Law Times

Law Times • JuLy 23, 2018 Page 13 www.lawtimesnews.com Supreme Court of Canada Aboriginal Law CONSTITUTIONAL ISSUES Fiduciary duty of Crown Correctional Services breaching obligations by relying on tools without confirming validity when applied to Indigenous persons Appellant offender was con- victed of murder and attempted murder in two separate inci- dents in 1984. At trial, E, who is Metis, challenged use of five psychological and actuarial risk assessment tools. E claimed that these tools had been developed and tested on predominantly non-Indigenous populations and that there was no research confirming that they were valid when applied to Indigenous per- sons. E claimed that while he has been incarcerated, Correctional Services of Canada ("CSC") has relied on these tools in conduct- ing needs and risk assessments on him. Federal Court trial judge concluded that, by relying on these tools despite long-stand- ing concerns about their appli- cation to Indigenous offenders, CSC had breached its obligation under s. 24(1) of Corrections and Conditional Release Act ("CCRA") and had unjustifiably infringed E's rights under s. 7 of Canadian Charter of Rights and Freedoms. Trial judge ordered interim injunction that prohib- ited CSC from using results gen- erated by impugned tools with respect to E. Federal Court of Appeal overturned both of these findings. E appealed. Appeal al- lowed in part. Under s. 24(1) of CCRA, CSC shall take all rea- sonable steps to ensure that any information about offender that it uses is as accurate, up to date and complete as possible. In light of words, context and pur- pose of s. 24(1) of CCRA, results generated by impugned tools are "information" within meaning of that provision. Section 4(g) of CCRA represents acknowledge- ment of systemic discrimination faced by Indigenous persons in Canadian correctional system. Giving it meaningful effect in- cludes addressing long-stand- ing, and credible, concern that continuing to use impugned risk assessments in evaluating Indigenous inmates perpetu- ates discrimination and contrib- utes to disparity in correctional outcomes between Indigenous and non-Indigenous offenders. Fact that s. 4(g) was intended to remedy troubled relationship between Canada's criminal jus- tice system and its Indigenous peoples informs its interpreta- tion. E granted declaration that CSC breached its obligation set out in s. 24(1) of CCRA. Ewert v. Canada (2018), 2018 CarswellNat 2804, 2018 CarswellNat 2805, 2018 SCC 30, 2018 CSC 30, McLach- lin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); reversed (2016), 2016 CarswellNat 3417, 2016 CarswellNat 9943, 2016 FCA 203, 2016 CAF 203, Marc Nadon J.A., Eleanor R. Dawson J.A., and Wyman W. Webb J.A. (F.C.A.). Constitutional Law CHARTER OF RIGHTS AND FREEDOMS Nature of rights and freedoms Decision to refuse to approve proposed law school represented proportionate balance Respondent university, TWU, educational arm of evangelical Christian church, sought ap- proval for proposed common law degree program. TWU required its students to sign community covenant ("Cov- enant") that members abstain from certain conduct, includ- ing "sexual intimacy that vio- lates the sacredness of marriage between a man and a woman". Benchers held binding referen- dum of members of appellant law society, LSBC. Seventy-four per cent of LSBC members voted to declare that TWU's proposed law school was not approved for purposes of LSBC's admissions program. TWU successfully ap- plied for judicial review. LSBC's decision quashed. Court of Ap- peal upheld lower court decision and concluded that decision not to approve TWU's law school did not represent proportionate balance between LSBC's statuto- ry objectives and relevant Char- ter protections. LSBC appealed. Appeal allowed. Effect of LSBC's decision was limitation on right of TWU's community members to enhance their spiritual devel- opment through studying law in environment defined by their religious beliefs in which mem- bers follow certain religious rules of conduct. Accordingly, religious rights were engaged by decision. LSBC's decision rea- sonably balanced severity of in- terference with Charter protec- tion against benefits to its statu- tory objectives. LSBC's decision did not prevent any graduates from being able to practise law in British Columbia, nor did it prohibit any evangelical Chris- tians from adhering to Cove- nant. Interference was limited to preventing prospective students from studying law at TWU with mandatory covenant. Refusal to approve proposed law school meant that members of TWU religious community were not free to impose those religious beliefs on fellow law students, since they had inequitable im- pact and could cause significant harm. Given significant benefits to relevant statutory objectives and minor significance of limi- tation on Charter rights at issue, decision to refuse to approve TWU's proposed law school represented proportionate bal- ance. LSBC's declaration that TWU's proposed law school not be approved was restored. Law Society of British Co- lumbia v. Trinity Western University (2018), 2018 Car- swellBC 1510, 2018 CarswellBC 1511, 2018 SCC 32, 2018 CSC 32, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); re- versed (2016), 2016 CarswellBC 3008, 2016 BCCA 423, Bauman C.J.B.C., Newbury J.A., Grober- man J.A., Willcock J.A., and Fen- lon J.A. (B.C. C.A.). Federal Court of Appeal Pensions FEDERAL AND PROVINCIAL PENSION PLANS Federal pension plans Proof that claimant suffered from chronic pain syndrome did not automatically mean claimant was entitled to disability benefits General Division of Social Secu- rity Tribunal (SST-GD) upheld denial of Canada Pension Plan disability benefits to claimant because he did not establish that he suffered from severe and pro- longed disability. Appeal Divi- sion of Social Security Tribunal (SST-AD) dismissed claimant's appeal. Claimant brought appli- cation for judicial review. Appli- cation dismissed. SST-AD's de- cision was reasonable. Jurispru- dence did not stand for proposi- tion that SST-AD may re-weigh evidence that was before SST- GD. Proof that claimant suffered from chronic pain syndrome did not automatically mean that claimant was entitled to disabil- ity benefits. SST-GD and SST- AD did not make reviewable er- ror in assessing claimant's claim, as there were facts to support conclusion that he did not meet statutory definition of disability. Garvey v. Canada (At- torney General) (2018), 2018 CarswellNat 2890, 2018 FCA 118, D.G. Near J.A., Mary J.L. Gleason J.A., and J.B. Laskin J.A. (F.C.A.). Federal Court Tax INCOME TAX Administration and enforcement Federal Court did not have jurisdiction to vacate penalty on basis of due diligence defence Waiver of penalty. Taxpayer, who was recent immigrant, failed to file foreign income verification statements for 2013 and 2014 by deadline because she thought that, when no tax was owed, deadlines did not ap- ply. Minister of National Rev- enue denied taxpayer's request to waive penalties and interest assessed against her for late fil- ing of forms. Taxpayer brought application for judicial review. Application dismissed. Federal Court did not have jurisdiction to vacate penalty on basis of due diligence defence. Taxpayer had already unsuccessfully sought to have her request reconsidered. Taxpayer could make further application to Canada Revenue Agency or appeal assessment of penalty to Tax Court. Biswal v. Canada (Attorney General) (2017), 2017 Carswell- Nat 2563, 2017 CarswellNat CASELAW Caselaw is a weekly summary of notable civil and criminal court decisions by the Supreme Court of Canada, the Federal Court of Canada and all Ontario courts. These cases may be found online in WestlawNext Canada. To subscribe, please access carswell.com or call 1-800-387-5164. CASELAW This is more than a phone book. 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