top cases
From drug seizures to pensions 2009 landmark rulings from the courts
BY ROBERT TODD O
ntario lawyers received a wide range of direction from the judiciary this year, with the bench weighing in on key issues likely to help shape the law for decades to come.
In April, the Supreme Court of Canada was criticized for its take on
Ontario's Civil Remedies Act. At least one criminal law practitioner said the decision meant individuals proven innocent would still face punishment. The top court issued a fresh approach for judges weighing tainted evidence at trial with
and its companion cases, throwing
out a conviction involving a $4-million cocaine seizure. Lawyers rejoiced at that decision, saying it created a more workable framework. The Supreme Court also delivered good news to employers with its decision in
in which it ruled the company
was free to take contribution holidays from its pension plan. Ontario's Superior Court, meanwhile, issued a key ruling for the families of motor vehicle collisions. Late in the summer, Justice Peter Howden set aside significant funds from an $18.4-million award for the family of crash victim Katherine-Paige MacNeil. The ruling offered some comfort to those delivering around-the-clock care for their catastrophically injured loved ones.
The following are among the most significant court rulings in 2009:
Chatterjee v. Ontario (Attorney General)
The criminal defence bar was quick to condemn the Supreme Court's decision in Chatterjee v. Ontario (Attorney General), with one lawyer saying the top court had given its consent to a form of "double punishment" for the accused. "You go to court, the Crown knows full well that the
charges are terrible and they can't make out their case because the search was horrible, so they withdraw the charge, and then they bring a Civil Remedies Act application to keep the money that they found on the accused," Toronto criminal defence lawyer Leora Shemesh told Law Times. "It sort of leaves open the possibility that if police get
things wrong, they can still make it right by taking people's monies, and homes, and cars, and so forth. So you're being punished in the eyes of the law, or being criminalized, with- out actually being proven guilty." The April decision followed Robin Chatterjee's March
2003 arrest for breach of probation. Police searched his car during the arrest and discovered $29,020 in cash, an exhaust fan, a light ballast, and a light socket. Drugs were not found, but police said the items smelled of marijuana.
8 December 2009
Chatterjee was not charged with any crimes related to the money, items, or any drug-related activity. But in May 2003, Ontario's attorney general was granted
an order under the Civil Remedies Act to keep the money and equipment. The province then used the act to apply for forfeiture of the money as the proceeds of unlawful activities and the other items as the instruments of unlawful activity. The top court rejected Chatterjee's argument that the
act is an unconstitutional intrusion on the federal crimi- nal law power. "The argument that the [law] is ultra vires is based in this
case on an exaggerated view of the immunity of federal juris- diction in relation to matters that may, in another aspect, be the subject of provincial legislation," wrote the court. The court said that provincial treasuries take a hit from
crime in areas such as health, policing, community stabil- ity, and family welfare. Because of that, it's reasonable for the province to take steps like the Civil Remedies Act to discourage crime, the court reasoned. Chatterjee's lawyer, partner James Diamond of Levine
Sherkin Boussidan, went as far as to suggest the decision damages federalism. "It appears there's certainly a blurring of the lines between
federal and provincial jurisdictions," said Diamond. "I'm not saying it's the end of federalism as we know it, but it certainly appears that it's leaning that way."
R. v. Harrison and companion cases
The Supreme Court of Canada made waves this year when it reconstituted the test for tainted evidence submitted at trial in a case involving a $4-million cocaine seizure. Courts now must weigh three factors in deciding
whether to admit evidence that could bring the admin- istration of justice into disrepute: the seriousness of the Charter-infringing conduct; the impact of the breach on the Charter-protected interests of the accused; and society's interest in the adjudication of the case on its merits. Chief Justice Beverley McLachlin, in issuing the court's
reasons in R. v. Harrison, wrote that police showed a "blatant disregard for Charter rights" after pulling over Bradley Har- rison's rented SUV in Kirkland Lake, Ont., in October 2004. Harrison was driving with a friend from Vancouver to
Toronto at the time, and police thought it was strange that he was driving the speed limit and did not have a front licence plate on the vehicle. The officer later realized that
R.
v Harrison .
Nolan v .
K
erry (Canada) Inc.
