve, the Court must consider both its purpose and its effects: Goodwin, at para. 21; Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 S.C.R. 693, at para. 29; Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837, at paras. 63‑64; Quebec (Attorney General) v. Lacombe, 2010 SCC 38, [2010] 2 S.C.R. 453, at paras. 20‑22. The purpose of a municipal measure, like that of a law, is determined by examining both intrinsic evidence, such as the preamble or the general purposes stated in the resolution authorizing the measure, and extrinsic evidence, such as that of the circumstances in which the measure was adopted: Lacombe, at paras. 20‑22; COPA, at para. 18; Canadian Western Bank, at para. 27. As for the effects of a municipal measure, they are determined by considering both the legal ramifications of the words used and the practical consequences of the application of the measure: R. v. Morgentaler, [1993] 3 S.C.R. 463, at pp. 482‑83. 

[37]                          When conducting a pith and substance analysis, a court must avoid adopting the watertight compartments approach, which this Court has in fact rejected. The fact that a measure has what are merely incidental effects on an exclusive head of power of the other level of government does not suffice to justify declaring that measure to be ultra viresCOPA, at para. 18. 

[38]                          Our colleague correctly points out, at para. 85 of his reasons, that when the courts apply the various constitutional doctrines, they must take into account the principle of co‑operative federalism, which favours, where possible, the concurrent operation of statutes enacted by governments at both levels: Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd., 2015 SCC 53, [2015] 3 S.C.R. 419, at para. 22, quoting Lacombe, at para. 118, per Deschamps J. (dissenting); Marine Services, at para. 50, citing General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; Canadian Western Bank, at para. 37. 

[39]                          However, although co‑operative federalism has become a principle that the courts have invoked to provide flexibility for the interpretation and application of the constitutional doctrines relating to the division of powers, such as federal paramountcy and interjurisdictional immunity, it can neither override nor modify the division of powers itself. It cannot be seen as imposing limits on the valid exercise of legislative authority: Quebec (Attorney General) v. Canada (Attorney General), at paras. 17‑19. Nor can it support a finding that an otherwise unconstitutional law is valid. This Court commented as follows in Reference re Securities Act, at para. 62:

                        In summary, notwithstanding the Court's promotion of cooperative and flexible federalism, the constitutional boundaries that underlie the division of powers must be respected. The "dominant tide" of flexible federalism, however strong its pull may be, cannot sweep designated powers out to sea, nor erode the constitutional balance inherent in the Canadian federal state.



Of the Law Societies of Upper Canada and Nunavut